1621187 (Refugee)

1621187 (Refugee) [2020] AATA 295 (12 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1621187
COUNTRY OF REFERENCE:                   India
MEMBER:Hugh Sanderson
DATE:12 February 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 12 February 2020 at 1:15pm
CATCHWORDS
REFUGEE – protection visa – India – fear of harm from former wife’s politically influential parents – credibility – vague and inconsistent evidence – previous applications for other visas, including application for ministerial intervention and Federal Circuit Court appeal, with no claim of fear of harm – no documentary evidence to support any part of claim – former wife’s remarriage and permanent residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 242AA
Migration Regulations 1994 (Cth), 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 on 28 November 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 on 11 September 2015. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant faced any threat or harm if he returned to India.
Background
The applicant is a citizen of India and is currently [age] years old. He has provided a copy of his Indian passport to the Department. His parents and a [sibling] continue to live in India.
The applicant first entered Australia [in] October 2008 as a member of the family unit of his wife, [Ms A], who had been granted a visa to be able to study in Australia. Before his Student visa expired [in] March 2013, the applicant applied for a [Temporary 1] visa. That application was refused by the Department and that decision was affirmed by the Tribunal (differently constituted) on review [in] July 2014. The applicant applied for Ministerial Intervention, which was not considered. The applicant appealed against the decision of the Tribunal to affirm the refusal of his [Temporary 1] visa. This appeal was dismissed by the Federal Circuit Court [in] August 2015. The applicant then applied [in] September 2015 for a [Temporary 2] visa. That application was found to be invalid [later in] September 2015. The applicant then applied for the current Protection visa.
It was claimed by the applicant that after arriving in Australia his marriage to Ms [A] ended and they were divorced. The applicant claimed that Ms [A] blamed him for torturing her and her parents became angry with him.
The applicant claimed Ms [A]’s parents were politically very influential and had links with underground criminals. He claimed that her parents had threatened to “fix” him and have threatened his family in India saying they will demolish him and his family. He claimed his family was living in terror and they advised him to stay away from India. He claimed that Ms [A]’s parents were so powerful they would be able to instruct authorities not to protect him and could kill him as soon as he came out of an airport and they could find him in any part of India.
The applicant was invited by the Department to attend an interview to discuss his claims. The applicant failed to attend that interview.
The delegate who considered the application noted the following issues:
·No claim had been made that the applicant had a well-founded fear of persecution due to his race, religion, nationality, membership of a particular social group or political opinion;
·India’s police and judicial system, despite some problems, is reasonably effective and impartial;
·If required, the applicant could seek the protection of the police from any threats of harm against him or his family; and
·There is little information that would indicate the applicant is subject to any plausible threats and if the applicant returned to India there is no real risk he would suffer significant harm.
Accordingly, the delegate was not satisfied the applicant had a well-founded fear of persecution as required by s.36(2)(a) or that there were substantial grounds for believing that as a necessary and foreseeable consequence of him being returned to India there was a real risk that he would suffer significant harm as required by s.36(2)(aa). Accordingly, the delegate refused the application.
Information to the Tribunal
The applicant appeared before the Tribunal on 5 February 2020 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was represented by his migration agent who did not attend attended the hearing.
The Tribunal commenced the hearing by explaining to the applicant the process under s.424AA of the Act. The Tribunal explained to the applicant it would be putting to him information which would be the reason, or a part of the reason, for affirming the decision under review. It would explain what this information was, why it was relevant and then invite the applicant to comment on or respond to the information. If the applicant required more time to comment on or respond to the information he could request an adjournment.
The applicant said that he had been living in [City] with friends for about one year. He said that he had not advised the Tribunal or the Department of his current address.
The Tribunal asked the applicant about his relationship with Ms [A]. He said that he could not remember when they were married, saying that it was either in 2007 or 2008. He said that he could not remember when they stopped living together. He said that it was about two or two and a half years after they arrived in Australia. He said that he had a bad memory, which is why he could not remember. He could not remember when the threats had been made by her family against him or when they stopped. He said that after he was divorced he stopped thinking about it.
The Tribunal attempted to obtain from the applicant details of his relationship with Ms [A]. The applicant was extremely vague and evasive when answering questions about their claimed relationship. The Tribunal noted the applicant stated that he was living in [Suburb 1] near Newcastle from June 2011. The applicant confirmed that he had ceased living with Ms [A] by that time. He said that they were divorced a year after they stopped living together.
