1615360 (Refugee)

1615360 (Refugee) [2018] AATA 283 (7 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1615360
COUNTRY OF REFERENCE:                  India
MEMBER:Christopher Smolicz
DATE:7 February 2018
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 February 2018 at 12:21pm
CATCHWORDS
Refugee – Protection visa – India – Religion – Rajput Sikh - Support for Ranjit Singh Dhadrianwale – Harm from ex-wife’s family - Little religious-based community violence in Punjab – Freedom of political and religious views – No Ill treatment of ordinary Sikhs – No previous harm – Divorced from wife – No further contact
LEGISLATION
Migration Act 1958, ss 5(1), 5H(1)(a), 5H(1)(b), 5J(1)-(6), 5K-LA, 36(2)(a), (aa), (b), or (c), 36(2A) and (2B), 499
Migration Regulations 1994, Schedule 2
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 and Border Protection [in] September 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of India, applied for the visa [in] June 2016.
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 – 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criteria or comes within Australia’s complementary protection obligations because:
·     of his Sikh religion and support for Ranjit Singh Dhadrianwale
·     of his imputed political opinion as a supporter of Ranjit Singh Dhadrianwale
·     he fears harm from his ex-wife’s family in India.
Background
The delegate’s decision, which the applicant provided to the Tribunal, details the following evidence about the applicant’s migration history.
[In] May 2009 the applicant arrived in Australia as a dependent on [Visa 1]. His wife was the substantive visa holder at the time. [In] June 2011 the applicant separated from his wife.
[In] September 2011 the applicant lodged an application for [Visa 2]. [In] February 2013 [Visa 2] was refused.
[In] February 2013 the applicant applied to the Migration Review Tribunal (MRT) seeking review of the Department’s decision. On 31 January 2014 the MRT affirmed the Department’s decision not to grant the applicant [Visa 2].
[In] February 2013 the applicant applied to the Federal Circuit Court (FCCA) for judicial review.
[In] March 2014 the applicant departed Australia and travelled to India. He returned to Australia [in] April 2014. [In] July 2014 the applicant departed Australia and travelled to India. He returned to Australia [in] August 2014. The applicant declared that he travelled to India to meet his family.
[In] August 2014 the applicant withdrew his FCCA judicial review application.
[In] September 2014 the applicant lodged an application for Ministerial intervention under s.351 of the Act. [In] March 2016 the applicant was advised that the Minister had not considered his application.
[In] June 2016 the applicant applied for the protection visa, the subject of the current application.
Summary of substantive claims
The applicant made the following claims in his protection visa application (form 866C).
The applicant claims he belongs to the Rajput Sikh religious group.
His family are strong followers of the religious guru Baba Dhadrianwale [Ranjit Singh Dhadrianwale].
The current Indian government is Hindu and supports the Shiv Sena political party. He claims a Shiv Sena leader was killed by a mob associated with a religious hate crime and guru Baba Dharianwale was blamed for the crime and his followers have recently been attacked by Shiv Sena activists. He fears he will be harmed or killed because his family are very prominent followers of the guru.
He fears Shiv Sena can make a statement by attacking his community at any time. Shiv Sena launched an attack on a community at Maharashtra and forced people to leave their jobs and move out of that state. Shiv Sena have allies in the current ruling government and the authorities will not protect him and he cannot relocate to another part of India.
The applicant declared that he has not experienced harm in India.
Tribunal hearing
The Tribunal questioned the applicant about his migration history. The applicant said that he travelled to Australia with his wife in May 2009. The marriage was arranged by his parents about one and half years before he travelled to Australia. His wife was from the Hindu religion and he is from the Sikh religion. The Tribunal asked the applicant if his marriage to a Hindu woman was an issue. The applicant said that mixed marriages are now more common in India. He did not claim there was any issue because he married a Hindu woman.
About two months after they arrived, his wife wanted a divorce and demanded that he sign legal documents. The applicant refused. He told his wife that he made financial sacrifices in order to finance the trip to Australia. He knew no one in Australia and did not want to divorce. His wife threatened him that if he did not sign the divorce documents then when he returned to India her brothers and father would cause him trouble and he would be killed.
His wife continued to harass him to sign the legal documents. She threatened to have him deported. He was very stressed at the time and this impacted on his vision and he required treatment at hospital. He travelled to India in March 2014 and July 2014 for treatment. His eyesight has now improved.
The applicant said that his visa was valid for about two and half years and his visa status was dependent on his relationship. He kept a low profile so that he would not come to the attention of the Department.
