1617104 (Refugee)

1617104 (Refugee) [2019] AATA 321 (4 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1617104
COUNTRY OF REFERENCE:                  India
MEMBER:Shane Lucas
DATE:4 February 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 04 February 2019 at 2:58pm

CATCHWORDS
REFUGEE – protection visa – India – political opinion – Aam Aadmi Party – Shiromani Akhali Dal – property dispute – injured by sword – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 10 October 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is an Indian national born on [date]. He applied for the visa on 26 July 2016.
The delegate refused to grant the visa on the basis that she was not satisfied that the applicant would face a real chance of persecution should he return to his receiving country now or in the foreseeable future for one or more of the reasons mentioned in s.5J(1)(a) of the Act. Accordingly, the delegate determined that the applicant is not a refugee as defined by section 5H(10) of the Act or a person in respect of whom Australia has protection obligations under sections 36(2)(a) or 36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 9 January 2019 to give evidence and present arguments.
The applicant was not represented in relation to the review by a registered migration agent.
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 them self 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; if there is a real chance they would be persecuted for one or more of those reasons; and if 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 (DFAT) 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 review is whether the applicant has a well-founded fear of being persecuted in India for one or more of the five reasons set out in s.5J; and, if not, 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 that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
The applicant provided a copy of his Indian passport to the Department of Home Affairs (Home Affairs) and this document was also sighted by the Tribunal. On the basis of this information and without any information to the contrary, the Tribunal accepts that the applicant is who he claims to be, and that he is a national of India, which is also his receiving country.
Claims
In his application for a protection visa on 26 July 2016, the applicant provided the following written statement in support of his claims:
“I was born [in] Punjab.
I was a [Occupation 1] in India and always interested in tourism and then I came to Australia on tourist visa.
I came to Australia in July 2016.
My family supported me financially as we have good land and good sources in income in India.
When I came to Australia, my wife told me that my uncle tried to sell our land to someone and he already sold out some trees that belong to us.
According to Indian law, only the owner of the property can sell it and no other person have rights to sell without the consent of owner or he should have the power of attorney to take any action at particular property.
We were very angry with his behaviour and went to police station to file a case against him in Indian police.
His son is in Indian police and no one lodged a complaint in register and send us back to our house to resolve matter verbally.
He have links with ruling party of Punjab i.e. SAD and as I am supported of AAP, they already have intention to harm me and they always threaten me to put my vote to SAD party so that they can rule Punjab and continue corruption and drug supply in Punjab.
I have threat to my life from my uncle and his criminal friends. I have no faith in Police of my country as it’s corrupt and they haven’t even arrested my uncle.
I believe living in Australia is safe for my life and my family’s life living back in India. After living a painful and miserable life for years, now I want to give a new start to my life. A better life which is free from any fears and pains.
So I request you please grant me the protection visa at the earliest.”
The Tribunal engaged with the applicant’s claims at the hearing on 9 January 2019 at which the applicant gave oral evidence, expanding on and clarifying his written claims.
In oral evidence, the applicant confirmed that he first arrived in Australia [in] July 2016 on a [temporary] visa due to expire [in] August 2016. On 26 July 2016, the applicant lodged an application for a protection visa and was granted an associated Bridging Visa A (Class WA) (Subclass 010). Home Affairs refused the application on 10 October 2016 and the applicant subsequently lodged an application with the Tribunal for review of that decision on 15 October 2016.
In response to questions from the Tribunal, the applicant confirmed that he subsequently departed Australia [in] December 2017 on a Bridging Visa B (Class WB) (Subclass 020) for the purposes of a holiday in [Country 1] with his wife and two sons, aged [age] years and [age] years respectively. The applicant stated that he remained in [Country 1] for one month, after which he returned to Australia [in] January 2018, and his wife and children returned to their home in Ludhiana in Punjab state, India. In response to further questions from the Tribunal, the applicant stated that his parents have resided in Australia since 2010, and that his [brother] is also resident in this country.
In oral evidence, the applicant clarified that his fear of returning to India is related principally to his concern that his uncle and/or associates of his uncle will harm him due to a property dispute. The applicant also affirmed that his uncle has previously threatened him because of his support for the Aam Aadmi Party (AAP). The applicant claims his uncle has links with the Shiromani Akhali Dal (SAD) party, which held power in the Punjab in coalition with the Bharatiya Janata Party (BJP) prior to elections in February 2017. Subsequent to that election, the Indian National Congress (Congress) formed government in the Punjab.
The applicant provided an account of the alleged property dispute with his uncle. The applicant claims that in early 2015 his uncle sought to forcibly take over some [land] in Ludhiana belonging to the applicant by falsely registering his personal ownership of the acreage, and by constructing a wall or fence around it. The applicant stated that in January 2015, he was advised of this by a family friend and that he went to personally inspect the alleged wall. The applicant claimed that he was confronted at the site by his uncle and associates of his uncle, whom the applicant characterised as persons of a criminal nature. The applicant claims that he was abused and assaulted by these persons on this occasion, including being slashed on his [body] by a sword wielded by an unknown assailant. At the hearing on 9 January 2019, the applicant [showed] the Tribunal a scar on his [body] which he claimed to have received as a result of the alleged incident.
In oral evidence, the applicant stated that he sought medical attention after the alleged incident and that he also reported the assault to the police. The applicant stated that he showed the police where he had been wounded and filed a report. The applicant stated that the police dismissed his injuries as “minor” and took no action. The applicant stated that he also sought redress from an un-named local Member of Parliament, but that this gentleman also took no action. In response to questions from the Tribunal, the applicant stated that he believed the MP to be a political associate of his uncle and hence, that the gentleman was disinclined to become involved in the matter. The applicant stated that he moved from his home in Ludhiana after this incident, taking up residence with his wife’s family in the same district. The applicant stated that no other incidents occurred after this assault, but that he lived in fear from this time until his departure for Australia in July 2016.
In response to questions from the Tribunal, the applicant stated that his uncle has many powerful friends in the SAD and Congress parties, and that his cousin (his uncle’s son) is a police officer in Ludhiana. For these reasons, the applicant stated that he believed no further action was taken by the authorities in response to his report of the alleged assault in January 2015. The applicant stated that he had taken no further action with regard to the property dispute due to his fear of reprisal by his uncle and his uncle’s associates. The applicant made no further claims expanding on or clarifying his written statements that he had been pressured by his uncle to support SAD or threatened on account of his support of the AAP.
At the conclusion of the hearing, the Tribunal afforded the applicant 21 days (i.e. until 30 January 2019) to provide any medical or other documentation regarding the circumstances of the injury to his [body] and/or any other submissions in support of his claims and/or documentation that might attest to his efforts to report the alleged assault to the police. On 25 January 2019, the applicant provided the Tribunal with three separate prescriptions from [a named] Clinic in Ludhiana. These documents purport to have been issued by the clinic on [date] January 2015, [date] January 2015 and [date] January 2015 respectively, and state:
“c/o large cut [on my body] / no bony injury and other cut is on opposite side of this cut. Stitches applied… (medication details follow)” ([Dr A],… Emergency Medical Officer, [named hospital], Ludhiana, [Jan] 2015)
“… c/o trauma [on the body]… (medication details follow)” ([Dr A],… Emergency Medical Officer, [named hospital], Ludhiana, [Jan] 2015)
“… c/o trauma [on the body]. Now – wound status OK. Stitches removed. c/o general weakness and anaemia… (medication details follow)” ([Dr A],… Emergency Medical Officer, [named hospital], Ludhiana, [Jan] 2015)
No further written submissions or comments were provided by the applicant. This documentation has been considered in the making of this decision.
Credibility
In assessing the applicants’ credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear; that the fear is “well-founded”; or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-170.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, 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 established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (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).
Findings
In considering the claims made by the applicant, the Tribunal finds that he took timely steps to lodge an application for a protection visa on 26 July 2016, prior to the expiry of his substantive visa [in] August 2016. At the time of application, the applicant provided Home Affairs with a signed written statement (see above at [14]) in which he detailed his claims, including the following:
“I was a [Occupation 1] in India and always interested in tourism and then I came to Australia on tourist visa. I came to Australia in July 2016… when I came to Australia, my wife told me that my uncle tried to sell our land to someone and he already sold out some trees that belong to us.”
The Tribunal notes that at this time, the applicant made no reference in his written statement to the circumstances that allegedly precipitated the property dispute with his uncle (i.e. the uncle’s seizure of the acreage in Ludhiana and the building of a wall around it) or to the alleged incident [in] January 2015 in which the applicant claims to have been assaulted by his uncle and/or persons associated with his uncle, and injured with a sword, due to the alleged property dispute.
The Tribunal notes also that the applicant claimed in his written statement that his wife contacted him after his arrival in Australia in July 2016 to tell him of property-related issues with his uncle. Further, the Tribunal notes that the applicant states that he came to Australia in July 2016 as a tourist, and that he had always been interested in tourism. It follows that the applicant made no claim to have left India – at the time of his departure - on account of a fear of persecution and/or harm due to the alleged property dispute and/or the incident of January 2015 described above; rather, his claimed fear comes subsequent to the alleged communication from his wife after his arrival in Australia.
In response to questions from the Tribunal, the applicant provided no credible account of, or rationale for, the inconsistencies between his written and oral evidence; or for the significant omission of the January 2015 incident and the alleged circumstances underpinning the property dispute from his initial written statement of claims. The applicant also provided no credible account or rationale for his failure to provide any evidence regarding the alleged assault and his resultant injuries in the subsequent two years in which his application has been before the Tribunal for review.
The Tribunal advised the applicant at hearing that it did not find his account of the alleged incident in January 2015 or his rationale for not having previously advised Home Affairs or the Tribunal of the alleged incident to be credible. Accordingly, the Tribunal provided the applicant with an opportunity to provide evidence and/or further submissions substantiating his claims regarding the alleged incident (see above at [22]). In response, the applicant provided the documentation detailed above, but provided no further submissions or evidence to support his claim that the medical documentation pertains to injuries received during the course of the alleged incident or that supported or detailed his claims in any way.
The Tribunal reasons that the applicant’s account of the alleged incident in January 2015, and his failure to mention such a significant aspect of the incident (i.e. the alleged assault on the applicant with a sword, leading to the injuries detailed in the medical documentation provided) in his written statement of July 2016, seriously undermine the credibility of the applicant’s claims to fear persecution on account of the alleged property dispute. Moreover, the Tribunal reasons that the applicant’s written statement of 26 July 2016 - wherein he refers to his wife contacting him after his arrival in Australia [in] July 2016 to advise him of the property dispute, but makes no mention of the actions undertaken by his uncle in early 2015 that allegedly precipitated the dispute - seriously undermines the credibility of the applicant’s account of the alleged dispute itself. The Tribunal reasons also that the applicant’s oral evidence at hearing (i.e. that no further incidents occurred and that his family has continued to live safely in their home town of Ludhiana) seriously undermines the credibility of the applicant’s claimed fear of persecution in India on account of the alleged dispute. Further, the Tribunal reasons that the applicant’s initial statement that he came to Australia in July 2016 as a tourist with an interest in tourism – a statement that makes no reference to his fear of persecution on account of the alleged incident and/or property dispute - suggests that the applicant did not have an extant fear of persecution in India at that time, given his subsequent claim that the incident occurred some 18 months previously.

In the view of the Tribunal, these various factors compound to suggest that the written and oral evidence provided by the applicant is not credible, and has been concocted in an effort to support his application for a protection visa. It follows that the applicant’s motivation in lodging an application for a protection visa in July 2016 was to achieve a migration outcome in Australia, and that his application was not driven by an intention or requirement to seek protection from persecution in India.