The Tribunal asked the applicant to provide details of the claimed threats that had been made. The applicant said that her father had said “You have left our daughter so we will kill you”. The applicant said that when he and Ms [A] had arguments when they were living together her family would call him and make these threats. He said that when they were getting divorced they also called him and made the threats. He said that as her father had a high position he would be able to have the applicant imprisoned. The Tribunal asked the applicant the name of Ms [A]’s father. He said that he was not sure. He said that he was a Sarpanch, which was a person of authority. He said that he did not know his name but only knew her brother’s name.
The Tribunal referred to the process under s.424AA of the Act referred to above. The Tribunal referred to the details in Ms [A]’s Student visa application, which identified her father as [Mr B]. This was relevant as the applicant had indicated he did not know the name of Ms [A]’s father and it was not plausible that if he was alleging her father was threatening to kill him and was politically influential and had links to the criminal underground that he would not at least know his name. This undermined the credibility of the claims being made by the applicant and the plausibility of his claims.
The applicant responded by saying that he has no one there in India. He said that if he needed to produce a First Information Report (FIR) he had no one there to get things for him. The Tribunal noted that the issue was that he did not even know the name of the person he was alleging had significant political influence and was threatening to kill him. The applicant said that he forgets things.
The Tribunal again attempted to obtain information from the applicant as to when the alleged threats from Ms [A]’s family started and how long they had continued. The applicant said that he and Ms [A] had arguments when they were living together in [Suburb 2] and she would say that she would go to the police and he felt threatened when she said this. The Tribunal noted that this did not indicate that he faced any threat in India. The applicant said that her brother, [Mr C], would call from India and make threats against him. The applicant said that he would call his friends and ask what’s going on and they would tell him that Ms [A]’s family were making threats against him.
The applicant said Ms [A]‘s family had made a FIR to the police in the Punjab about him separating from Ms [A]. He said that he had no documents to prove this. The Tribunal indicated that seemed implausible that Ms [A]’s family would make a report to the police about their daughter separating from her husband in Australia. The applicant said that it was because her father was powerful they were able to do this.
The applicant said that his friends in India had made an FIR about the threats being made by Ms [A]’s family, but the police had refused to take any notice of the allegations because Ms [A]’s father has political connections.
The applicant said that he had not had any contact with Ms [A] since the divorce. He claimed the threats are still being made because he calls his friends in India and they say that Ms [A]’s family are still making the threats, but he was not able to provide any details of these threats, including when they were made. He said the threats are still being made now because when a person gets divorced you do not want to spare that person.
The applicant said that Ms [A]’s father was politically connected. He could not provide any details of the political connection, simply saying that he had links to ministers. When asked what evidence he had to show these connections, he did not respond.
The applicant said that he does not talk to his family in India due to the separation. He said that they were on the side of Ms [A]’s family. The Tribunal noted the applicant had previously claimed that his family were living in terror. He said that he does not speak to them and they do not speak to him because of what had happened.
The Tribunal noted that he was claiming that from 2011 to 2012 he was subject to threats being made by Ms [A]’s family that they would kill him and that for this reason he could not return to India. The Tribunal noted that his application for a Protection visa was not made until 2015 and this delay would indicate that the claims being made by the applicant were not plausible. The applicant said that he initially thought he would be going back to India, but when his friends were told this, things got worse. He said that this was in about 2012. He said that he had a current visa and thought that when he got the money he would apply for a Protection visa. He said that because he had a visa he did not have to fear about going back to India.
The Tribunal referred to the process under s.424AA of the Act. The Tribunal referred to the request for Ministerial Intervention made on behalf of the applicant by his agent [in] July 2014. This was relevant as at that time the applicant had been refused a visa and the claims made by the applicant, through his agent, at that time did not indicate that he had any fear of returning to India for any reason. This was relevant as it indicated that the claims being made by the applicant were not plausible and indicated there was no real risk that the applicant would suffer significant harm in India.
The applicant responded by saying that because he did not have any proof he could not say anything.
The Tribunal referred to the immigration and movement records of Ms [A] and her current husband. They showed that Ms [A] had returned to India in November 2016 with her current husband and had subsequently been granted a [Temporary 3] visa to live in Australia, sponsored by her husband. Her husband had travelled to India over the period Ms [A] was waiting for the grant of the visa and had also returned to India to again return to Australia with Ms [A] in September 2017. Ms [A] had subsequently been granted the right to reside permanently in Australia.
This information was relevant as it indicated that there would be no reason for Ms [A]’s family to have any reason to harm the applicant as Ms [A] had remarried and had been granted the right to reside permanently in Australia. Further, Ms [A]’s current husband had also travelled to India and spent time with Ms [A] in India, indicating her family were accepting of the relationship. This again indicated there was no reason why Ms [A]’s family would be making any threats against the applicant.
The applicant said that he did not have a comment because he did not have any proof.
The applicant said that he spoke Punjabi, Hindi and some English. The Tribunal asked the applicant why he would not be able to relocate to New Delhi or some other large city in India. He said that he could not return because he does not know anyone in those places. He said that if he returned to India, Ms [A]’s family would find out and they would kill him.
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 themselves 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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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
On the basis of the applicant’s identity documents, including his passport and evidence provided at the hearing before the Tribunal, the Tribunal accepts that the applicant is a national of India. Therefore, for the purposes of s.36(2)(a) of the Act and the meaning of refugee in s.5H of the Act, the Tribunal accepts that India is the country of nationality. For the purposes of s.36(2)(aa) of the Act, the Tribunal accepts that India is the receiving country.
The basis of the application is that the applicant claims that there is a real risk that he will suffer significant harm if he returns to India from his former wife’s family. He claims that when his relationship with his former wife deteriorated in 2011, his wife complained about him to her family and they would call him and threatened to kill him. They continued to directly threaten him until his wife divorced him in 2012. Despite having no contact with his wife or her family since then, he claims that his wife’s family in India have told his friends there that they will kill him if he returns to India but he had no evidence to support this claim.
For the reasons set out below, the Tribunal does not accept any of the claims made by the applicant. The Tribunal does not accept that if the applicant were to return to India he would have a well-founded fear of persecution or that there would be a real risk that he would suffer significant harm in India or anywhere else.
The applicant’s evidence was particularly vague and uncertain. He was not able to provide dates as to when events occurred, such as the threats allegedly made by Ms [A]’s family, details of the threats being made apart from saying that they will kill him, details of when reports had allegedly been made to the police in India or details of when his relationship with Ms [A] began or ended. He claimed that he could not remember the name of Ms [A]’s father, even though he claimed that this person was politically very influential and has threatened to kill him.
The applicant claimed that he just had a bad memory. There is no medical information to support this claim. He claimed that after he divorced Ms [A] he stopped thinking about the threats, which was why he could not now remember what had happened.
The Tribunal does not accept that if the applicant had been the subject of genuine threats made against his life, he would have not a clear recollection of those threats and the reasons those threats had been made. This is particularly so as he claims that the threats made in 2011 and 2012 have continued to be made by Ms [A]’s family to his friends in India. The Tribunal does not accept that if the applicant believed that he was the subject of genuine threats being made against his life from Ms [A]’s family, he would not be able to recall the nature of those threats and the details of when those threats were made with greater clarity. That he was not able to do so undermines the credibility of the claims being made by the applicant.

Part of the basis of the applicant’s claim is that Ms [A]’s parents are “politically very influential” and “have links with underground criminals”. The applicant was not able to provide any evidence that would indicate Ms [A]’s family are involved in any political organisation in India or have any political influence at all. The applicant said that he was not able to provide any proof of this. He was not able to indicate any political party Ms [A]’s family were associated with, only saying they knew the Ministers.
The applicant claimed Ms [A]’s parents lodged an FIR with the Punjabi police on the basis that he had left his wife. There is no explanation as to why the police in Punjab would have any interest in the fact that the applicant and Ms [A] had separated in Australia or why they would issue an FIR in response to a complaint made by Ms [A]’s parents. It was not claimed that there was any criminal action by the applicant or anyone else as a result of the applicant and Ms [A] ending their relationship while they were living in Australia. The applicant claimed that the police in Punjab did so due to the political influence Ms [A]’s parents held. Despite this, the applicant was not able to provide any documentation or any other information that would confirm such action was taken by Ms [A]’s parents and was followed through in any way by the Punjabi police. The Tribunal does not accept that any complaint has been lodged by any person against the applicant with the Punjabi police for any reason.
The applicant claimed that his friends in India have approached the police to lodge complaints about the threats made by Ms [A]’s family against the applicant. It was claimed that no FIR was issued due to the political influence of Ms [A]’s parents. The Tribunal does not accept that if any complaint had been made by friends of the applicant in India, no documentation or other information would be available to substantiate this claim. The applicant said that he had no proof to substantiate this claim. The Tribunal does not accept that anyone on behalf of the applicant has made any complaint about any threats being made by Ms [A]’s family in India against the applicant or against any other person, including his family who continue to live in India.
In his application, the applicant claimed that Ms [A]’s family have threatened his family in India, saying they would demolish him and his family. He claimed his family was living in terror and advised him to stay away from India. This was inconsistent with the information provided by the applicant to the Tribunal. To the Tribunal he claimed that he did not have any continuing contact with his family in India. He claimed this was because they had taken Ms [A]’s side as to the breakdown of their relationship.
The fact that the applicant claimed in his application made in 2015, three years after Ms [A] had divorced him, that his family was being threatened by Ms [A]’s family and were living in terror and was now claiming that they did not have any contact with him because they had taken Ms [A]’s side as to the breakdown of the relationship undermines the claims being made by the applicant. He did not indicate that he did not have contact with his family due to any threats made by Ms [A]’s family. This inconsistency undermines the claims that any threats have been made in the past or are continuing to be made by Ms [A]’s family against him or his family or any other person in any manner.
The applicant claims that the direct threats made against him by Ms [A]’s family were made in 2011 and 2012. He claims that he is only aware of continuing threats by what friends have told him. It is noted that in his application he claimed that it was his family that had told them that the threats were continuing to be made and that they were living in terror, however, as discussed above, the applicant has now claimed that he does not have any continuing contact with his family.
The application for the Protection visa was made three years after Ms [A] divorced the applicant and he claims the threats were made. This is a significant delay.
The applicant claimed that he did not apply for a Protection visa earlier because he believed that he would be able to return to India and that he would not need to apply for a Protection visa because he would be able to get another visa to be able to live in Australia. He also claimed that he could not afford to apply for the Protection visa. The Tribunal does not accept that if the applicant had been threatened by Ms [A]’s family in 2011 and 2012 and he genuinely believed that there was a risk that he would suffer significant harm if he returned to India from Ms [A]’s family, he would not have applied for the Protection visa earlier. The Tribunal does not accept that if the only claimed threat that the applicant has received since 2012 is via his friends in India telling him that Ms [A]’s family are still threatening him, the applicant would perceive that information as providing a legitimate reason why he would believe that there was a real risk he would suffer significant harm in India when he did nothing about it when he claims to have received threats directly from Ms [A]’s family in 2011 and 2012.
As is set out in the Department’s decision, a copy of which the applicant provided to the Tribunal, the applicant has not held a substantive visa to be able to reside in Australia since 2013. He applied for a series of different visas without success. There is nothing to indicate that when he applied for those visas he did not obtain advice as to his options to be able to remain in Australia based on his circumstances. There is nothing to indicate that at that time he made any claim that he faced any risk of significant harm or persecution in India for any reason.
When the applicant was refused a [Temporary 1] visa, his agent applied on his behalf for Ministerial Intervention in July 2014. Nowhere in the submission in support of Ministerial Intervention does the applicant indicate that he faces any threat or harm for any reason if he were to return to India. When this information was put to the applicant, he responded by saying that because he did not have any proof he could not say anything. The Tribunal does not accept that if the applicant had a well-founded fear of persecution or that there was a risk that he would suffer significant harm if he were returned to India, he would not have been able to raise that issue with his agent and a submission would have been able to be made at the time he applied for Ministerial Intervention. That no such submissions were made at that time indicates the claims made by the applicant are not credible.
As the applicant has been able to make a number of different applications over the period since his last substantive visa expired in 2013, the Tribunal does not accept that any claim that he did not have the financial resources to be able to apply for a Protection visa has any merit. It appears that the applicant was able to obtain advice from qualified migration agents after his last substantive visa expired and at no time until 2015 did he apply for a Protection visa, nor was it suggested to him that his circumstances meant that he would meet the criteria for the grant of a Protection visa.
The basis of the applicant’s claim is that Ms [A]’s family are threatening him as a result of the shame he has brought to their family due to he and Ms [A] being divorced and Ms [A] accusing him of torturing her. The circumstance of Ms [A] is that she has now remarried to an Australian citizen who has sponsored her for a Partner visa. She has been granted a visa to be able to reside permanently in Australia and she resides in Australia. She and her husband have returned to India on a number of occasions. If it were not for the fact that the applicant’s relationship with Ms [A] ended she would not have been in a position to be able to remarry and be granted a Partner visa.
As Ms [A] has now remarried and has the right to reside permanently in Australia, there appears to be no reason why her family would have any interest in the applicant or wish to harm him for ending his relationship with Ms [A] as she appears to have achieved an outcome she desired. The Tribunal does not accept that based on Ms [A]’s current circumstances, her family would be making any threat against the applicant or that there would be a real risk that the applicant would suffer significant harm arising from any animosity held by Ms [A]’s family in India against him.
The Tribunal has considered all the claims made by the applicant. The applicant claims that he faces a real risk of significant harm from Ms [A]’s family in India due to the fact that they are now divorced. As set out above, the Tribunal does not accept the claims made by the applicant and does not accept that if he returned to India there is a real risk that he would suffer significant harm from Ms [A]’s family or from anyone else. The Tribunal does not accept that the applicant has a well-founded fear of persecution in India for any reason.
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.
Hugh Sanderson
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:   For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2020] AATA 295

12 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction