1700258 (Refugee)

1700258 (Refugee) [2017] AATA 3133 (15 May 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1700258
COUNTRY OF REFERENCE:                  India
MEMBER:Saxon Rice
DATE:15 May 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 May 2017 at 4:23pm
CATCHWORDS
Refugee – Protection visa – India – Particular social group – Mixed caste marriage – Mixed religious marriage – Divorced women – Remarriage – Sikh extremists – Property dispute – Threats of violence – Delay in applying for protection – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rongand Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 13 December 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 16 March 2016. The delegate refused to grant the visa on 13 December 2016.
This is therefore, an application for a review of that decision.
The applicant was given an opportunity to appear before the Tribunal on 27 April 2017 to give evidence and present arguments. The hearing was conducted in the Punjabi and English languages. The applicant is not represented in this review.
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.
CLAIMS AND EVIDENCE
Evidence
The evidence before the Tribunal includes the following relevant material:
·The completed protection visa form, lodged on 16 March 2016, including three news articles dated 16 June 2013, 5 and 6 January 2015.
·A photocopy of the applicant’s Indian passport.
·The delegate’s protection visa assessment record (‘delegate’s decision record’) of 13 December 2016.
·The applicant’s online application for review on 6 January 2017, which included a copy of the delegate’s decision record.
·Submission from the applicant dated 6 February 2017 including:
oundated photos of her mother and sister;
oa medico legal report for [the applicant’s sister] dated [in] December 2016 in English; and
oPunjabi police report dated [in] December 2016 and English translation.
·The applicant gave oral evidence at a Tribunal hearing on 27 April 2017.
On 28 April 2017, the applicant provided the following documents:
·Unsworn, unsigned [Police] Witness Statement by the applicant dated [in] July 2016.
·Unsworn, undated statutory declaration from the applicant.
·Statement from [Psychologist 1], dated [in] February 2016 relating to the nature of the applicant’s relationship with her husband.
·Affidavit from the applicant’s mother, [named], dated 28 April 2017 in English.
·Document titled “Legal Notice” dated [in] October 2016 served on [a company], [at an address in Village 1] regarding payment for the lease of land in English.
·A number of documents titled “Register Mutation” in Punjabi dated as printed [in] July 2016 and certified on [a date in] November 2016 and English translation.
·Document titled “Transfer of Property” in Punjabi dated [in] June 2016 and stamped certified on [a date in] November 2016 and English translation.
Background
When lodging the application to the Department, the applicant stated that she was born in [her home town in] Punjab. She stated on the application form that she speaks, reads and writes Punjab and she can speak Hindi and English. She indicated that her religion was Sikh.
The applicant stated that she completed a [qualification] in Punjab. The applicant did not provide any employment history and stated that she is unemployed.
The applicant holds an Indian passport issued in 2007. According to details provided in her protection visa application, the applicant first arrived in Australia on 1 December 2008 on a [temporary] visa and she stated that he has not previously travelled to any other countries.
Claims
The applicant’s claims, sourced from her protection visa application and evidence at interview as set out in the delegate’s decision record provided to the Tribunal by the applicant, can be summarised as follows:
·The applicant will be killed by extremist Sikhs if she returns to India.
·The applicant was previously married to a Sikh man and she claims she divorced her first husband and has since married a Christian man.
·She claims that “inter religion marriages” are social taboo and many other people have been killed in the past and police or authorities didn’t do anything about it.
·Even if she tried to move to another part of India, people would hunt her down and kill her; no one else in the community would ever dare marrying someone outside of their religion.
·The applicant claims it is easy for people to find her and kill her.
·The applicant stated at interview that she could not return to India because she married outside of her caste and also because her husband was from [an Ethnicity 1] background.
·She stated that her family approved of her marriage but her relatives and the society did not. She stated that she and her husband could be killed in India by relatives and/or the society.
·The applicant also stated at interview that her father passed away in March 2014 following which her mother divided the family property and the land equally amongst her, her sister and her brother. She stated that her brother was not happy that the property/land was divided equally. She stated that she feared that her brother would harm or kill her.
·The applicant stated that she completed a [qualification] in India and she also completed a [further qualification] in Australia.
·She stated that she is fluent in Punjabi and Hindi and also speaks good English.
·When asked how she found out about lodging PV, the applicant stated that when she was upset about her status in Australia, she discussed with her friends about how she could remain in Australia. She stated that she also did some online research. She stated that her friends suggested that she could lodge PV if she really did not want to go back to India because of the risks.
·The applicant stated that she has not experienced any harm in India.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of reference
The applicant claims and the Tribunal is satisfied on the basis of the personal details provided, that he is an Indian national. India is therefore the receiving country for the purpose of assessing the applicant’s claim for protection.
Tribunal hearing
At the Tribunal hearing, the applicant told the Tribunal that she completed a [qualification] in India in [specified years]. The applicant initially said she had no other qualifications and then said she had done a course in [two other subjects]. The Tribunal noted that the delegate’s decision record that the applicant provided to the Tribunal stated that she had also completed a [further qualification] in Australia and asked if this was correct. The applicant said she also completed this qualification.
The Tribunal asked the applicant if she was working and how she was supporting herself in Australia. The applicant said she was not working, friends were supporting her and her mother would give their families in India money in exchange. The Tribunal also noted that the delegate’s decision record states that the applicant was working as [an occupation] and asked this applicant if this was correct. The applicant said this was correct and she has not held any other jobs.
The applicant confirmed that her claims for protection relate to her marriage and a property dispute with her brother.
The Tribunal asked the applicant what she feared in returning to India in relation to her marriage. The applicant said that her relatives and society do not accept her marriage because it is ‘out of caste’. The applicant said her family accepted her marriage but in relation to her ‘relatives’, they think she should marry someone who is Sikh. The Tribunal asked which relatives she was referring to. The applicant said it was her [specified relatives]. The Tribunal asked the applicant why her [specified relatives] did not accept her marriage when her family did. The applicant said that they thought she should marry ‘in caste’ and if she gets married out of caste, then their children think they can do the same thing.
The Tribunal asked the applicant when she first held this fear. The applicant said that it was from the time she was first married in April 2012 and her mother told her that she was getting married ‘out of caste’ and she should not come back to India. The Tribunal asked the applicant if she has been threatened. The applicant said that her relatives said the same thing to her parents. They don’t accept her marriage and society as a whole do not accept the marriage and people that get married out of caste get killed so she is scared she will be killed.
The Tribunal asked the applicant what she was referring to in relation to ‘caste’. The applicant said she was Jat Sikh and her husband was [Ethnicity 1] Christian. The applicant referred to her husband as a ‘black guy’ and they are from different religions. The Tribunal asked the applicant why she thought her and her husband would be targeted. The applicant said there were a lot of cases where Punjabi’s marry Hindu’s and they get killed. The applicant said that relatives told her parents they will kill her and her husband when they initially got married and then since that time, they have said she should get a divorce but if she goes back to India they will kill her.
The Tribunal noted that the delegate’s decision record states that “I asked the applicant if she had received any threats from her relatives or had been harmed by them and she stated no” and asked the applicant why she did not tell the delegate about these threats. The applicant said at that time, she did mention that she was afraid of her relatives and society. She said that relatives had made these threats through her parents and she relayed this. The Tribunal asked the applicant if the delegate’s decision record was incorrect. The applicant said that she would not say anything about what had and had not been said but that is what relatives were saying at the time. The applicant went on to say that sometimes she is under a lot of stress and she is depressed so she doesn’t remember everything so now she is thinking of new things and she can’t remember what she said five or six months ago. The Tribunal asked if she had any medical evidence of her depression. The applicant said she used to see a counsellor, approximately one or one and a half years ago. She is not currently on any medication. The Tribunal noted that the applicant would need to provide medical evidence to support her claim that she suffers from a condition that impairs her memory in order for the Tribunal to take these claims into consideration.
The Tribunal also noted that the applicant’s protection visa application does not mention any threats to kill her from relatives but rather, she feared society and Sikh extremists would kill her. The Tribunal noted that it might have difficulty in accepting that her relatives have been threatening to kill her since 2012 when it was not mentioned in her protection visa application and asked the applicant if she could explain why she did not mention any fear in relation to her relatives in her application. The applicant said she did not mention relatives because she referred to society and she thought this included relatives. The Tribunal again noted that it might have difficulty in accepting that the applicant would include ‘relatives’ in ‘society’ if a named relative had threatened to kill her and her husband, the Tribunal would expect the applicant to say so. The applicant said that she included relatives in society and she was not specifically asked about relatives.
The Tribunal noted that the applicant had said her fear of returning to India was from the time she was married in 2012 and asked why it then took her almost four years to apply for a protection visa as this delay could cause the Tribunal to doubt the credibility of her claim. The applicant said that at that time, she had applied for a partner visa which was refused and then she applied to the MRT and she did not think she would have to go back to India. The Tribunal asked again, if she was in fear of her life, why she did not lodge a protection visa applicant sooner. The applicant said that she thought she would be able to stay in Australia but it was only when she was told she could not, she knew she could not go back to India.
The Tribunal noted that the delegate’s decision record states that the applicant had said to the Tribunal (differently constituted) during her migration review in May 2015 that she had no problem returning to India and asked why this was the case if she was in fear of her life. The applicant said that at that time, she thought her case would be accepted so she did not have to go back to India but she also said that “if something happens, who would be responsible”. The Tribunal noted that there is no evidence of the applicant raising any concerns to anyone regarding her fear of returning to India, including that the delegate’s decision record states that “The applicant was counselled on a number of occasions by the department’s compliance officers between June 2015 and December 2015 whilst her Ministerial Intervention request was ongoing that she would need to be prepared for possible departure from Australia as it was highly unlikely for the Minister to intervene in her case”. The Tribunal noted that this might suggest to the Tribunal that the applicant does not hold the fear she is now claiming as it would have expected her to raise her concerns given the multiple opportunities to do so. The applicant said that she did not think her case would be refused and she thought she would be able to stay.
The Tribunal also noted that the applicant had been referring to her fear in relation religion rather than ‘caste’ and asked the applicant if she was concerned about returning to India on the basis that she was Sikh and her husband is Christian. The applicant said that she was concerned about this too. She said that she is Sikh Punjabi and he is a “black guy”. She said there was an attack a few years ago because people don’t like black people.
The Tribunal noted that the DFAT Country Information Report for India dated 15 July 2015, states that India is officially a secular and multi-ethnic country, and as such inter-faith and inter-caste marriages are legal although there is significant social pressure for individuals to marry within their own caste and/or religion. The report also acknowledges that “honour killings” occur.[1] The Tribunal noted that while there is social pressures regarding inter-religious marriages, its concerns in relation to the applicant’s circumstances include:
·The applicant’s family support the marriage.
·There does not appear to be any specific threats against the applicant.
·The applicant said she has held this fear since her marriage in 2012 but did not apply for a protection visa for almost 4 years.
·The applicant told the Tribunal in 2015 that she had no problem returning to India.
·The applicant had multiple opportunities to raise her concern about returning to India throughout her partner visa application process but did not do so.
[1] Department of Foreign Affairs and Trade, Country Information Report: India, 15 July 2015, p. 13.
The Tribunal put to the applicant that these concerns could cause the Tribunal to conclude that the applicant does not face a real chance of serious harm or a real risk of significant harm on account of her marriage and asked the applicant if she would like to comment. The applicant said that she did not think her partner application would be refused and she did not think she would need to return to India. The applicant then said that when she was told she would have to return to India, she said she did not have a problem returning but she would have to take her husband with her because he could not stay in Australia without her because he was depressed. The Tribunal reiterated that her statement to the current Tribunal that she would not have a problem returning to India again suggests that she does not hold the fear that she claims. The applicant said that she cannot go back to India because if she does, her husband will have to go with her and they both fear for their life.

The Tribunal asked the applicant where her husband was and if there was any reason he was not at the hearing. The applicant said that she understood that she had to come by herself. The Tribunal said it would have difficulty in accepting that the applicant thought she had to come alone given she brought a friend who was going to be a witness for her. The applicant said that she brought her friend because she knows her family in India.
The Tribunal asked the applicant what she feared in returning to India in relation to her brother and the property dispute. The applicant said the family property and house in India has been divided in three names and her brother wants everything in his name and as a result, her brother has had a fight with her sister and her mother and this is what she fears.
The Tribunal asked the applicant about the circumstances of the property dispute. The applicant said that initially, her brother just used to say things because he expected he would be able to get everything but then when he realised he could not, he attacked her mother and sister with [an implement] and they lodged a report with police. She said that he was previously staying on the top floor of the house and her mother and sister lived on the ground floor but after the attack, he moved out but he is still threatening. The applicant said that she had provided the Tribunal with all the documentation relating to the injuries of her mother and sister, the FIR, medical report and documentation regarding the division of the property. The Tribunal noted that it had not received any document relating to the division of the property and confirmed this in the Tribunal database. The applicant said she did not bring the document with her but she thought she had sent it to the Tribunal and agreed to provide the document by email by close of business the following day, 28 April 2017.
The applicant told the Tribunal that she was not sure when the property was divided but thought it was around February or March 2016. She said the issues began in January 2016 and around [two dates in] January 2016, her brother “asked for someone to come over” and convince her mother not to divide the property but to give it all to him and then for the next 2-3 months there were arguments. The applicant also clarified that the house was divided between herself, her sister and her brother but the land was divided between herself, her sister, her brother and her mother.
The Tribunal asked the applicant about her brother’s move out of the house. The applicant told the Tribunal that her brother moved out of the house after he attacked her sister and mother because it was all getting too much and because of the FIR. The applicant said that her sister-in-law convinced him to move out and she did not know why, but thought it might have been so that his mother would convince him to stay by agreeing to his demands.
The Tribunal asked the applicant what she fears in relation to her brother. The applicant said that her brother wants her to give him her share and as he has already attacked her sister and her mother, he could attack her too. The applicant said that these things are normal in India, people kill family members for property and sons kill their fathers. The Tribunal asked the applicant about the last time she spoke to her brother. The applicant said it was in January 2016, he asked her for her share and she said no, and they have not spoken since. The Tribunal asked the applicant if her brother has threatened her. The applicant said he was only fighting with her sister and mother and threatening them. She said that because he attacked her sister and mother, then they said to her that if he does it to them, he could do it to her too. The Tribunal sought to clarify the timeline with the applicant and the applicant advised as follows:
·In January 2016, she last spoke to her brother, he asked for the land and she said no.
·In February or March 2016, the house was divided and there was talk of dividing the land and her brother said it should not be divided that way but the land was actually divided later. The income they used to receive from the land should have gone to her mother but her brother kept it.
·The applicant was not sure when the land was actually divided as she had just received the paperwork. Before her interview with the department, she found out about the land but she did not receive the paperwork until after.
The Tribunal noted that the delegate’s decision record states that the applicant said she could provide evidence to the department of her property ownership but she did not provide that evidence in the allocated time and asked the applicant if there was any reason why she did not provide the department with that document. The applicant said she was not sure whether she sent the document to the department after her refusal but she said she did send the document to the Tribunal (which the Tribunal advised the applicant had not been received). The Tribunal also put to the applicant that her account of the property dispute is vague and confusing. The Tribunal noted it could not understand why she last spoke to her brother in January 2016 regarding the land division when nothing was divided before February or March and even then, it was only the house and the land was not divided until later. The applicant said the land was to be divided in four names and her brother was talking to them to see if they would agree to his demands. She said he did not know their mother had already divided the house in three names.
The Tribunal also put to the applicant that her account of the dispute as provided to the Tribunal is inconsistent with the account she provided to the delegate as recorded in the delegate’s decision record given it states that the applicant said she was told by her mother about the property division in July or August 2016 and asked the applicant if she could explain this inconsistency. The applicant said she cannot remember exact dates and she told the department she could not remember exact dates. The Tribunal acknowledged that it can sometimes be difficult to remember exact dates but noted that it might have some concerns about her inability to remember general timeframes in relation to this issue given it has all taken place in relatively recent history over the last 12-18 months. The applicant said she is relying on what her mother and sister tell her and she cannot remember exactly when.
The Tribunal noted that the applicant said her brother had been talking to her about her share in January 2016 and there were lots of arguments for a couple of months following and asked why she did not mention this claim in her protection visa application which she lodged on 17 March 2016. The applicant said she did not know it would get so out of control and she never expected that he would attack her mother and sister either.
The Tribunal asked the applicant about the document relating to the property distribution that the Tribunal had not received. The applicant said the document says that the house was divided into three names and the land was distributed into four names. She said it was issued through the courts and it is an official land register. The applicant said that the document shows the amount of land that has been distributed in four names and the amount of income generated by the land to be divided four ways. The Tribunal asked the applicant how much land she owns. The applicant said she did not know exactly but the total amount of land divided was six or seven ‘kille’[2]. The applicant confirmed that the document she is referring to specifies her ownership. On this basis, the Tribunal noted that it was surprised she was unable to say how much land she owned. The applicant said she was told the land was divided and distributed in four names and she did not go into the details of how much to each. The Tribunal asked the applicant how much her share of the income generated from the land was. The applicant said she never asked how much the income was but said she was happy for her share to go to her mother for as long as her mother lives. The Tribunal asked the applicant why she had not asked about the income. The applicant said there was no reason, she was just happy for the income to go to her mother.
[2] The Tribunal has researched the value of a ‘kille’ and one translation website refers to a ‘kille’ being equal to an acre. See
The Tribunal reiterated its concerns to the applicant in relation to the inconsistencies in her account of when the issue began, when the house and land was divided, when she was aware of the issue and her inability to recall the relatively recent past with some consistency. The applicant stated that when she was going through so much she would automatically get stressed because her mother and sister were attacked and due to all the stress and the depression, she would listen but she could not remember when. The Tribunal noted that it would have difficulty in accepting that her evidence to the Tribunal or the delegate was compromised in the absence of any medical evidence.
The Tribunal also asked the applicant what happened after the FIR was lodged following the attack on her mother and sister. The applicant said the police told her mother and sister to be alert. The Tribunal asked the applicant about the FIR document she had provided and noted that it was hand written and not on any official police form or letterhead. The applicant said the Tribunal could call the police station to confirm but she provided all the evidence about the incident and they are not fake. The Tribunal noted DFAT country information that states that the manufacture and use of fraudulent documents is prevalent in India and outlined to the applicant that given the Tribunal’s concerns regarding her claim, the unofficial nature of the FIR document and this country information, the Tribunal will need to consider what weight to place on the document. The Tribunal also noted that it would also need to consider what weight to place on the property distribution document the applicant agreed to send the Tribunal.
The Tribunal noted that it had some concerns about the plausibility of her brother moving out of the house as a way of trying to get her mother to change her mind about the property distribution. The applicant said that her sister-in-law convinced her brother to move out because the police were coming around to the house. The Tribunal noted that it sounded as though the police had been quite responsive to the incident by taking the FIR and then coming around to the house and asked the applicant why she could not rely on police protection if she returned to India. The applicant said that the police told her mother and sister that even though her brother was no longer living at the house, he could get someone else to do the same thing and if her sister or mother go out of the house, he could do something and make it look like an accident and police cannot be with them all the time. The Tribunal noted that it had to consider whether the applicant faces a real chance of serious harm or a real risk of significant harm and this did not include a remote chance. The applicant said her brother attacked her mother and sister all of a sudden and they didn’t expect it so they cannot say what he will do. Even though the police have issued him with a warning, they said her mother and sister would need to stay alert.
Evidence of the witness [Ms A]
The witness told the Tribunal that she visited India recently, arriving [in] October 2016. The witness said that during her stay, she visited the applicant’s family and she was there on the day the applicant’s brother attacked the applicant’s mother and sister with [an implement]. The witness said that she thought this attack occurred on [one of two dates in] November 2016 in the morning and the witness visited the house at around 3.30pm that afternoon.
The witness said she was in India for five weeks and the applicant’s brother attacked the applicant’s mother and sister twice during that time. The second time was approximately one week prior to the witness leaving India and the applicant’s sister told the witness about this attack and said that her brother hit her badly and she could not travel because she did not want to show the bruises. The witness then said that the applicant’s mother and sister went to the police after the third attack.
The applicant then advised the Tribunal that she was feeling dizzy and the Tribunal offered the applicant an adjournment which the applicant accepted.
Further evidence of the witness [Ms A]
Following the adjournment, the applicant advised the Tribunal that she was happy to continue with the hearing.
The witness also said that the applicant was not staying in Australia for the money as she has a huge property in India but her husband is [Ethnicity 1] so she can’t leave her husband in Australia and if he goes to India, there is lots of racism against [people of Ethnicity 1] and [Nationality 2] in India.
The Tribunal asked the applicant if there was any further information she would like the witness to provide the Tribunal. The applicant said no.
The Tribunal put the following information to the applicant for the purpose of s.424AA of the Act regarding the evidence of [Ms A] and the attacks on the applicant’s family:
·[Ms A] claimed that the applicant’s mother and sister were first attacked by the applicant’s brother around [two dates in] November 2016 and there was a second attack a couple of weeks later.
·It would appear that both of these attacks occurred prior to the applicant’s interview with the delegate on 24 November 2016 but the applicant did not mention either of these incidents to the delegate.
·The applicant did not raise either of these incidents with the Tribunal during the hearing despite having spoken at length about the claim and the applicant had also referred to the one incident she had discussed as being “unexpected”.
·The FIR provided by the applicant which provides an account of the incident the applicant had referred to does not mention anything about two previous attacks.
The Tribunal outlined that the inconsistency of this information is relevant because it could cause the Tribunal to doubt the credibility of the claim that the applicant fears her brother due to a property dispute or that her sister and mother had been attacked by her brother and cast further doubt on the credibility of the documents the applicant has provided.
The applicant was offered, but did not seek, additional time to respond and stated that she was only made aware of the previous attacks on her sister and mother when the witness told the Tribunal. She said she was otherwise only aware of the third attack and given she just learnt of the other attacks, that is why she began to feel dizzy. The Tribunal noted that the applicant had invited the witness to give evidence and asked what the applicant understood the witness was going to say. The applicant said that the witness was aware of everything that was happening with her family and she knows them quite well.
The Tribunal noted that it might have difficulty in accepting that the witness knows the applicant’s family well but that the applicant was unaware of two previous attacks on her family. The applicant said that they didn’t tell her anything about it because they didn’t want her to go through the stress. The Tribunal asked why she was then informed of the third incident. The applicant said that when she was talking to her family she knew they were under stress so she convinced them to tell her what happened. The Tribunal again noted that it might have difficulty in accepting that the applicant was unaware of this information when she had invited the witness to the hearing to give evidence in support of her application for protection and this information would be central to her claim. The applicant said she was only aware of the third incident because they did not want her to get stressed.
The Tribunal asked the applicant if there was anything else she would like to make the Tribunal aware of in relation to her claims. The applicant said she had already mentioned everything.
Following the Tribunal hearing, the Tribunal listened to the applicant’s interview with the department dated 24 November 2016 in order to clarify the applicant’s evidence regarding threats made by relatives. The department asked the applicant what she meant when she referred to relatives that did not accept her marriage. The applicant said she was referring to [various specified relatives] – close relatives. The department asked the applicant whether those relatives had caused the applicant any harm or threats. The applicant said no, because she had not spoken to them since her marriage when she was aware that they did not accept it. Throughout the interview, the applicant referred on a number of occasions to general threats. The Tribunal is satisfied that the delegate’s account of the applicant’s interview, as the Tribunal discussed with the applicant, is accurate.
FINDINGS AND REASONS
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rongand Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
The Tribunal does not accept that the applicant is a witness of truth and does not accept her evidence about her problems in India, or her fear of returning to India as credible for the following reasons:
·There are significant differences between what the applicant claimed in writing, what she told the Department and what she told the Tribunal (including a differently constituted Tribunal) which causes the Tribunal to consider her evidence lacking in credibility and unreliable.
·The applicant’s evidence was vague and confusing and at times, her evidence evolved throughout the course of the Tribunal hearing.
·In addition to the above concerns, the applicant’s witness provided contradictory evidence regarding attacks on the applicant’s family in India which contributes to the Tribunal’s finding that the applicant is not genuine in her claims.

The detail of the Tribunal’s findings and reasons are outlined below.
Fear of returning to India due to her marriage
While the Tribunal has some doubts about the genuineness of the applicant’s marriage and whether they are still together, for the purposes of this review, it is prepared to accept that the applicant is married to an Australian citizen of [Ethnicity 1] background.
The Tribunal acknowledges country information that outlines significant social pressure for individuals to marry within their own caste and/or religion and that “honour killings” do occur in India. However, the Tribunal also notes that inter-caste and inter-religious marriages are legal in India and it does not accept the applicant’s claim that she (and her husband) will be killed or face a real chance of serious or significant harm if the applicant (or the couple) returns to India on the basis of this marriage as credible, for the following reasons:
·The applicant has consistently said that her family supports the marriage. The Tribunal finds it difficult to accept that the applicant or her husband face a real chance of harm in India when the applicant’s immediate family accept the marriage. However, the Tribunal asked the applicant on a number of occasions who she feared in relation to her marriage and the applicant’s response was vague, generalised and inconsistent referring to ‘relatives’, and then [two specified relatives] and society generally. The Tribunal also put to the applicant that in her protection visa application, she said she feared Sikh extremists and society but not relatives. The Tribunal does not accept the applicant’s explanation for this inconsistency that when she said ‘society’, she thought this included ‘relatives’ and the Tribunal notes that the applicant never again mentioned Sikh extremists. The Tribunal is of the view that if the applicant had genuinely been threatened and/or held a genuine fear of named relatives, she would have said so in her protection visa application and she would have been able to articulate this with greater detail to the Tribunal. The Tribunal finds these accounts contradictory and lacking in credibility. In addition, the Tribunal is not satisfied that country information supports a conclusion that society generally will harm the applicant or her husband on account of their marriage and finds the risk of harm from society to be remote.
·It follows that the Tribunal finds the applicant’s claim during the Tribunal hearing that she has been threatened by relatives to be lacking in credibility. The Tribunal is of the view that the applicant’s evidence in this regard evolved throughout the Tribunal hearing. As outlined in the delegate’s decision, when asked specifically by the department whether relatives (which the applicant had said were her [specified relatives]) had caused the applicant any harm or threats, the applicant said no, because she had not spoken to them since she was married when she was aware that they did not accept it. In addition, the affidavit from the applicant’s mother dated 28 April 2017, the day after the Tribunal hearing states that the applicant’s brother threatened the applicant and her husband that if they come to India he will kill them which was not mentioned by the applicant. The Tribunal finds these significant inconsistencies lacking in credibility and the Tribunal places no weight on the affidavit of [the applicant’s mother] dated 28 April 2017.
·The applicant was vague and confusing when referring to her fear based on her ‘out of caste’ marriage. When the Tribunal asked the applicant what she meant by ‘out of caste’, the applicant said that she was Jat Sikh and her husband was [Ethnicity 1] Christian. At other times throughout the Tribunal hearing, the applicant referred to her husband as a ‘black guy’ and when the Tribunal raised its concern regarding the applicant’s reference to caste yet her description often related to their different religions, the applicant still referred to her husband being a ‘black guy’ and that she is ‘Sikh Punjabi’. The applicant’s witness also referred to the applicant’s husband as [Ethnicity 1] and raised associated racism in India. When considered alongside the Tribunal’s concern regarding the lack of any credible or plausible threat, the applicant’s inability to articulate the reason for why there is a risk of harm to her or her husband (inter-caste, inter-religion or inter-racial marriage) the Tribunal finds that the overall claim is lacking in credibility.
·The applicant claimed to have held the fear of returning to India on the basis of her marriage since she was married in April 2012. However, the applicant told the Tribunal (differently constituted) in May 2015 that she had no problem returning to India. The applicant was also counselled by compliance officers at the department regarding her need to prepare to return to India between June-December 2015 and the applicant never raised any concern about returning to India. The Tribunal does not accept the applicant’s explanation that she was being positive that she would be able to remain in Australia given her partner visa application. The Tribunal is of the view that if the applicant held genuine fear for her life or the life of her husband, and had done for more than three years, that she would have raised this with the Tribunal or the department when provided with multiple opportunities to do so.
·Similarly, the applicant did not apply for a protection visa for almost four years after she claims to have feared returning to India following her marriage in April 2012. 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 enquiries of the department, shortly after her marriage and, as noted above, when provided with multiple opportunities to do so when discussing the possibility of returning to India with the department and the Tribunal.
When these factors are considered together, the Tribunal finds the applicant’s claims in relation to her fear regarding her marriage to be completely lacking in credibility. Accordingly, the Tribunal finds that the applicant has not been threatened by any relatives, society or Sikh extremists regarding her marriage and neither she, nor her husband, face a real chance of serious harm or a real risk of significant harm in India on account of their inter-religious or inter-racial marriage.
Fear of returning to India due to family property dispute
The Tribunal does not accept the applicant’s claim that she faces a real chance of serious or significant harm if she returns to India on the basis of a property dispute with her brother as credible, for the following reasons:
·The applicant’s account of the issues relating to the property division and her brother were vague, confusing and inconsistent with the account the applicant provided to the delegate as set out in the delegate’s decision record. Firstly, the Tribunal is not persuaded that the applicant and her brother were talking about her giving him her share of either or both the property or the land prior to any property division. It does not follow that the applicant and her brother spoke for the last time over her refusal to give him “her share” of something she did not have. Secondly, the applicant told the Tribunal that the house was divided in February or March but the land was not divided until sometime after although the applicant could not remember when which adds further weight to the Tribunal’s finding that it is not plausible that the applicant and her brother spoke for the last time about the applicant’s share of something she did not have and was not decided for some time following. This account is also inconsistent with the account provided to the delegate that records the applicant as being told by her mother about the property division in July or August 2016. While the Tribunal notes that it can sometime be difficult for applicants to remember exact dates or details, in this case, the events occurred in the relatively recent past 12-18 months and the Tribunal was only discussing general timeframes with the applicant rather than specific dates. On this basis, the Tribunal expects that the applicant would be able to recall whether the property division occurred in February or March 2016 or July or August 2016. The Tribunal finds these two accounts contradictory and lacking in credibility.
·The applicant told the Tribunal that the issues with her brother began from January 2016 but the applicant did not include anything regarding the property dispute in her protection visa application which was not lodged until 16 March 2016. The Tribunal also notes that the applicant said that these kinds of disputes were ‘normal’ in India and people kill family members for property and sons kill their fathers. On this basis, the Tribunal is not satisfied of the applicant’s explanation for not raising these concerns in her protection visa application that she did not know the situation would get so out of control. The Tribunal is of the view that the two explanations are contradictory. If such issues are common place in India then the Tribunal would expect that the applicant would raise this concern in her protection visa application given that according to her evidence, there had been a couple of months of arguments prior to her protection visa application and she had not spoken with her brother in more than two months prior to lodgement of her protection visa application. The fact that the applicant did not mention this claim in her application contributes to the Tribunal’s finding that the claim is lacking in credibility.
·The applicant was vague and evasive when asked to detail the document regarding property distribution (which the Tribunal had not received prior to the hearing) and she was unable to articulate or quantify her ownership in either the land or the property beyond a one-third or one-quarter share (which the Tribunal also notes is inconsistent with the delegate’s decision record that states that the applicant said the property and land was distributed equally among her, her sister and her brother). The applicant was also unable to detail the value of the income derived from her share of the ownership of the land. Given the claims resulting from this property, land and income distribution, the Tribunal expects that the applicant would be able to provide the Tribunal with greater detail regarding the applicant’s shareholding.
·The Tribunal notes that the applicant provided documents titled “Legal Notice”, “Register Mutation” and “Transfer of Property” the day after the Tribunal hearing. However, these documents are dated [in] October, [in] July 2016 and [in] June 2016 respectively and the “Register Mutation” and “Transfer of Property” are dated with a certification stamp on [a date in] November 2016. The applicant was interviewed by the department on 24 November 2016 and was provided time following the hearing to produce these documents but they were not received by the department prior to decision and they do not appear on the department file following decision. Given the concerns outlined above in relation to the credibility of the applicant’s claim and country information regarding document fraud in India, the Tribunal places no weight on these documents.
·The applicant told the Tribunal that her mother and sister were attacked by her brother and she provided photos, an FIR dated [in] December 2016 and medico legal reports as evidence of the attack [in] December 2016. The applicant also told the Tribunal that this attack was “unexpected”. However, the applicant’s witness told the Tribunal that the applicant’s mother and sister were attacked on two prior occasions when she had visited India and that both of these attacks were prior to the applicant’s interview with the department in relation to her protection visa application in November 2016. The applicant did not tell the department or the Tribunal about either of these earlier attacks and the Tribunal does not accept the applicant’s explanation for this inconsistency that she was unaware of these incidents and her mother, sister and her witness kept this information from her until the Tribunal hearing due to her claimed stress and/or depression. As set out below, in the absence of any medical evidence, the Tribunal is not satisfied that the applicant suffers from any medical condition.
·The applicant told the Tribunal that her brother had not threatened her but her mother and sister told her that she should not come back to India because her brother had attacked them and he could do the same to her. The Tribunal finds this account implausible for two reasons. Firstly, the applicant’s mother and sister advised the applicant not to return to India on the basis that they were attacked on [a date in] December 2016 yet the applicant raised the fear for her life during her interview with the delegate on 24 November 2016, more than one month prior to the attack. Secondly, if the applicant’s mother and sister provided this advice to the applicant following the attack [in] December 2016, it does not make sense that they did not similarly advise the applicant following two earlier attacks in November. The Tribunal finds it implausible that the applicant’s mother, sister and witness withheld information from her that could be important to consideration of her protection visa application when, according to the applicant, they were the ones advising her not to return to India.
·The Tribunal also notes that it would appear that the applicant’s mother and sister did not mention any previous attacks to the police given there is no reference to two earlier attacks in the FIR document provided by the applicant which reported the [December] 2016 attack. The FIR document is not on any official letterhead and in light of the Tribunal’s concerns outlined above regarding the credibility of the claim that the applicant’s mother and sister have been attacked as well as country information regarding the prevalence of document fraud, the Tribunal finds the FIR document dated [in] December 2016 to be fraudulent.
·In addition, the Tribunal also finds it implausible that the applicant, when given the opportunity to invite any witness she thought relevant to the Tribunal hearing, did not discuss with her witness what she intended on telling the Tribunal. On this basis, the Tribunal does not accept that the applicant’s mother or sister have ever been attacked by the applicant’s brother due to a property dispute. In addition to the Tribunal’s finding that the FIR document is fraudulent and given the Tribunal does not accept that the applicant’s mother and sister were attacked by the applicant’s brother the Tribunal does not place any weight on the photos of the applicant’s mother and sister (showing bruises) or the medico-legal report for [the applicant’s sister] which the applicant claims relates to the attack because there is no corroborative evidence that either the photos or the medic legal report relate to any attack.
Again, when these factors are considered together, the Tribunal finds the applicant’s claims in relation to her fear regarding a property dispute with her brother to be completely lacking in credibility. Accordingly, the Tribunal is not satisfied that the applicant is a part-owner of any house or land in India and finds that the applicant has not been threatened by her brother or anyone else regarding any land or property. In addition, the Tribunal does not accept that the applicant’s mother or sister have been attacked by the applicant’s brother over any property dispute. It follows that the Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm in India on account of any property dispute.
The Tribunal notes the applicant’s claim that she suffers from stress and depression and she was unable to remember details in the relatively recent past due to stress. She also claimed that this is also the reason why her mother, sister and her witness did not tell her about two previous attacks by her brother on her mother and sister. Following the Tribunal hearing, the applicant provided a statement from [Psychologist 1], dated [in] February 2016 relating to the nature of the applicant’s relationship with her husband. The Tribunal notes that [Psychologist 1] states that the applicant and her husband requested the “support letter with comments on the nature of their relationship” and that “both [the applicant’s husband] and [the applicant] presented with current significant distress” which was attributed to [the applicant’s] visa situation and their pending physical separation. The Tribunal also notes that [Psychologist 1] stated that “[the applicant’s husband] has also mentioned their facing difficulties from his family accepting [the applicant] due to differences in culture and religion” but [Psychologist 1] makes no reference to any reciprocal concern for [the applicant] in relation to any non-acceptance of her husband.
While the Tribunal accepts that the applicant was distressed about her visa situation more than one year ago following her partner visa refusal, the applicant did not provide the Tribunal with any evidence to support her claim of depression and stress or that she suffers any medical condition that compromised her evidence to the department or the Tribunal. In addition, the applicant told the Tribunal that it is one or one and a half years since she saw a counsellor and she is not on any medication. The applicant also told the Tribunal at the start of the Tribunal hearing that she was not aware of anything that would impact her ability to give evidence and answer the Tribunal’s questions. In her response to the Tribunal’s invitation to a hearing dated 5 April 2017, the applicant also answered ‘no’ to the question of whether there was any issue that may affect her ability take part in the hearing (including health problem or disability). On this basis, the Tribunal does not accept that the applicant suffers from any condition that compromised her evidence to the Tribunal. As outlined above, the Tribunal does not accept that the applicant’s mother, sister and witness did not tell the applicant information relating to attacks on her sister and mother due to the applicant’s stress.
The Tribunal also notes the [Police] witness statement dated [in] July 2016 provided by the applicant following the Tribunal hearing which the applicant relies on as further evidence of her stress. However, as the document is unsworn and unsigned, the Tribunal places no weight on this document.
Cumulative assessment
Considering the applicant’s individual circumstances and country information on a cumulative basis, the Tribunal finds that her fear of persecution is not well-founded as required by s.5J of the Act and therefore the applicant 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 that she 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 3133

15 May 2017

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Immigration

Administrative Law

Statutory Interpretation

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