In about September 2011 he applied for temporary residence on [Visa 2]. He knew nothing about the visa but obtained advice that applying for the visa might give him time to work and remain in Australia. He has no qualifications and is illiterate and did not expect to be granted the visa.
The Tribunal questioned the applicant about the status of his relationship with his ex-wife. The applicant said that his wife was able to obtain a divorce without his consent. He has not seen his wife for many years and has had no contact with her at all since they separated. He has heard from friends that she now is a permanent resident and may also have married.
The applicant said that he is able to live in Australia with the assistance of a friend. He claims that he is not working. His parents in India are poor and old and unable to assist him. His [siblings] continue to live in India.
The Tribunal noted that the applicant had been in Australia since May 2009 and asked why he applied for the protection visa in June 2016. The applicant said that [in] May 2016 a Sikh religious leader (Ranjit Singh Dhadrianwale) was attacked and one of his supporters was killed. [1]
[1] The applicant initially stated that Ranjit Singh Dhadrianwale was attacked on 17 May 2017 but after the inconsistency was pointed out he referred to internet printouts and said the date was 16 May 2016.
The applicant said that the majority of the Indian population are Hindus and Sikhs comprise only 2 per cent of the population. He claims that life is dangerous for Sikhs in India. The applicant referred the Tribunal to historical clashes between the Sikhs and Hindus in 1984 when about 3,000 Sikhs were killed during riots [Operation Blue Star]. The applicant maintained that Shiv Sena (Hindu nationalist (Hindutva) political party) are very powerful and threaten Sikhs, burning posters of Sant Bhindrawale.
The Tribunal referred the applicant to country information and noted that his home area of Punjab is home to around three-quarters of India’s Sikh population. The Tribunal referred the applicant to his protection visa application and noted that he declared at question 91 that he had not previously experienced harm in India. The Tribunal noted that the applicant was not in India during the attacks on Ranjit Singh Dhadrianwale on 17 May 2016.
The Tribunal explained to the applicant that it must assess his claims of fear of persecution looking to the reasonably foreseeable future. The applicant said that he fears being harmed by his ex-wife’s brothers in India because he would not sign the divorce papers. The applicant said that his wife’s family live close to his family. The Tribunal asked the applicant if he could relocate to another part of India. The applicant said that he wants to be close to his family.
Findings
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal finds that the applicant is a citizen of India who travelled to Australia on a validly issued Indian passport as a dependant [Visa 1] holder. The Tribunal has assessed the applicant’s claims against India as the receiving country. The Tribunal has assessed the applicant’s claims against Punjab as his home area.
Sikh religion and imputed political opinion as a supporter of Ranjit Singh Dhadrianwale.
The Tribunal accepts that the applicant is from the Sikh religion and the applicant and his family are followers of Ranjit Singh Dhadrianwale.
The Department of Foreign Affairs and Trade (DFAT) advise that ‘although some sporadic violent incidents can occur, there is little religious-based community violence in Punjab. For example, in October 2015 some damaged pages of the Guru Granth Sahib (the Sikh holy text) were found near a Sikh temple (or Gurdwara). It is unclear who was responsible for damaging the text. Protests against the “desecration” of the text were subsequently held in a number of villages and cities across Faridkot District. Two protesters were reportedly killed in Behbal Kalan village when police opened fire to disperse the protesters. In addition to the two deaths, a further 82 people (including 12 police) were injured and several vehicles torched across Faridkot during the protests, which lasted several days. The police response, which included baton charges as well as the use of firearms, was seen by some in the Sikh community to be disproportionate. An official commission of inquiry into the incident has not yet reported its findings.’
DFAT assesses that ‘violent events involving religion are rare and are not representative of a generally peaceful environment in Punjab. DFAT assesses that people in Punjab face a low risk of violence on the basis of their religious beliefs. DFAT further assesses that, while people in Punjab often face minor levels of societal discrimination on the basis of their religion, this discrimination rarely escalates to significant levels, and rarely involves the targeting of people of particular religious groups. DFAT assesses that societal discrimination on the basis of religion typically takes the form of positive discrimination in favour of one’s own religious group. Furthermore, DFAT assesses that religion is often not the sole motivation for societal discrimination, which typically involves a complex mix of religious, linguistic, caste and class issues.’[2]
[2] DFAT Thematic Report Indian State of Punjab, 7 December 2016, at [3.5]
The Tribunal has had regard to media reports which confirm that Ranjit Singh Dhadrianwale is a Sikh preacher who survived an assassination attack in May 2016. It was reported that his fellow preacher, Bhai Bhupinder Singh Khalas, was killed by the assassins. It is unclear who was responsible for the attack. Some reports suggest that it may have been a rival Sikh group. It is reported that Ranjit Singh Dhadrianwale was outspoken in relation to the protests over the desecration of the Guru Granth Sahib in 2015.[3] The Tribunal was unable to locate country information to confirm that his supporters are being specifically targeted by Shiv Sena.
[3] CX6A26A6E8629: ‘Dhadrianwale - the preacher who wants to be “brother’’’, The Indian Express, 22 May 2016, See also ‘Dhadrianwale announces next course of Action as Thousands attend Bhai Bhupinder Singh’s Bhog Samagam’, Sikh24, 27 May 2016, >
As discussed with the applicant at the hearing, country information confirms that India is the home to 19 million Sikhs which constitutes about 1.9 per cent of the national population. In 2012, seventy-five per cent of India’s Sikh population resided in Punjab (the applicant’s home area), where they constituted 59.2 per cent of the population.[4]
[4] US Department of State, International Religious Freedom Report 2011 – India, 30 July 2012, Section I; Immigration and Refugee Board of Canada, India: Treatment of Sikhs in Punjab (2007-February 2012), IND103968.E, 2 May 2012, <
DFAT advise that religious diversity is broadly accepted in Punjab. Interfaith marriage does occur, particularly between Sikhs and Hindus, and typically happens without major protest from either group.
While acknowledging historical clashes between Hindus and Sikhs, the Tribunal noted that DFAT currently assesses that the Sikhs in Punjab have no higher risk of religious-based official or societal discrimination or violence than that faced by people from other religious groups.[5]
[5] DFAT Thematic Report Indian State of Punjab, 7 December 2016, at [2.8] [3.4] [3.9–3.10]
The Tribunal notes that s.15 of India’s Constitution prohibits discrimination against any citizen on the grounds of religion. Section 25 guarantees the right to freely profess, practise and propagate religion, and s.26 guarantees every religious denomination or any sect the freedom to manage its own religious affairs. According to the US State Department’s 2013 report on international religious freedom in India, the Central Government ‘generally respected religious freedom’. However, the US Commission on International Religious Freedom’s (USCIRF) 2014 and 2015 reports noted that India had struggled to protect minority communities or provide justice when crimes occurred, due to a lack of political will, corruption and religious bias by government officials.[6]
[6] DFAT Country Information Report India, 15 July 2015, at [3.5]
The Department’s Issues Paper on the treatment of Sikhs in India reported that no independent human rights organisation reports were located that suggest that ordinary Sikhs in India are ill-treated on the basis of their religion, identity, appearance, etc. Neither the US Department of State International Religious Freedom Report 2012 – India or the United States Commission on International Religious Freedom report discrimination or ill-treatment of ordinary Sikhs.[7]
[7] US Department of State, International Religious Freedom Report 2012 – India, 13 May 2013;
The Tribunal has also had regard to the current International Religious Freedom Report which provides the following information on violations against Sikhs in India:
Hindu nationalists often harass Sikhs and pressure them to reject religious practices and beliefs that are distinct to Sikhism, such as wearing Sikh dress and unshorn hair and carrying mandatory religious items, including the kirpan, which is a right protected by the Indian constitution. Article 25 of the Indian constitution deems Sikhs to be Hindus. This creates an environment in which Hindu nationalists view Sikhs as having rejected Hinduism and as being enemies of India because some Sikhs support the Khalistan political movement, which seeks to create a new state in India for Sikhs and full legal recognition of Sikhism as an independent faith.[8]
[8] United States Commission on International Religious Freedom, (USCIRF) AnnualReport.pdf, 2017,
DFAT comments that people in Punjab can freely express their political views without risk of harassment from authorities or other members of the Punjab community. While peaceful protests are common and typically proceed without incident, DFAT assesses that large protests involving unrest, violence and damaging of property would face a risk of a strong police response. However, such violent protests and police responses are rare in Punjab.[9]
[9] DFAT Thematic Report India State of Punjab, 7 December 2016, at [3.20]
As detailed above the Tribunal accepts that there was an assassination attempt on Ranjit Singh Dhadrianwale in May 2017 and that one of his fellow preachers was killed in the attack. The Tribunal notes that Ranjit Singh Dhadrianwale is a high profile and outspoken preacher within the Sikh community. The Tribunal has had regard to country information and does not accept ordinary Sikhs who follow Ranjit Singh Dhadrianwale are being targeted and face persecution in India because of their religious beliefs or their imputed political opinion.

The Tribunal notes that the applicant has not previously experienced any harm in India due to his Sikh religion or imputed political opinion. He is not a Sikh political activist and has not taken part in demonstrations. He has voluntarily retuned to India on two occasions in 2014 and did not report any persecution based on his religion or his imputed political opinion. His family continue to live in Punjab and there is no evidence before the Tribunal that they have faced persecution. The Tribunal finds that the applicant is able to practise his Sikh religion and freely follow Ranjit Singh Dhadrianwale who continues to have a large following among the Sikh community in Punjab.
Having regard to the country information and the applicant’s profile, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm because of his Sikh religion or his imputed political opinion if he returns to India in the foreseeable future. The Tribunal finds that the applicant’s fear of persecution due to his religion and imputed political opinion is not well founded.
Fear of ex-wife’s family in India
The Tribunal accepts the applicant’s claims that soon after he travelled to Australia he separated from his wife in about June 2011. The Tribunal accepts that the separation caused the applicant stress and that he did not want to consent to the divorce and refused to sign legal documents.
The Tribunal accepts that, at this time of the separation, the applicant’s ex-wife may have pressured him to sign the legal documents by making threats that she would have him deported and that her family would harm him if he returned to India. The Tribunal finds that these threats were made by the ex-wife in the context of bitter divorce negotiations where the applicant refused to sign legal documents. The Tribunal finds that the persecution feared by the applicant from his-ex-wife’s family is not for any of the reasons in s.5J(1)(a) of the Act.
The Tribunal notes that there is no evidence that the ex-wife’s brothers and/or father personally threatened the applicant or had any contact with him. The Tribunal also notes that the applicant made no claims in his written protection visa application that he feared harm from his ex-wife’s brother or father in India. These claims were raised for the first time at the Tribunal hearing. The Tribunal finds that the delay in raising the claims is relevant in assessing the applicant’s subjective fear of harm from his wife’s family in India.
The Tribunal finds that since about June 2011 the applicant has separated from his wife and they have lost all contact with each other. The Tribunal finds that since the ex-wife obtained the divorce she has moved on with her life and there is no evidence to suggest that she has any further interest in contacting the applicant. Specifically, the Tribunal finds there is no evidence the threats have continued after the applicant’s ex-wife was granted the divorce.
Having regard to the applicant’s evidence the Tribunal also finds that it is mere speculation to say that he will face significant harm from the ex-wife’s family in India because they live in the same village. In making this finding the Tribunal notes that there is no evidence that the ex-wife’s father or brother have had any contact with the applicant. The Tribunal also notes that the applicant has voluntarily returned to India on two occasions after he separated from his wife and did not claim that he was threatened in any way by the ex-wife’s family despite his claim that his ex-wife’s family live close to his family home in India. The Tribunal also notes that the applicant declared in his application that he speaks to his own family by phone weekly and there is no evidence that his family in India have been threatened by the ex-wife’s family.
The Tribunal has also had regard to DFAT advice that high levels of corruption, poor police investigative capabilities, an overburdened judicial system and a culture of impunity have contributed to occurrences of extra-judicial killings or so-called ‘fake encounters’ in Punjab. These incidents typically occur when authorities (predominantly police) kill a suspect who is unarmed or already in custody, and then claim they acted in self-defence. However, DFAT assesses that Punjabis, including Sikhs, face a low risk of being involved in extra-judicial killings by the security forces.[10]The Tribunal finds that authorities would not withhold protection to the applicant for any of the grounds mentioned in 5J(1)(a) of the Act.
[10] DFAT Thematic Report – Indian State of Punjab [4.1] and [4.3]
Looking to the reasonably foreseeable future, the Tribunal is not satisfied that there is a real chance that if the applicant were to return to India he would face serious harm from his ex-wife’s family or because of his religion or his imputed political opinion. The Tribunal finds that the applicant’s fear of persecution is not well founded.
The Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances. In this regard, the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk he will suffer significant harm from his wife’s family in India.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
‘The threshold for the ‘real risk’ element in the complementary protection criterion in s.36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s.36(2)(a).[11]
[11] MIAC v SZQRB (2013) 210 FCR 505 (special leave to appeal from this judgment was refused: MIAC v SZQRB [2013] HCATrans 323, 13 December 2013).
Having considered the evidence detailed above the Tribunal also finds that there is no real risk the applicant would face any harm from his ex-wife’s family or because he is a Sikh or because of his imputed political opinion if he were to return to India.
The Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk he will suffer significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant 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, the applicant does not satisfy the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christopher Smolicz
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.
…

DFAT Thematic Report Indian State of Punjab, 7 December 2016, at [3.6]

United States Commission on International Religious Freedom (USCIRF), USCIRF Annual Report – The Commission’s Watch List: India, 20 March 2012

[2018] AATA 283

7 February 2018

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction