1621469 (Refugee)

1621469 (Refugee) [2020] AATA 3185 (30 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1621469
COUNTRY OF REFERENCE:                   India
MEMBER:Nathan Goetz
DATE:30 June 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 30 June 2020 at 5:50pm
CATCHWORDS
REFUGEE – protection visa – India – particular social group – women in India – complementary protection – gender-based harm – long-term residence in Australia – fear of sexual assault and kidnapping – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 91R, 425, 499
Migration Regulations 1994 (Cth), r 2.08; Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
MIEA v Wu Shan Liang (1996) 185 CLR 259
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 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
[The first applicant] and [the second applicant] were married in India [in] February 2008. [The third applicant] was born in India on [date] and is their son.
On 26 April 2008 [the first applicant] applied for a student visa. This was granted on 6 June 2008 and she arrived in Australia [in] June 2008 with [the second applicant] and [the third applicant] who held student visas as dependent family members.
[In] September 2008 [the second applicant] departed Australia for India.
[In] March 2010 [the first applicant] departed Australia for India.
[In] April 2010 [the second applicant] and [the first applicant] returned to Australia.
On 25 June 2010 [the first applicant] applied for a skilled temporary visa with [the second applicant] and [the third applicant] listed as dependents. The same day, [the first applicant] applied for a skilled residence visa.
On [date] [the fourth applicant] was born in Australia. She is the daughter of [the first applicant] and [the second applicant], and the brother of [the third applicant]. Due to r.2.08 of the Migration Regulations 1994, [the fourth applicant] was deemed to have applied for the same visas as her parents.
[In] August 2011 [the first applicant], [the second applicant], [the third applicant] and [the fourth applicant] departed Australia for India.
[In] September 2011 [the first applicant], [the second applicant], [the third applicant], and [the fourth applicant] returned to Australia.
On 1 February 2012 the skilled temporary visa was refused on the basis that bogus documents had been provided. On 21 February 2012 an application was made to the Tribunal for a review of this refusal decision. On 29 November 2012 the Tribunal affirmed the refusal decision. The decision was made in respect of all four applicants. Presumably, [the fourth applicant] was added to the skilled temporary visa application
On 11 June 2013 the application for the skilled residence visa was refused. On 9 August 2013 an application was made to the Tribunal for a review of this refusal decision. On 27 September 2013 the Tribunal found it had no jurisdiction to review the decision.
On 11 September 2015 the applicants applied for protection visas.
The applicants were invited to participate in a delegate interview on 8 December 2016. Their migration agent contacted the Department and advised that the applicants declined the opportunity to participate in the interview. On 12 December 2016 the delegate refused to grant the protection visas. On 15 December 2016 an application was made to the Tribunal for a review of the refusal decision.
The delegate decision was submitted with the review application, and the Tribunal was also provided with a birth certificate for [the first applicant] and [the second applicant]’s third child, Master [A], who was born in Australia on [date].
On 20 May 2020 the applicants were sent an invitation to attend a Tribunal hearing on 17 June 2020 commencing at 10am. The Tribunal hearing was to be conducted by due to the COVID-19 pandemic.
The hearing invitation noted that the Tribunal had considered the material but was unable to make a favourable decision on the material alone. Accordingly, the applicants were invited to a Tribunal hearing so they could give evidence and present arguments.
On 9 June 2020 the Tribunal received correspondence from the applicants’ migration agent [named]. The correspondence stated that he had received instructions from the applicants to request that the Tribunal determine the protection visa application ‘on the papers’. The email confirmed that the applicants noted the 10 June 2020 deadline for further material to be provided, but that the applicants did not intend on filing any additional material in support of the protection visa applications.
The Tribunal is required to offer the applicants who seek review of a protection visa refusal decision a Tribunal hearing unless certain circumstances are present. So far as relevant to this case, s.425(2)(b) of the Act dispenses with the hearing requirement if the applicant consents to the Tribunal deciding the review without the applicant appearing before it.
As the applicants have consented to this course, the Tribunal has proceeded to determine the matter based on the material it has.
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
In the protection visa application filed by [the first applicant], she identifies as a [age]-year-old woman who was born in [the Kapurthala] district of the Punjab state in India. She claims Indian citizenship and that she has no other citizenship or the right to enter and reside in any other country. Her protection visa application form declares that she was making her own claim for protection.
When asked in the form why she left India, she wrote that she was the mother of two children. She and her husband were concerned about the safety of her children, particularly her daughter. They were afraid that their children were vulnerable to sexual assault. She also believed that people who returned to Punjab from overseas were targeted for kidnapping. She directed the reader to a cover letter.
When asked what she thought would happen to her if she returned to India, she wrote sexual assault and kidnapping. She directed the reader to a cover letter.
When asked whether she had experienced harm in India, she wrote no. She directed the reader to a cover letter.
When asked whether she sought help within India after the harm, she wrote no. She directed the reader to a cover letter.
When asked if she thought she would be harmed or mistreated if she returned to India, she wrote yes. She was asked to give details. She wrote sexual assault and kidnap.
When asked whether she thought that authorities of Indian could and would protect her if she returned, she wrote no. She directed the reader to refer to a cover letter.
When asked whether she thought she would be able to relocate within India, she wrote no. She directed the reader to a cover letter.
In the protection visa application file by [the second applicant], he identified as a [age]-year-old male who was born in Jalandhar district of the Punjab state in India. He claims Indian citizenship and states that he has no other citizenship or the right to enter and reside in any other country. His protection visa application form declares that he was not making his own claims for protection.
In the protection visa application form filed by [the third applicant], he declares himself to be a [age]-year-old boy who was born in Jalandhar district of the Punjab state in India. He claims Indian citizenship and states that he has no other citizenship or the right to enter and reside in any other country. His protection visa application form declares that he was not making his own claims for protection.
In the protection visa application form filed by [the fourth applicant], she declares herself to be a [age]-year-old girl who was born in [location], in the New South Wales state in Australia. She claims Indian citizenship and states that she has no other citizenship or the right to enter and reside in any other country. Her protection visa application form declares that she is making her own claims for protection. In response to all questions about her reasons for claiming protection, her application reads that ‘my claims are the same as my mother’s. Please refer to cover letter in protection visa application.’
The cover letter referred to is a submission dated 13 September 2015 from the applicants’ migration agent. The submission details the following relevant information:
The applicants are seeking protection in Australia so they do not have to go back to India. Their claim is on the basis that [the first applicant] and her daughter fear gender-based harm including domestic violence, sexual violence, including rape, acid attacks, so-called ‘honour crimes’, forced and child marriage and trafficking and other related violent threats.
We submit that they share a common interest with other women in India and are considered to form a particular social group within the meaning of the 1951 UN Refugee Convention. This is because they share an immutable (or innate) characteristic – their gender – and are perceived as being different by surrounding society. They are subject to widespread and deep-rooted discrimination in the exercise of their rights.
Further, we submit the applicants have claims under complementary protection especially within with meaning of ‘serious harm’ which is clearly defined in s.91R(1) of the Act.
The applicants fear has strong subjective elements however they are well founded and enlivens the protection of the Australian state. We submit the applicants have claims due to their membership of a particular social group, namely as women of Indian nationality they belong to a group that have a common interest in sharing an immutable (or innate) characteristics – their gender – and are perceived as being different by surrounding society and hence face deep-rooted discrimination and possible serious harm or dead in the exercise of their rights.
We note the following disturbing trends in Indian society and to what degree women may face threats.
“India is multicultural and diverse. In general, however, and especially in rural areas where most people live, communities tend to be patriarchal, with deep-rooted stereotypes relating to gender roles. Although the Indian government has launched various campaigns to raise awareness and to change people’s attitudes, women continue to experience widespread discrimination and violence, which is manifest in several ways.
Gender based violence at the hands of family or community members is a serious and widespread problem in India. A study published in 2014 found that 52 per cent of the women surveyed, in the 18-49 age groups, had experienced some form of violence at least once in their lifetime.
In 2013, the National Crime Records Bureau recorded 33.707 cases of rape and 309,546 other crimes against women, including domestic violence, sexual harassment, trafficking etc. While the crime rate is likely to be significantly under-reported, these figures should also be seen in the context that India is a country with a population of 1.2 billion, including some 430 million women aged 15 and over.
Customary practices such as forced and child marriage, violence and killings linked to dowry payments and sex-selective abortion, honour killings, witch-hunting of women, and communal violence perpetrated against cultural and religious minorities continue to be practiced despite laws prohibiting them. Certain minority groups, including Dalits (who are at the bottom of the caste system) and Adivasi (indigenous tribal) women, and women with disabilities, often face multiple and intersecting forms of discrimination and violence.
In certain conflict areas, where the armed forces are deployed against armed insurgent groups, women may face violence and abuse from either non-state or state actors, who are reportedly able to act with impunity.”
We further note:
‘The societal importance given to boys in India has translated into deep-rooted discriminatory practices against girls and women, with devastating effects on their status, health and development and an enormous pressure to produce sons. In the context of declining family size, restrictive policies on reproduction and limited access to unregulated health services, this pressure can have severe consequences on women’s psychological and physical health”.
The applicants fear of persecution is well-founded simply because if returned to India her daughter [the fourth applicant] will face gender-based violence on the basis that Indian men have been socialized to believe that men’s dominance over women is normal and that acts of violence against women are justified due to deep rooted social, cultural and economic contexts.
In respect of their refugee status we submit that the applicants meet all four key elements of the definition that defines a refugee as presented by the 1951 UN Refugee Convention:
It is established and accepted that the applicants are citizens of India who are outside their country thus they satisfy the first element of the Convention definition.
The second principles of the Convention enlivens by the applicants fear of persecution on the basis of ‘serious harm’ as defined in s.91R(1) of the Migration Act 1958.
The third principle of the Convention is met by the applicants’ reason for persecution, namely on the basis of being women considered to form a particular social group of persons within the meaning of the 1951 UN Refugee Convention who will face persecution on the basis of gender-based harm not limited to domestic violence, sexual violence including rape, acid attacks, so-called ‘honour crimes’, forced and child marriage and trafficking and other related violent threats.
The fourth element of the Convention definition is manifested by the fact the applicants have a ‘well-founded fear of persecution on the basis of their long-term residence in Australia. We note the applicants have resided in Australia since 2008 an have integrated into Australian society to such an extent that they have enjoyed a society that is free from gender-based discrimination and harm as they would possibly face if returned to India.
The applicants return to India will possibly result in serious harm. Although there are specific statutory laws in place in India which provide tough penalties for domestic violence, rape, acid attacks, sexual harassment, trafficking and other related offences it was noted in a recent report (April 2014) that effective implementation of these laws, and the allocation of financial resources to support their execution adequately, was reportedly lacking in many instances.
It is for the above reasons that the applicants are entitled to protection and thus seeks to engage Australia’s protection obligations under the 1951 United Nations Refugee Convention and Protocols 1967.
For protection visa applications made on or after 16 December 2014, the meaning of ‘refugee’ is defined in s 5H(1) of the Act. That section, and other related provisions, are intended to codify art 1A(2) of the Convention. Although the cover letter / submission refers to the applicants satisfying the definition of a ‘refugee’ under the United Nations Refugee Convention, the Tribunal understands that the applicants seek to satisfy the statutory criteria which defines a ‘refugee’ in the Act from 16 December 2014.
FINDINGS AND REASONS
The issue in this case is whether any of the applicants are refugees or owed protection on the basis that they satisfy the complementary protection criteria. The Tribunal also needs to consider whether the applicants are members of the same family unit as a person who is a refugee or owed protection obligations on the basis of the complementary protection criteria.
The Tribunal is satisfied that all applicants are citizens of India. There is no evidence, and nor do they claim, to hold citizenship of another country. Therefore, the country of reference for the protection visa application is India.
As indicated to the applicants by the hearing invitation, the Tribunal was not able to make a favourable decision on the basis of the material that had been provided. It was for that reason that the applicants were invited to the Tribunal hearing. The Tribunal hearing would provide an opportunity for the applicants to present evidence and arguments concerning their protection claims and allow the Tribunal to put to the applicants any concerns that it had about their claims. The applicants declined to participate in a Tribunal hearing.

The test for determining well-founded fear was enunciated by the High Court in Chan v MIEA.[1] The Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution for a Convention stipulated reason. Justice Dawson stated in Chan’s case:
The phrase “well-founded fear of being persecuted...” contains both a subjective and an objective requirement. There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear.[2]
[1] Chan v MIEA (1989) 169 CLR 379 at 396.
[2] Chan v MIEA (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263.
Section 5J(1)(a) requires that the person ‘fears being persecuted’ for one of the stated reasons. This appears to incorporate the need for subjective fear, consistent with the Australian courts’ interpretation of ‘well-founded’ fear in art 1A(2) of the Convention.
In the present case, the Tribunal notes that the protection visa application form seems to suggest a subjective fear in relation to both child applicants, whereas the cover letter / submission seems to be directed at the fear of [the first applicant] as an Indian woman, and [the fourth applicant] as a female child. The protection visa application forms of both [the second applicant] and [the third applicant] claim that they have no protection claims, but the cover letter / submission indicates suggests that all applicants have a well-founded fear of persecution on the basis that they have resided in Australia since 2008 and fully integrated into Australian society. The Tribunal is unsure who is actually raising their own protection claims, and on what basis those claims are made.
Additionally, all the applicants have, at some stage, returned to India.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Just because some of the applicant’s have claimed that they have a well-founded fear does not establish that they subjectively hold this fear. Nor does claiming that they have a well-founded fear establish the fact that there is a real chance of serious harm on account on their race, religion, nationality, political opinion, or membership of a particular social group. It is up to the applicants to provide sufficient information to enable a decision-maker to establish the relevant facts.
The Tribunal has a real difficulty with the claims in the protection visa application. The claims are broad statements not accompanied by meaningful detail. The information indicates that [the first applicant] grew up as a woman in India. She claims that her children, particularly her daughter, will be subject to sexual assault. Yet, [the first applicant] does not claim that she has suffered such harm herself as a young female growing up in India, that she has been discriminated against because she is a woman in India, or detailed any other experience that may be evidence to support the claim that there is a real risk of sexual assault, or other discriminatory behaviour or other harm sufficient to constitute serious harm. It is reasonable for the Tribunal to look at [the first applicant]’s own experiences in India, as she would be best placed to talk about what it was like growing up as a young woman in India and the harm that may be directed at her because of her gender. It is telling to the Tribunal that [the first applicant] has not claimed that she has experienced any harm in India, and the Tribunal is at a loss to understand how there is a genuine belief that her children, particularly her daughter, would suffer any harm in India when [the first applicant] has not experienced any harm herself.
There is also the claim that as persons returning to Punjab from overseas are targeted for kidnap. The applicants have not provided any account of their own experiences returning to India from Australia where they were targeted for kidnapping, or otherwise of interest to anyone during their return travels to India. It is curious for the applicants to claim that they would be at risk of targeting for kidnap when they have returned to India and did not experience any such targeting.
The delegate decision summarised country information concerning state protection. The Tribunal is satisfied that this represents the current situation in India.
According to the Department of Foreign Affairs and Trade, gender-based discrimination is prevalent within the state of Punjab. However, the scale of discrimination varies between urban and rural areas and from city to city. Regarding the city of Jalandhar, where [the first applicant] and [the second applicant] originate from, this city has a low crime rate when compared to other parts of India. Further, the national report indicates that crimes against females in the state of Punjab are low, with a crime rate of 17.3 per 100,000 residents.
India maintains a large law enforcement capability, which possess broad power that allow the central and local law enforcement agencies to maintain civil order and public security. These reports identify that law enforcement agencies are supported by a sophisticated judicial system that allows for effective prosecution of criminals.
There are many cases that demonstrate that the Indian authorities take steps to mitigate the social perspectives that violence against females is acceptable. These cases establish that the Indian justice system is taking a hard stance against criminals that have committed violence against females.
The Tribunal is not satisfied that there is a real risk of serious harm to any of the applicants on account of their race, religion, nationality, membership of a particular social group or political opinion because the Tribunal is not satisfied that the applicant’s genuinely believe that such a risk exists. The hearing would have been an opportunity for the applicants to convince the Tribunal that their beliefs were genuine, the basis for their beliefs, and for [the first applicant] and [the second applicant] to talk about their own experiences to demonstrate why their beliefs were genuine, and for the Tribunal to then consider whether those beliefs were well-founded.
Given the migration history as a whole, including returns to India by all members of the family, the Tribunal is not satisfied that the applicants genuinely fear returning to India for the reasons they claim. The Tribunal suspects that the applicants have put forward these claims to achieve a migration outcome, namely permanent residency in Australia, as an alternative pathway to the residency that was denied to the family through the refusal of the skilled visa.
When it comes to the issue of whether there are substantial grounds for believing that, as a necessary and foreseeable consequences of the applicants being removed from Australia to India, there is a real risk that the applicants will suffer significant harm, the claims are generalised and speculative. On the material provided, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk of any of the applicants suffering the significant harm as defined in the Act as a necessary and foreseeable consequence of their removal from Australia to India.
CONCLUSION
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Nathan Goetz
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 3185

30 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction