1614678 (Refugee)

1614678 (Refugee) [2018] AATA 4645 (21 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1614678
COUNTRY OF REFERENCE:                  India
MEMBER:Paul Windsor
DATE:21 November 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 21 November 2018 at 11:48am
CATCHWORDS
REFUGEE – protection visa – India – imputed political opinion – former Shiromani Akali Dal Party supporter – objects to party corruption – ceased political donations – harassement by the party
credibility issues – delay in applying for protection visa – protection claims not raised during MRT review of other visa – vague evidenced about political donations – second named applicant – member of the same family unit – child not included in application – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth) Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 September 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of India, applied for the visas on 12 May 2016. The delegate refused to grant the visas on the basis that [the first named applicant]’s claims to have been threatened by members of the Shiromani Akali Dal party are vague, confused and lack detail, noting that she claims to have witnessed party members taking bribes on a recent visit back to her home country but Departmental systems indicate she has not returned to India since arriving in Australia. Additionally, no evidence has been provided to substantiate her claims. The delegate also noted that [the first named applicant] lodged her application over two years after she had arrived in Australia, at a time when her [temporary] visa had been cancelled and all other visa options were exhausted. The delegate was not convinced on the evidence before him that her claims are genuine.
The applicants sought review of this decision on 12 September 2016. They provided the Tribunal with a copy of the delegate’s decision record.[1]
[1] See folios 1-6 of the Tribunal file.
The applicants appeared before the Tribunal on 20 November 2018 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
In her Protection visa application [the first named applicant] indicates that she was born in [Town 1] in Punjab state India on [date]. She states she is of Sikh ethnicity, her religion is Sikhism and that she speaks, reads and writes Hindi, Punjabi and English.
In his Protection visa application [the second named applicant] indicates that he was born in [a village] in Punjab state India on [date]. He states he is of Sikh ethnicity, his religion is Sikhism and that he speaks, reads and writes Hindi, Punjabi and English.
The applicants indicated they were married [in] December 2013. They departed India legally on 4 May 2014 and arrived in Australia on 5 May 2014, entering on [temporary] visas. [The first named applicant] indicated that she is pregnant and due to give [birth].[2]
[2] See folios 15-64 of the Departmental file.
[The first named applicant]’s claims are contained in a letter dated 12 May 2016 included with the applications. [The second named applicant] has not made claims in his own right but has applied on the basis of being a member of the same family unit as [the first named applicant]. He confirmed this at the hearing. [The first named applicant]’s claims are summarised as follows:[3]
·She always supported Shiromani Akali Dal (SAD), a powerful ruling party of Punjab. As an NRI she always helped the party in the form of money she donated.
·When she returned to India recently she saw the leaders of the party taking bribes from the people, so she decided to quit donating money to the party. From that time they started bothering her and demanding that she pay a huge amount.
·When it was her wedding she didn’t invite the party leaders so they started spreading rumours about her. She was very afraid of the corrupt leaders and very concerned about her family.
·She tried to live in some other part of her country but as they have political links they tried to harm her and her family members.
·As they are the dominant political leaders in Punjab if she tried to lodge a complaint against them her case will be easily manipulated and will fall to dumb ears.
·She has no faith in the Indian police. She belongs to a very middle class family while they are rich people. If someone has money in India they can pay the police and the case can be manipulated.
[3] See folios 87-88 of the Departmental file.
Findings and reasons
The issues in this review are whether the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of their being removed from Australia to their receiving country of India, there is a real risk that they will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicants’ identities
On the basis of the copies of the applicants’ Indian passports provided to the Department,[4] and noting the delegate’s findings in relation to this matter, the Tribunal accepts that the applicants are citizens of India and that their identities are as they claim them to be. The Tribunal accepts that India is the applicants’ ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Credibility
[4] See folios 83-86 of the Departmental file.
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (the United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
The Tribunal did not find [the first named applicant] to be a credible witness. As discussed further below, her evidence was vague, confused and unconvincing and her oral evidence contradicted key elements of her written statement of 12 May 2016. The Tribunal does not accept that she has provided a true account of her experiences.
Assessment of claims
[The first named applicant] claims to fear harm from the SAD political party because she ceased supporting the party as she found out they took bribes from the people. In her written statement of 12 May 2016 she claimed that when she stopped donating money to the party they started to bother her and demanded a huge payment. She stated that when she did not invite leaders of the party to her wedding they spread rumours about her and tried to harm her and her family members.
At the start of the hearing [the first named applicant] confirmed that her written statement was true and correct as far as she knew and understood and indicated that she did not wish to make any amendments. She indicated that she prepared her statement by herself without any assistance from a third party.
[The first named applicant] indicated that she was born in [Town 1] approximately three hour’s drive [from] Amritsar in northern Punjab state India. She indicated that he father is a farmer who has [land] on which he grows [crops]. She indicated that she completed 12 years’ of schooling and then undertook a Bachelor [degree] which she completed in mid-2013. Contrary to what is stated in her Protection visa application she said she worked for three years [as an Occupation 1], at the same time as she was studying for her Bachelor [degree]. When queried about this she said she thought that the question (Number 84) in the application related to work in Australia. The Tribunal accepts this explanation and that [the first named applicant] did some [Occupation 1] work in India.
[The first named applicant] indicated that her marriage to [the second named applicant] was a traditional Sikh marriage arranged by her parents. She said they had a traditional ceremony with between 50 and 100 guests about two months before their ‘court marriage’ (which was [in] December 2013).
The applicants indicated that neither of them is working in Australia and they support themselves with assistance from [the first named applicant]’s family in India and a cousin of hers in [another country].
[The first named applicant] indicated that she had never travelled outside of India before she came to Australia and, contrary to her written statement of 12 May 2016, had not returned to India since she arrived in Australia on 5 March 2014.
The Tribunal asked [the first named applicant] why she referred to herself in her statement as a Non-Resident Indian (NRI). She said it was because she was living in Australia.
The Tribunal asked [the first named applicant] why she supported the SAD party. She said she thought they were a very good party who were supporting the poor people. Noting that the applicant had indicated that neither she nor her husband were working in Australia and her statement indicated that as ‘an NRI’ she helped the party by donating money, the Tribunal queried her regarding how much she donated to the party and how often. She said she gives a small amount of money and also donates some clothes. The Tribunal pressed the applicant regarding how much money she donated and how often she donated money. She replied that she gave whenever she was feeling she should. When pressed further, contrary to her statement that she donated money as an NRI, she said that she didn’t support the party while she was in Australia, but while she was in India she supported the party at the village level through the Sarpanch (chair of the elected council) of her village who was a SAD representative. The Tribunal again asked the applicant how much she gave and how often. She replied that she gave many times and as she worked as [an Occupation 1] she would give money when she was paid. When asked again how much she gave, she said INR4,000 to INR5,000 (AUD77 to AUD 96). When asked how often she was paid the applicant said she gave money whenever the party needed it. When pressed she said she gave about once every two months. She indicated that she was paid INR10,000 (AUD 192) a month when she started [working as an Occupation 1] and that this later increased to INR15,000 (AUD 289). The applicant commented that while she supported SAD when she was in India she changed when she came to Australia. She added that she told her family and relatives to support SAD.
Noting that her written statement of 12 May 2016 reads ‘when I returned to my home country recently I saw the leaders of that party taking bribes from the people’ and so decided to stop ‘giving the money as donation’ yet she had indicated that she had not returned to India, the Tribunal asked [the first named applicant] why she had stated she had returned recently. She replied that it is true that she has never returned home but said when she came to know about bribes she stopped giving donations. She said she must have made a mistake when she prepared her application. When queried how she saw SAD leaders taking bribes she said she meant that in India people are taking bribes wherever you go. The Tribunal queried the applicant that if she was not in India how could these people ‘bother’ her and demand she pay a ‘huge amount’. She replied that her family were facing the problems and are still facing problems. She said the SAD people are compelling her family members to tell her to send them the money.
The Tribunal queried the applicant that paragraph 6 of her statement refers to her wedding, which occurred before she came to Australia, so her comment that they started spreading rumours about her and tried to put hurdles in her way seems inconsistent with her earlier comment that she changed from supporting SAD after she came to Australia. She replied that there was some dispute between the parties and they thought she was involved with that so they started creating problems for her. She added that wherever they went they were scared something might happen to them. She said that when they went to the airport to depart for Australia they had electronic visas and were told there was a problem with her husband’s visa. She said this was because there were party members at the airport who were telling a lie. She said they had to wait three days at the airport before they could leave. The Tribunal queried the applicant that this would seem to have been an issue with Immigration officials at the airport rather than with SAD members. She said there were immigration officials but also 2-3 other people, and when they finally got a print-out to show that her husband had a visa, the other people were no longer there. The Tribunal queried the applicant that she had not mentioned this incident in her written statement but had said she had tried to live in another part of the country. [The first named applicant] replied that SAD are the ruling party and have links all over the country. The Tribunal asked the applicant to confirm when she stopped supporting SAD. She said she could not remember but it was a long time back. When asked if it was before or after her wedding, she said it was before she was married.
The Tribunal queried [the first named applicant] why SAD would bother her, as a young person ([age years old] when she married) who claims to have made a relatively small donation to the party every two months plus provided some clothes. She replied that it was because she stopped supporting them and in India they take big decisions for small matters.

The Tribunal asked [the first named applicant] about the comment in her statement that she had tried to live in some other part of the country but as they have political links they tried to harm her and her family members. She said initially she was in her home town but then shifted to Ludhiana. Noting that she had indicated she was studying as well as working as [an Occupation 1] the Tribunal asked when this occurred. She replied that she did not shift but stayed with a friend. The Tribunal asked her how she was able to work as [an Occupation 1] if she was in Ludhiana, 100 kilometres away. She said she went to stay with her friend during the school holidays, when the school was closed. When queried regarding how they tried to harm her and her family, [the first named applicant] said her brother who was studying received threats that they would kill him. When asked if anything else happened, the applicant said they just want her and her husband to be there and they will be harmed.
The Tribunal also queried [the first named applicant] about her immigration history and the concerns expressed by the delegate in his decision record that she only made a Protection visa application after she had exhausted all other options. She replied that she came on a [temporary] visa and did not think there would be problems. She indicated her focus was on getting a [temporary] visa but this was not granted. The Tribunal asked [the first named applicant] if she raised her concerns regarding SAD and about returning to India when she sought Ministerial Intervention after her application for judicial review of the decision by the former Migration Review Tribunal to affirm the cancellation of her [temporary] visa was unsuccessful (in June 2015). She said she did not. When asked why she did not raise this if her problems with SAD are as serious as she suggests she said at the time she was not aware of how to do this or the importance of raising it.
The December 2016 DFAT Thematic Report on Punjab indicates that, at the time the report was issued, the government in Punjab state was a coalition of two parties: the SAD as the senior partner and the Bharatiya Janata Party (BJP) as the junior coalition partner - elected in 2007 and re-elected in 2012. The report indicates that SAD is a primarily Sikh-based regional party that was actively involved in the movement to create a separate Punjabi-speaking state in northern India, a goal which was achieved in 1966 with the creation of the Sikh-majority Punjab State. As discussed with the applicant, the report indicates that elections in Punjab are generally free and fair and vigorously contested and that opposition parties are generally able to freely campaign and put forward their views. DFAT states that opposition parties are often quoted at length in the media when they criticise government policy, and credible interlocutors (including academics and media representatives) told DFAT that they are comfortable that they can publicly criticise the government without fear of harassment or detention.[5]
[5] DFAT Thematic Report, Indian State of Punjab, 7 December 2016.
Consistent with the DFAT advice that elections in Punjab are generally free and fair and vigorously contested, the Tribunal also discussed with [the first named applicant] country information indicating that the SAD-BJP coalition government was swept from power in the March 2017 state election where it gained only 18 seats against the Indian National Congress (INC) party’s 77 seats in the 117 member Punjab state Assembly. Reporting indicated that Prime Minister Narendra Modi, of the ruling (nationally) BJP congratulated INC Punjab state leader Amarinder Singh on his win.[6] The Tribunal also discussed with the applicant that country information indicates that in September 2018 the ruling INC went on to sweep local government elections in Punjab state, winning 331 ‘Zila Parishad’ seats against SAD’s 18 seats and 2351 ‘Panchayat Samiti’ seats against SAD’s 353.[7] The Tribunal put to [the first named applicant] that based on this information it would seem that SAD are no longer the dominant political force in Punjab and would not be able to manipulate any complaints or cases she might make against them. [The first named applicant] commented that SAD are still in power in the village where she was living and it doesn’t matter whether SAD are in government or not as they have links throughout the country and no place is safe for her. She commented that while politicians show they are very happy when facing the media behind the scenes the story is different and at election time there is always gunfire and things happening. She said she is especially concerned now that she has an infant son, adding that it would be very difficult for them to survive in India now as her son was born and brought up in Australia and there is no future for them in India as there are a lot of problems there.
[6] ‘Congress gets majority in 117-member Punjab Assembly’, The Hindu, 11 March 2017, ‘Ruling Congress sweeps rural elections in Punjab’, The Hindu, 24 September 2018, >
The Tribunal found unconvincing [the first named applicant]’s central claim to have supported the SAD through regular donations and to have been subjected to threats and harassment after ceasing her donations because she became aware that SAD leaders took bribes. The Tribunal found that [the first named applicant] did not provide a satisfactory explanation regarding why her written statement of 12 May 2016 indicated that she supported the SAD in the form of money as a donation as a Non-Resident Indian (that is, when living abroad after she came to Australia in March 2014), and stopped supporting them after she returned to her home country ‘recently’ when she saw the SAD leaders taking bribes from the people. At the hearing [the first named applicant] indicated that she ceased donating to the party before she came to Australia (before her wedding in 2013) and that she had never travelled outside of India previously or returned to India since she arrived in Australia. [The first named applicant] commented that she must have made a mistake in her application and that what she really meant was that in India people take bribes wherever you go. She did not explain, however, how she could have made such a significant and fundamental error in her written statement.
[The first named applicant]’s explanation of how much money and how often she donated money to the party was also vague and unconvincing. As indicated at paragraph 31 above, the Tribunal questioned her at length on this matter. The Tribunal found her responses to be non-spontaneous and evasive. Initially she simply said she gave a small amount of money as well as some clothes. When pressed she said she gave whenever she felt she could. She then said she gave many times and as she was [an Occupation 1] would give money when she was paid. She then said she gave between INR4,000 and INR5,000, and finally, after stating she gave whenever the party needed it, said she gave about once every two months (although she indicated she was paid monthly).
[The first named applicant]’s evidence in relation to the problems experienced at and following her wedding was similarly vague and unconvincing. Contrary to her written statement of 12 May 2016 in which she stated she experienced problems because she didn’t invite the SAD leaders to her wedding, at the hearing she said there was ‘some dispute’ between the parties and they thought she was involved so they started creating problems for her. The only problem she identified, however, was that when she and her husband sought to depart India in March 2014 they were delayed for several days as airport authorities were not satisfied that her husband held a valid visa for Australia (they were travelling on electronic visas). The applicant suggested that this was due to the involvement of SAD officials who were at the airport and told lies about her. As discussed with the applicant, however, the Tribunal considers that this would seem to have been an issue with immigration officials at the airport, and also notes that she did not mention this incident in her written statement, suggesting she did not see it as significant. The Tribunal considers that this claim is entirely speculative and [the first named applicant] has provided no detail or other information to indicate or suggest that SAD officials were responsible for the delay in her and her husband departing India, or explain why SAD officials might be working with authorities at [an] International Airport, which is not located in Punjab state.
[The first named applicant]’s evidence in relation to her claim to have tried to live in another part of India was also unconvincing. Initially she said she shifted to Ludhiana (a major city in Punjab located approximately 100 km and two hours’ drive from [Town 1]). When questioned regarding when she did this given she was studying and working for the three years before she came to Australia, she altered her account and said she didn’t shift, but stayed with a friend in Ludhiana during the school holidays. When questioned about her claim that SAD members used their political links to try to harm her and her family, she said her brother was threatened that he would be killed. Noting that the applicant had indicated earlier in the hearing that her brother continues to live with her parents in [Town 1] and helps her father on the farm, the Tribunal asked [the first named applicant] if anything else happened. The applicant provided no other examples of threats or harm but indicated that SAD officials want her and her husband to return so they can harm them.
Considering all the above cumulatively, the Tribunal concludes that the applicant did not provide support to the SAD party in the form of monetary donations and did not cease providing monetary donation to the party either before or after she came to Australia. The Tribunal finds therefore that she and her family members were not threatened, harassed or harmed by SAD officials, members and/or supporters. The Tribunal does not accept that [the first named applicant] sought to relocate to Ludhiana to avoid harassment from SAD officials, members and/or supporters. In reaching this conclusion the Tribunal has also given some weight to [the first named applicant]’s evidence that when she sought Ministerial Intervention in August 2015 she did not seek to raise with the minister any concerns that she might suffer harm from SAD officials, members and/or supporters if she had to return to India. In this regard the Tribunal does not accept [the first named applicant]’s explanation at the hearing that at the time she was not aware of how to do this or the importance of raising this issue. The Tribunal considers that if she had a genuine fear for her safety at this time she would have simply have raised this in her submission to the Minister.
While the Tribunal does not accept that [the first named applicant] or her family members were ever threatened, harassed or harmed by SAD officials, members or supporter, the Tribunal also considers that, in any event, the country information put to the applicant makes a compelling case that the power of SAD in Punjab state has been greatly diminished since March 2017 when they lost power in a landslide election result. As put to the applicant, the state and more recently the local government election results clearly indicate that many people in Punjab have lost faith in and turned against SAD. While the Tribunal accepts the applicant’s local village council may have re-elected a SAD representative as she claims, SAD clearly are no longer the ‘dominant political leaders in Punjab’ and as a primarily Sikh-based regional party the Tribunal does not accept that they have political links that enable them to target and harm opponents in Punjab let alone wherever they are throughout India, and with impunity. The Tribunal concludes that there is not a real chance that [the first named applicant] would suffer persecution involving serious harm from SAD officials, members and/or supporters should she return to India now or in the reasonably foreseeable future.
[The first named applicant] also raised concerns about the risk of harm to her infant son on the family’s return to India, commenting that it would be very difficult for them to survive in India given their son was born and brought up in Australia. As the Tribunal does not accept that [the first named applicant] and her family members have been threatened, harassed or harmed by SAD officials, members and/or supporters in the past and does not accept that there is a real chance that she would suffer persecution involving serious harm from SAD officials, members and/or supporters in the reasonably foreseeable future, and noting that her son is only [age] years old, the Tribunal finds that there is nothing to indicate or suggest that her having a young son who was born in and has spent the first [years] of his life in Australia increases the chances that she and her family members would be harmed by SAD officials, members and/or supporters or anyone else on return to India.
As the Tribunal does not accept there to be a real chance the applicants will be harmed by SAD officials, members and/or supporters or anyone else on return to India the Tribunal does not consider that the applicants would require the protection of the Indian authorities.
Conclusion – refugee ground
For the reasons set out above, the Tribunal has not accepted there is a real chance that the applicants will face persecution involving serious harm from SAD officials, members and/or supporters, or anyone else if they returned to India now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
While the applicants have not made specific claims in relation to the complementary protection criterion the Tribunal has also considered whether there is a real risk that the applicants will suffer significant harm, as a necessary and foreseeable consequence of their being removed from Australia to India.
In considering whether there is a real risk that the applicants will suffer significant harm in these circumstances, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[8]
[8] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Having regard to its findings of fact set out above, the Tribunal finds that there is not a real risk that the applicants would suffer significant harm as defined at s.36(2A)(a)-(e) of the Act. That is, the Tribunal does not accept that there is a real risk that either of the applicants will be arbitrarily deprived of their life; and/or will have the death penalty carried out on them; and/or will be subjected to torture; and/or will be subjected to cruel or inhuman treatment or punishment; and/or will be subjected to degrading treatment or punishment, from SAD officials, members and/or supporters, or anyone else, as a necessary and foreseeable consequence of the applicants being removed from Australia to India. Therefore the applicants do not satisfy the criterion set out in s.36(2)(aa) for a protection visa.
There is no suggestion that either of the applicants satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, neither of the applicants satisfies the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Paul Windsor
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2018] AATA 4645

21 November 2018

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Immigration

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