In considering the claims put forward by the applicant, the Tribunal finds that he has not provided a credible account of the alleged property dispute with his uncle or the alleged incident in January 2015 in which he claims to have been assaulted by his uncle and other persons, and to have received injuries due to being slashed with a sword during the course of the incident. The Tribunal notes the medical documentation provided by the applicant regarding the injuries he received at the time of the alleged incident; however, the Tribunal notes that this documentation only describes the injuries received and the treatment provided. The documentation provides no analysis of the likely cause of the injury nor does it reflect any statements made by the applicant at the time of presentation to the clinic detailing the cause or circumstances of his injuries. Moreover, the applicant did not take up the opportunity provided by the Tribunal to make further written submissions regarding the alleged incident or provide any other evidence (i.e. concerning his claimed efforts to report the incident to police). On the basis of the applicant’s oral and written evidence, the Tribunal therefore gives the applicant’s claims to fear harm on the basis of a property dispute with his uncle, as exemplified by the alleged assault upon him in January 2015, little weight in determining whether he is likely to face harm should he return to India.
In considering the claims put forward by the applicant, the Tribunal notes also that in his written statement of July 2016, the applicant claimed that his uncle has previously threatened him because of his support for the AAP, and that his uncle has links with the SAD party, which held power in the Punjab prior to elections in that state in February 2017. In oral evidence, the applicant affirmed his uncle’s political associations and his own political opinions, but made no claim to have been threatened or harmed on account of the alleged difference of political opinion between himself and his uncle. The applicant has provided no evidence to the Tribunal that he has ever been threatened with harm or experienced harm in his home country on account of his political opinion. On the basis of the evidence before it, the Tribunal therefore gives the applicant’s claims to fear harm on the basis of the alleged difference of political opinion between himself and his uncle little weight in determining whether he is likely to face harm should he return to India.
On the oral and documentary evidence before it, the Tribunal therefore finds that the applicant would not face harm should he return to India. The Tribunal finds no credible evidence indicating any extant or ongoing adverse interest in the applicant demonstrated by any persons for any reason.
Does the applicant have a well-founded fear of persecution if he returns to India?
In oral evidence and in his written claims, the applicant stated that he fears he will be harmed if he returns to his home country on account of a property dispute with his uncle, a fear in part based on an alleged incident in January 2015 in which the applicant was allegedly assaulted by his uncle and/or other persons, and injured by a sword. On consideration of the evidence however, the Tribunal finds that the applicant has provided no credible evidence to support his claims regarding the alleged property dispute or that the alleged incident ever occurred. The applicant has also provided no credible evidence that he has ever been threatened or harmed on account of the alleged difference of political opinion between himself and his uncle. It follows that that applicant has provided no credible evidence supporting his alleged fear of harm and/or persecution in his home country.
On the basis of the evidence, the Tribunal therefore finds that there is no real chance that the applicant will be harmed by any persons for any reason should he return to India. On consideration of the above findings, the Tribunal finds that there is no real chance that the applicant will suffer serious harm amounting to persecution now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution should he return to India. The Tribunal therefore finds that the applicant is not a refugee.
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).
Are there substantial grounds to believe that the applicant will suffer significant harm if he is returned to India?
In MIAC v SZQRB (2013) 210 FCR 505, the Full Federal Court held that a ‘real risk’ test imposes the same test as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. This applies equally to s.5J of the Act.
As detailed above, the Tribunal has found the applicant’s claims regarding the alleged property dispute with his uncle and the alleged incident in January 2015 to not be credible or to be supported by any credible documentation or other credible evidence. The Tribunal therefore finds that there is no real chance that the applicant will be harmed by any persons on account of the alleged property dispute with his uncle or for any other reason now or in the reasonably foreseeable future. The Tribunal has also found no credible evidence that the applicant has ever been threatened or harmed on account of the alleged difference of political opinion between himself and his uncle. The Tribunal therefore finds that there is no real chance that the applicant will be harmed by any persons on account of his political opinion or for any other reason now or in the reasonably foreseeable future.
It follows that the Tribunal does not accept that there is a real risk the applicant will suffer significant harm from any person for any reason or for any other reason evident on the claims or material as a necessary and foreseeable consequence of him being removed from Australia to India. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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).
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion for a protection visa set out in s.36(2)(a) or (aa).
There is no suggestion that the applicant satisfies s.36(2)(b) or (c) 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. It follows that the applicant cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Shane Lucas
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.
…

[2019] AATA 321

4 February 2019

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Appeal