1700143 (Refugee)

1700143 (Refugee) [2017] AATA 2186 (18 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1700143
COUNTRY OF REFERENCE:                  India
MEMBER:Saxon Rice
DATE:18 September 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 September 2017 at 9:05am
CATCHWORDS
Refugee – Protection visa – India – Religion – Sikh – Ethnicity – Jat Sikh – Student in Australia – Divorced husband in Australia – Fears being forced into an arranged marriage – Credibility issues
LEGISLATION
Migration Act 1958, ss 5(1), 5H(1)(a)-(b), 5J, 36, 36(2)(a)-(c), 36(2A) -(2B), 65, 424AA, 499,
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of India, applied for the visa [in] October 2015 and the delegate refused to grant the visa [in] December 2016. On 4 January 2017, the applicant applied to the Tribunal for a review of that decision.
The applicant appeared before the Tribunal on 5 September 2017 to give evidence and present arguments. The Tribunal was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant is not represented in this matter.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
The applicant’s claims in her application for protection filed [in] October 2015 are summarised as follows:
·The applicant came to Australia to study. She was in an arranged marriage at that time, but was very unhappy. Her husband was controlling and she divorced him, in Australia, as soon as she could.
·While in Australia, the applicant’s father died in India. Her family advised her that she had become a financial burden and she would be forced into another arranged marriage on her return.
·The applicant’s brothers have advised her that they have arranged for her to marry a man she has never met who is [age] years older than her. She will be forced to live with his family and will be beaten if she does not obey his mother.
·She could be raped by her husband and she would be without rights or police protection because she has been in a relationship in Australia with an Indian man.
The applicant has provided the Department a copy of her (expired) passport and to the Tribunal, a copy of her renewed passport.
The applicant attended an interview with the Department [in] November 2016. During that interview, she reiterated and expanded on her written claims including the following additional relevant evidence as set out in the delegate’s decision record which the applicant provided to the Tribunal:
·She is a citizen of India, from the state of Punjab. She does not have the right to enter and reside in any other country. She has only ever travelled to Australia.
·Her elderly mother and two married brothers live in India. After further questioning, she advised that her mother is [age] years of age. Her father died eight or nine years ago; she cannot remember the date.
·Her religion is Sikh. She has never experienced any harm in India because of her religion.
·Her caste is Jat Sikh. She has not experienced harm because of her caste because she is from a middle class family.
·After her father's death a marriage was arranged on her behalf. She later found out that this man only married her to come to Australia. I asked her why he thought she would be able to get him to Australia and she indicated that she did not know. While in Australia she experienced difficulties with this man, which included him pushing her.
·She is not currently in a relationship. Because of her marriage she no longer trusts anyone.
·Her ex-husband is also a Jat Sikh but he is from an upper class family. Their marriage was organised by a friend. The friend put the idea of marriage to her mother. Her mother was initially angry about the idea but eventually agreed.
·She and her husband had a very simple wedding because she is from a middle class family. She wasn't ready for the marriage but her mother pushed her.
·She lived with her husband and his family for six-months prior to her arrival in Australia. She had no support from her husband and worked like a servant.
·She enjoys life in Australia. If she returns to India her whole life will be destroyed. She will be a burden on her mother because her mother is old and she will force her into another arranged marriage.
·Her mother lives with [other family members], but they hardly visit her because they work away.
·Her ex-husband's family harassed her mother after she divorced him; saying they wasted their money sending her to Australia. Her ex-husband's family last spoke to her mother in 2010.
·I asked her what date her fear began and she indicated that, since she was married she has not had a good life.
·Her brother's did not have arranged marriages and chose their wives, because they think differently to her.
Following her interview with the Department, the applicant provided another submission dated [December] 2016 in which she provided the following relevant additional evidence:
·Honour killing is very common in her district and if she was in India when she divorced her husband, she would have been killed by her own family or by her in-law’s family.
·The applicant’s [family members] will kill her if she returns to India.
·Her (former) in-law’s family is very rich and have [connections] and if she goes back to India, they can harm her or pay someone to harm her.
·India is not safe for a single woman.
[In] December 2016, the delegate made a decision that the applicant is not a person in respect of whom Australia has protection obligations and refused her application for a Protection Visa. The applicant has provided to the Tribunal a copy of the Department’s Decision Record.
The Tribunal did not receive any further evidence prior to the hearing. At the Tribunal hearing, the applicant made the following relevant statements:
·Prior to travelling to Australia, the applicant lived in her family home with her mother. Her father had passed away some seventeen years ago when the applicant was [age] or [age] and she still speaks with her mother once per week.
·The applicant’s [brothers] live in the town of [name] while her mother lives in the village, most of the time on her own and one of her brothers sometimes visits her mother.
·The applicant said both her brothers had arranged marriages and that [family members] arranged the marriage for her younger brother and someone from the village arranged the marriage for her older brother. The applicant doesn’t talk to her brothers much but she thinks they have happy lives.
·The applicant last spoke to her older brother around two years ago and to her younger brother around one year ago. The applicant has other relatives in India but they are not close.
·In India, the applicant helped on her family farm and in Australia, she has worked in [several jobs] and volunteering with [a non-profit organisation].
·The applicant said she was married in 2007 when she was [age] years old. She then said she was married in 2009 and she and her husband lived together for 2 months in his house prior to coming to Australia.
·The applicant said she was having trouble remembering but she did not have any medical conditions affecting her memory.
·The applicant was introduced to her husband by [a family member] and she told the Tribunal that she did not want to have an arranged marriage (rather than she was forced into a marriage) because she wanted to get more education and get a job.
·The applicant’s intention in coming to Australia was for a better life by getting a better education.
·A friend assisted the applicant to make her student visa application. She began hearing about student visas during 2006-2007 when she was doing [a] course and she did her IELTS (English language) tests at the end of 2008 or early 2009 for her student visa application. Later, the applicant said that her husband decided she could do her IELTS and that they would go to Australia and that maybe something would change when they got there in relation to the applicant not wanting an arranged marriage.
·The applicant said that she did all the preparation for her student visa before she met and married her husband but he paid for everything. She told him that she wanted to go and do something and he agreed. She thought that she would study and he would work but when they came to Australia, something changed and she worked, studied and paid the fees.
·The applicant is against arranged marriages because there is a lot of divorce and the dowry system and lots of things going on.
·The applicant said she applied for protection because after she had a visa refused, she started talking to her family about having divorced her husband (in a “one-sided divorce”) in 2013. Her family told her that these things are not good.
·The applicant applied to the court for a divorce in 2013 and she has the divorce papers at home. She said she received her divorce papers around two or three months after she lodged her request and she told her family when she got the divorce papers.
·The applicant initially told the Tribunal that she had no idea when she separated from her husband. The applicant then said that her husband left her around fourteen weeks after they arrived in Australia (around September 2009) because of small arguments and when bills arrived, he did not want to pay them.
·The applicant said that girls are not safe in India and if she has a good husband and an education she would have a happy life but if uneducated then there are problems as girls have no rights in villages.
·The applicant said that she does not have any connection with her brothers and they told her that they don’t want to see her again because she humiliated them.
·The applicant said that her [male family members] are very humiliated and it could come to the stage that she could be killed because she is a girl and she has to do as they say and because she got divorced.
·Her brother will say to her that she cannot stay with her mother if she returns to India and they will say to her that she has to get married again and it will start all over.
·The applicant knows her brothers think this because in 2013 she got a divorce and phoned her mother and they must have had a discussion and she was told that girls don’t do what you have done and they don’t care if she lives or dies and they don’t want her living in their mother’s house.
·When the applicant spoke to her brothers one and two years ago, they said she was wrong. She spoke to them then because she “started to try with them”.
·In relation to whether she has a fear of her brothers, the applicant said that in Australia she is independent but in India, she does not know where she would live or work.
·The applicant said that she fears her family and her ex-husband’s family. She said her ex-husband’s family will blame her. She said that before the divorce, everyone was ok but after the divorce, everyone changed.
·The applicant does not know where her ex-husband is.
·In relation to whether anyone has threatened to kill her, the applicant said that her brothers said they don’t care what happens to her and whether she lives or dies and when they talk to her it is not in a good way.
·She fears she does not have any money and she cannot survive in India but she can survive in Australia. She said she doesn’t know how she will start all over again without any support from family and she doesn’t trust anyone in India and she doesn’t know what they could do.
·She forgot to mention the claim outlined in her protection visa application that her brothers have advised her that they have arranged for her to marry a man she has never met and who is [age] years older than her because she didn’t look at her paperwork before she came to the Tribunal hearing and she was going on about other things.
·The applicant did not mention her [concerned male family member] when she discussed her family members with the Tribunal because he is very strict and very religious and doesn’t believe in divorce.
·The applicant has no evidence of her marriage and she only has the paperwork for her divorce in Australia. She is not divorced in India.
·The Tribunal asked the applicant about her delay in applying for a protection visa given she said she told her family about her divorce in 2013 and was told then she was in big trouble but it was October 2015 before she applied for protection. The applicant said that she didn’t get a good response from her family and she found out she couldn’t stay at her mother’s house and then she made the decision. She said the financial support decreased and then it cut out altogether and her mother sent paperwork that was of no use for her application and then her family advised her that they could not support her any longer.
·In relation to the Tribunal’s concerns regarding the applicant’s credibility generally, the applicant told the Tribunal that there were no lies. She said that sometimes she is under a lot of stress and life doesn’t go in the direction that she wants. For example, she wanted to study and get a higher education but the total opposite happened.
·The applicant said that if she returns to India, she will not have support from her family, she doesn’t know where to start and she has no money.
The Tribunal notes that the applicant asked the Tribunal to telephone her friend, [Ms A] to be a witness. During the hearing, the Tribunal tried to call [Ms A] three times, including from the applicant’s telephone to take her evidence. However, the Tribunal was unable to connect with [Ms A].
The Tribunal provided the applicant until Friday 8 September 2017 to provide it with a copy of her divorce papers and for [Ms A] to provide a written statement in place of her oral evidence. The applicant agreed that this timeframe was reasonable.
On 8 September 2017, the applicant provided the Tribunal with a copy of her Divorce Order in the Federal Magistrates Court of Australia from her husband [dated] [August] 2012 and which took effect on from [September] 2012. The Divorce Order states that the applicant and her husband were married [in] August 2007.
[Ms A] also provided a statement in relation to the applicant’s character and their relationship but did not refer to or provide any supporting evidence regarding the applicant’s claims.
Country of reference
The applicant claims and the Tribunal is satisfied on the basis of the personal details provided, that she is an Indian national. India is therefore the receiving country for the purpose of assessing the applicant’s claim for protection.
Assessment
The applicant gave evidence to the Tribunal that her application for protection was prepared by herself and the details of her application were true and correct. She stated that she is satisfied that her visa application is accurate and complete. She stated that she has not lodged any documents with the Department or that Tribunal that are false or misleading or incomplete and she has not had and changes in her circumstances regarding her claims since making her protection visa application.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of India, there is a real risk she will suffer significant harm.

During the hearing, the Tribunal discussed with the applicant her background, her family, her education, her employment, where she lived in Punjab, her reasons for leaving India and why she fears returning to India. The Tribunal found aspects of her evidence to be lacking in detail, lacking in credibility, contradictory and unconvincing. There were a number of inconsistencies in her evidence which raise issues in relation to the veracity of her claims. The Tribunal is of the view that she is not a reliable or credible witness for the reasons that follow.
The Tribunal accepts that the applicant has received a Divorce Order in the Federal Magistrates Court of Australia. However, the Tribunal does not accept that the applicant has been or will be forced into an arranged marriage against her will or that she faces any risk of harm from her family or any other family upon return to India due to her Australian Divorce Order.
The applicant first told the Tribunal that she was married in 2007. However, she then said she was married in 2009, only a couple of months prior to her travel to Australia and the marriage was arranged for her against her but she preferred to continue her study and to get a job. However, this last account differs considerably from her statement to the Department that she “lived with her husband and his family for six-months prior to her arrival in Australia” and the Divorce Order the applicant provided to the Tribunal which states that she married her husband on [date] August 2007.
Other significant inconsistencies in the applicant’s evidence and central to her claims for protection include evidence relating to her father’s death, her brothers’ marriages, her mother’s circumstances and whether a marriage has been arranged for the applicant when she returns to India.
For example, the applicant’s protection visa application states that while in Australia, the applicant’s father died in India and her family advised her that she had become a financial burden and she would be forced into another arranged marriage on her return. She also stated that her brothers advised her that they have arranged for her to marry a man she has never met who is [age] years older than her. However, during her interview with the Department, the applicant said her father died prior to her arrival in Australia, some eight or nine years earlier. She also said, in relation to her claim that another marriage has been arranged for her with a man considerably older, that she just knows she will be forced to re-marry due to “life experience” and that [family members] have both mentioned the idea of her re-marrying. She did not substantiate her claim that a man had been identified for her and that he was [age] years older than her.
The applicant also then told the Tribunal that her father died some seventeen years ago and when it raised a concern about these inconsistencies, the Tribunal was unconvinced by her response that she was trying to survive by herself in Australia. She said that she doesn’t know why it was written that her father passed away eight or nine years ago because she wrote that it was seventeen years ago (which still contradicts her protection visa application that her father died while she was in Australia). The applicant said she was sorry if at one stage she said one thing and at another stage she said something else because she was trying to survive on her own and it was difficult to remember everything because life was very stressful. The Tribunal notes that earlier in the hearing, when the applicant suggested she was having problems remembering things, she also told the Tribunal that she does not suffer from any medical conditions affecting her memory.
The Tribunal also notes that the applicant told the Department that her brothers did not have arranged marriages and that her mother was not independent and lived with one of her brothers. However, the Tribunal notes that during the hearing, the applicant said that both her brothers’ marriages were arranged marriages (which suggests the applicant’s arranged marriage is not unusual in her family or in Indian culture) and that her mother continued to live in the family house on her own but she leased the farmland and the applicant’s brothers would visit her. This also suggests to the Tribunal that contrary to the applicant’s earlier assertion, her mother continues to live independently.
Similarly, the applicant’s assertion that she would be controlled or harmed in India by the male members of her family does not appear to reflect hers or her family’s circumstances prior to her travel to Australia. The applicant told the Tribunal that she was very well educated in India prior to coming to Australia. She also told the Tribunal that she had the support of her family in applying for a student visa and since she has been in Australia, the applicant referred to ongoing financial support from her family (until she encountered visa difficulties). The applicant has also lived independently in Australia and she did not feel she needed to consult or discuss her relationship with her estranged husband with her family for three to four years, or her filing for divorce in Australia until after it was granted. In addition, the applicant told the Tribunal that she has continued to engage with her brothers despite any suggestion they may harm her if she returns to India and she told the Tribunal that her mother continues to live independently in India. When the Tribunal discussed these points with the applicant, she said that if she goes back, no one will support her and if she was in India, she could not have divorced.
When the Tribunal discussed with the applicant her fear of returning to India, she suggested that her [family members] might kill her or they did not care what happened to her. This is not a claim the applicant had articulated previously. Similarly, when the Tribunal discussed the applicant’s fear of her ex-husband’s family, the applicant was very generalised in her response and said they would blame her. Overall, the applicant was evasive in her answer to the Tribunal’s questions regarding the harm she fears and the Tribunal also notes that the applicant had previously told the Department that her ex-husband's family harassed her mother after she divorced him; saying they wasted their money sending her to Australia. She said her ex-husband's family last spoke to her mother in 2010. Again, the Tribunals finds this evidence contradicts what the applicant told the Tribunal regarding the timing of her separation and divorce.
While there are numerous other inconsistencies in the applicant’s evidence (including how her marriage was arranged, when she separated from her husband and the timing of when she claims to have told her family of her divorce in Australia), the Tribunal finds these inconsistencies, fundamental to her claims, to be contradictory and lacking in credibility.
Contributing to the Tribunal’s findings is the fact that the applicant did not apply for a protection visa for more than six years after her arrival in Australia and more than three years after her divorce from her husband in Australia. On the one hand, the applicant claimed to have left India in fear of her life due to her reluctance to have an arranged marriage and that her family had told her that they did not care what happened to her after she told them of her divorce in 2013. The applicant also told the Tribunal she was in contact with the Department of Immigration in relation to her student visas. If the applicant genuinely held the fears claimed, the Tribunal would have expected her to have lodged a protection visa application, or to have at least made inquiries with the Department, shortly after her arrival in Australia or at least following her divorce in 2012 or her claimed conversation with her family in 2013 and well before her visa refusal in 2014, the finalisation of her appeal to the MRT in 2014 or the finalisation of her request for Ministerial intervention in 2015.
In addition, the Tribunal does not accept the applicant’s explanation that she applied for a protection visa after her visa was refused and after she talked to her family about her divorce. This explanation contradicts the actual timeline of events being that she told the Tribunal that she told her family of her divorce after she received it. Based on the applicant’s Divorce Order, this was in August 2012. The applicant was not refused a visa until 2014 and therefore, there is a large discrepancy in the timeframe the applicant claimed to have discussed her issues with her family. The Tribunal also notes that the applicant referred to her family’s withdrawal of financial support. However, the applicant also appeared to relate this to her application for a student visa in 2013 which again contradicts the applicant’s claims regarding her divorce and her discussions about her divorce with her family.
Finally, in accordance with s.424AA procedure, the Tribunal advised the applicant that her departmental file included a summary of her meeting with [a migration organisation] on [date] September 2015. The Tribunal advised the applicant the summary of her meeting was provided to the Department by [a migration organisation] and it states that “Client is considering lodging a PV although she understands that she does not have grounds for PV. Client maintains that she has no prospect of life and work in India and that is the reason she wishes to stay in Australia.” The Tribunal explained that this information was important because it could cause the Tribunal to doubt the genuineness of the applicant’s claims to fear returning to India.
The applicant was invited to comment and advised that she was entitled to seek additional time to do so. The applicant did not seek additional time and stated that she had already lost her family and everything else. She said she talked to them about her visa and her divorce and how strict her family is. The applicant also said she discussed her case with a female and they gave her advice and they told her to apply for a protection visa. She said she also told them about her Sikh religion. The Tribunal clarified for the applicant that the information suggested that the discussion during her meeting with [a migration organisation] was that she understood she did not have grounds for a protection visa application and not that [a migration organisation]advised her to apply for protection. The applicant said that there was no talk about the conditions of the protection visa, she only went to get advice on what she could do.
For the sake of completeness, the Tribunal does not accept that the applicant is unable to return to India because she is a single woman or because she is divorced in Australia. The Tribunal acknowledges country information that suggests a level of societal discrimination in relation to women and divorce in India. However, as discussed with the applicant, the level of discrimination varies depending on the person’s caste and personal circumstances. This was acknowledged by the applicant when, in relation to divorce, she stated that it depends on who the family are and if you are educated, they won’t say too much.
The Tribunal finds that the applicant is from a middle class, educated family in India (particularly evidenced by the support provided to the applicant in this regard). In addition, the applicant referred to the high rates of divorce as a reason why she did not want to participate in an arranged marriage which might indicate that divorce carries less stigma than it once did in her society. On this basis, the Tribunal is of the view that the applicant and her family are unlikely to face any considerable societal discrimination on account of her (Australian) divorce. In any case, the Tribunal also finds that societal discrimination does not amount to serious or significant harm.
In relation to single women, the Tribunal noted that the applicant’s mother still lives independently and it can see no reason why she could not return to India and live with her mother. In addition, the Tribunal noted that the applicant had suggested that she could not get a job but she is very well educated holding a Bachelor’s degree, and Advanced Diploma and a Diploma, she has gained considerable employment and volunteer experience and she can speak, read and write English and that all these attributes would enable her to get employment in India.
The applicant told the Tribunal that her brothers would not let her live with their mother and she could be forced back in to the same life. As outlined above, the Tribunal does not accept these claims. In relation to employment, the applicant said that it is very difficult without support. The Tribunal finds that there is no reason the applicant cannot return to India and live with and be supported by her mother. The Tribunal also finds that there is no reason that might impact the applicant’s ability to find employment in India.
When these factors are considered together, the Tribunal finds that the applicant’s claims in relation to any fear of returning to India to be lacking in credibility. Accordingly, the Tribunal finds that the applicant was not forced into an arranged marriage against her will and will not be forced into an arranged marriage against her will if she returns to India.
It follows that the Tribunal does not accept that the applicant has been in any way harmed by her family in the past; that the applicant has been threatened by her family or her estranged husband’s family; or that she faces a real chance of serious harm or a real risk of significant harm if she returns to India.
Cumulative assessment
Considering the applicant’s individual circumstances and country information on a cumulative basis, the Tribunal finds his fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Considering the applicant’s individual circumstances and country information on a cumulative basis, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India that there is a real risk he will suffer significant harm.
CONCLUSIONS
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 criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Saxon Rice
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.
…

[2017] AATA 2186

18 September 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction