1700591 (Refugee)

1700591 (Refugee) [2020] AATA 2790 (19 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1700591
COUNTRY OF REFERENCE:                   India
MEMBER:Nathan Goetz
DATE:19 June 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 June 2020 at 9:30am
CATCHWORDS
REFUGEE – protection visa – India – divorced male – threats from wife’s family – inconsistent oral evidence – cancellation of student visa – claims manufactured to achieve migration outcome – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 36, 65
Migration Regulations 1994, r 1.12; Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a citizen of India and arrived in Australia [in] February 2014 as a dependent on his wife’ student visa.
On 30 October 2015 the applicant applied for a protection visa. He participated in a delegate interview on 8 December 2016. On 19 December 2016 the delegate refused to grant the applicant a protection visa.
On 11 January 2017 the applicant applied to the Tribunal for a review of the refusal decision.
On 15 June 2020 the applicant appeared by telephone at a Tribunal hearing. The applicant spoke to the Tribunal from his home in [suburb], New South Wales and told the Tribunal that he was able to give his evidence in private.
The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages who appeared by telephone. The applicant was represented for the review application by registered migration agent [named], but [the agent] did not attend the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is [an age]-year-old male who was born in [a named town], in the Punjab state in India.
In his protection visa application form, he wrote that he was seeking Australia’s protection so he did not have to return to India.
When asked why he left India, the applicant referred the reader to a written statement.
The statement is reproduced here, with slight changes for easier comprehension:
I came to Australia [in] February 2014 along with mu wife who was enrolled to study in Brisbane. She was enrolled in a [course] at [a college]. This was to be followed by a [related course] at [a named education provider]. My wife was very happy that she had been given an opportunity to study in a first world country which would help her get a good job in India. I was happy to accompany and support her in her dreams. We were enjoying this new and beautiful country.
While she started her studies, I started looking for work in Brisbane. I tried very hard to but could not get a job. My wife was able to get a job after a few weeks. I told her how bad I left that I was not able to help her in any way. However, she was fine with it. I started feeling like I was living off my wife’s money. The society I come from is highly male dominated. It is a husband’s responsibility to ear money and look after a wife and children. Being dependent on my wife continued to disturb me.
I rang a couple of friends who were in Sydney. They suggested that I should come to Sydney as there are more job opportunities there. I talked about moving to Sydney with my wife, but she would not move there. I told her that if she cannot move to Sydney, I would go to Sydney on my own and slowly we would work out a way of moving in together in one place. My wife did not like that idea. We had a very intense argument about it. The issue slowly became a bone of contention between us. We had a heated argument almost every day. There was no peace at home. Finally, one day I moved to Sydney without telling her. She was really upset about my decision.
On arriving in Sydney, I found a job after a few days which made me feel much better. Being a husband, I was not earning money and not living off my wife’s wages. We used to be in touch over the phone, but mostly the conversation ended on a bitter note. These daily arguments increased the emotional distance between us. This also led to further differences on many other issues. We started to look at each other’s vices rather than virtues. Although we were married, we behaved like complete strangers. Our relationship reached its lowest point. We were in a relationship just for the sake of a relationship. There was no emotional or physical intimacy between us. When we could not longer bear it, we decided to lodge an application for divorce [in] August 2015.
During this period, our parents and mutual friends tried to bring us together, but this was in vain. My parents-in-law started blaming me for all the troubles. They told me that as I was the one who deserted their daughter in a foreign land. Divorced girls are considered a burden on their parents and a stigma on the family name, especially in rural Punjab.
My wife’s family started to pressure me to withdraw the divorce proceedings and reconcile with my wife. I was not ready to live in a dead relationship due to threats because I am not that type of person. When I did not relevant, my father-in-law and brother-in-law threatened me. They said that I had ruined my wife’s life and brought a bad name to their family. They said I should not think of coming back to India if I wanted to remain alive. They told me that they were helpless given that I was in Australia, but once I landed in India, my days would be numbered. I would be a dead man walking.
I told my parents that I would come back and face these people, but my parents advised that my father-in-law was serious about this and would harm me if I returned to India. My brother-in-law called me a few times and threatened to kill me. They are well connected people and will leave no stone unturned to kill me if I return to India.
The applicant’s protection visa form confirmed that he had no been harmed in India (Question 92). He believed that if he returned to India, he would face serious harm, noting that his father-in-law had threatened him. His father-in-law had made this a prestige issue and will use any steps to eliminate him (Question 95). The applicant noted that although there are laws to protect him in India, it is common knowledge that the legal system and law enforcement agencies in India are very corrupt. The applicant believed that his life would be at risk if he returned to India (Question 96). The applicant wrote that it would not be possible for him to relocate to another part of India without any support network (Question 97).
The applicant participated in an interview with the delegate. In summary, he gave the following evidence relevant to the Tribunal’s findings:
The applicant found out about protection visas on 10 August 2015 when he went to see his lawyer about separating from his wife.
The applicant lived for about three or four weeks in Brisbane but could not find employment, so he went to Sydney to seek employment. His wife’s college had a branch in Sydney and the applicant thought about his wife transferring to the Sydney branch but was told that his wife’s visa may be cancelled if she did so.
The applicant’s wife blamed the divorce on the applicant when she told her family. She wanted to make the applicant responsible.
The applicant’s wife’s family said to his parents that because the applicant ruined their daughter’s life, they would kill him. The applicant said that his wife’s parents were nice to him in India, but they changed when he was in Australia.
The applicant’s wife’s family contacted his family over the phone but also visited the applicant’s family home on many occasions.
FINDINGS AND REASONS
The issue in this case is whether the applicant is owed protection obligations because he is a refugee, or a person who meets the complementary protection criteria, or a person who is a member of the same family unit of either such a person.
The Tribunal is satisfied that the applicant is a citizen of India. He has not claimed citizenship of any other country. He has been issued a passport for India and the Tribunal is satisfied that this is evidence of his citizenship. Therefore, the country of reference for this protection application is India.
The applicant detailed in his protection application and delegate interview that he was married to [Ms A] and that they are divorced. The Tribunal is satisfied that the applicant and [Ms A] were married [in] March 2013 at [a location], in the Punjab state in India. The Tribunal is satisfied that this was an arranged marriage as the applicant claimed to the delegate, and both the applicant and [Ms A’s] parents were supportive of that marriage. The Tribunal notes the applicant provided an English translation of his marriage certificate with his protection visa application form.
The Tribunal is satisfied that applicant and [Ms A] are now divorced. As part of his protection visa application form, the applicant provided a copy of an affidavit that he and his wife submitted through his wife’s lawyers to the Federal Circuit Court of Australia in File [number] of 2015. The applicant also provided to the delegate a letter from his wife’s lawyers dated 6 September 2015 which referred to those documents. Although no certificate of divorce, or dissolution of marriage order has been received by the Tribunal, the applicant did respond to the Tribunal’s request for a copy of such a certificate or order by forwarding to the Tribunal an email dated 2 November 2015 from his wife’s lawyers where they acknowledged receipt of the applicant’s signed affidavit and note that the court is likely to grant the divorce [in] November 2015. That email reads that [Ms A] planned to remarry [later in] November 2015. The Tribunal is aware that [Ms A] made a subsequent application for a [different] visa where another person was noted as her husband. The Tribunal is satisfied that [Ms A] would not have been able to marry this other person if she was not divorced from the applicant. Accordingly, the Tribunal is satisfied that the applicant and [Ms A] are divorced.
That being determined, the Tribunal now turns its mind to the question of whether the applicant is credible about his claimed fear of harm in India from [Ms A’s] family due to the fact he and his wife are divorced. As noted to the applicant at the Tribunal hearing, the Tribunal looked at the protection visa application afresh, and was not bound by any of the findings of the delegate.
Ultimately, the Tribunal has determined that [Ms A’s] family have not threatened the applicant, nor the applicant’s family in India. The Tribunal is satisfied that the applicant manufactured these claims to achieve a migration outcome.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant was granted a student visa with a number of conditions. As noted, the applicant was granted a student visa on the basis that he was a member of the same family unit as his wife, who had been granted a student visa to engage in studies in Australia. The applicant told the Tribunal that he had been granted the student visa as a dependent on his wife’s visa, and the delegate decision record also makes it clear that this was the basis for the visa being granted. This meant that the applicant satisfied r.1.12(2)( a) for the grant of his dependent student visa, because he was the spouse of de facto partner of a visa applicant, as it was at the time of the visa grant.
So far as relevant to this matter, the applicant’s visa had condition 8516 attached to it. This condition requires that the holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In the case of the applicant, this mean that if the applicant was no longer a member of the same family unit as his wife, he would breach that condition and his student visa was would liable for cancellation either as a breach of that condition under s.116(1)(b). Alternatively, the applicant’s student visa may have been liable to cancellation under s.116(1)(a) because ‘a particular fact or circumstances upon which the visa was granted no longer existed: namely, the applicant being a member of the same family unit as his wife.
The applicant told the Tribunal that he and his wife separated after being in Australia for two or three months, around May or June 2014. The applicant told the Tribunal that he did not want the relationship to end, but after six months he realised that his wife did not want to stay with him. When asked why he did not return to India once he had separated from his wife, the applicant said he was hopeful that the relationship would get better and that he would be able to return to India with his wife when her student visa ended. The applicant repeated to the Tribunal a number of times that he and his wife’s intention coming to Australia was for her to complete her studies and then return to India when the student visas ceased.
The applicant told the Tribunal that he first realised he needed to claim protection after about eight on nine months in Australia. He started thinking about that and then in the tenth month decided he would apply for protection. The applicant told the Tribunal that he thought he had no other option because he was not able to go to India. He had no option to return to India because when he would ring home his parents would tell him not to return. The applicant’s wife’s family started torturing his family. His family told him that if he returned to India, his wife’s family would kill him.
When asked whether there was a particular event that made him realise he needed to claim protection, the applicant said that there was pressure on his brain when he considered whether he should stay in Australia or return to India. He told the Tribunal that he could not go back to India because his wife’s family were saying one thing or another. His wife’s brother would be bossy at other people and people feared him. His parents said that he would be safer in Australia.
Given that the applicant and his wife had student visas that were valid until March 2017, the Tribunal asked the applicant why he lodged a protection visa in October 2015. He told the Tribunal that he started finding out that their relationship was not working and thought he should file his own visa. He confirmed that he realised he could not return to India after he had been in Australia for 6 months, because he was being told by his wife’s family that he spoiled their daughter and his life was not going to be spared, and he did not want to face death.
Given that the applicant told the Tribunal that he realised he could not return to India six months after he arrived in Australia, the Tribunal queried why the applicant would delay his protection visa application until October 2015. The Tribunal struggled with the idea that the applicant would wait 14 months to make his protection visa applicantion. The applicant said that his wife’s family did not have a visa to visit Australia and he could remain here. He told the Tribunal that he was trying to spend that time thinking about the relationship and hoping that it would improve.
The Tribunal asked the applicant when his wife’s family made their first threat against him. He told the Tribunal that that it was about nine months after his arrival. He told the Tribunal that her brother made a threat to him on [his phone]. The brother rang him and said he would spoil his life and ruin the applicant. The applicant said that he asked for some time to fix the relationship. The brother told the applicant that there had not been an improvement in the relationship despite the applicant trying to fix the relationship for six months. The phone call lasted about six or seven minutes and the applicant was called bad names. The brother said there is enmity now and the brother would not let the applicant live after three or four days in India. The applicant’s brother threatened revenge. The Tribunal asked what his wife’s family wanted him to do and the applicant said that they did not ask him for anything: They said he had spoiled her life. The Tribunal asked whether his wife’s family wanted him and his wife to reconcile. The applicant said he was trying to tell his wife that they could reconcile, but she would tell her parents that that the applicant did not want to do so, which is why her family thought that the marriage ending was the applicant’s fault. The applicant would talk to his wife’s mother about reconciliation, but her father and brother would not listen to him. He told her family he wanted to reconcile but he did not know what happened. He told the Tribunal that the last conversation he had with his wife’s brother and father was in December 2014, but he spoke to his wife’s mother in May 2015. Apart from the bother saying that he would ruin the applicant’s life, he did not say anything else. When asked what the brother meant by saying he would ruin the applicant’s life, the applicant said that it meant that everything was the applicant’s fault and he had ruined his wife’s life.

Apart from discussions with his wife’s father and brother, the applicant said that he feared harm because her father would say to the applicant’s father that that the month the applicant returned to India would be the last month to be alive. The wife’s father made this threat in October 2014. The applicant’s father told him this in October or November 2014. When the applicant was told this by his father, he was scared, and his hands started shaking. The applicant told the Tribunal that his wife’s father met his father two months ago and gave the same threat.
Noting that the applicant became aware of this threat in either October or November 2014, the Tribunal asked why the applicant did not lodge a protection visa at that time. The applicant said that he thought that things would be fixed in Australia with his wife. The applicant said that if things had been fixed with his wife, her family would no longer want to hurt him. The applicant said that he realised by September 2015 he realised that his wife was not coming back into his life, and that is why he lodged a protection visa application form.
The Tribunal is satisfied that the applicant and his wife separated soon after their arrival in Australia but remained married until they were granted a divorce around November 2015. However, the Tribunal is satisfied that when the applicant became aware that his wife was initiating divorce proceedings in the lawyer’s letter of September 2015, he sought advice about how he could remain in Australia, as he had initially planned to remain here for the duration of his dependent student visa, which was to cease in March 2017. The Tribunal is not satisfied that the applicant’s lodged a protection visa because he feared harm from his wife’s family in India, but because he wished to remain in Australia until at least March 2017 as he had planned. The Tribunal is satisfied that even if the applicant had initially intended to return to India at the conclusion of his dependent student visa, the opportunity to obtain permanent residency in Australia through the lodgement of a protection visa acted as an incentive for him not to do so. The Tribunal comes to this conclusion for the following reasons.
First, the applicant’s written statement is, in the Tribunal’s view, considerably different to the oral evidence that the applicant gave to the Tribunal hearing. The written statement suggests that the genesis of the animosity from the applicant’s wife’s family stemmed from the applicant separating from his wife, the family applying pressure on the applicant to withdraw the divorce proceedings and reconcile with their daughter, and the applicant’s refusal to do so as he ‘was not ready to live in a dead relationship due to somebody’s threats. I am just not that type of person. When I did not relent, my father in law and brother in law threatened me’ resulted in threats of harm to the applicant. This was vastly different to the applicant’s oral evidence, where he repeated to the Tribunal that he wished to reconcile with his wife, and attempted on numerous occasions to convey that to the applicant’s father and brother (and did convey this to his wife’s mother). The genesis of the threats, according to the applicant’s oral evidence at the Tribunal, was due to the fact that the applicant and his wife had separated, not his refusal to reconcile. While the Tribunal appreciates that relationship breakdowns can be messy and complex, it is reasonable to expect that the applicant would provide a consistent narrative about why his wife’s family sought to harm him. If the applicant’s oral evidence to the Tribunal hearing was to be believed, his wife’s family had not attempted to persuade the applicant to withdraw the divorce proceedings, or reconcile with his wife, and the applicant actually wanted to reconcile the relationship. If the applicant’s written statement was to be believed, the applicant’s wife’s family wanted reconciliation, and it was the applicant who did not. To the Tribunal’s way of thinking, these are fundamentally different narratives.
The written statement also suggests that the applicant did not experience any difficulty with his wife’s family until after divorce proceedings had commenced around September 2015. It was when the ‘applicant did not relent,’ that his ‘father in-law and brother in-law threatened me’. The statement also details that when the applicant and his wife decided to lodge an application for divorce [in] August 2015, it was ‘during this period that our parents tried to bring us together…’ It was as a result of the applicant refusing to reconcile with his wife that threats commenced. This was vastly different to the oral evidence provided by the applicant at the Tribunal hearing, where the applicant said that the he was receiving threats in October or November 2014 as a result of the separation.
The Tribunal put to the applicant that his statement suggests that he did not have any problems with his wife’s family prior to lodging the application for divorce, and noted the basis for the threats being that the applicant refused to withdraw the divorce proceedings or reconcile with his wife. Given that this was different from the oral evidence, the Tribunal asked the applicant to respond to this observation. The applicant asked the Tribunal whether he had written that his life was in danger and the Tribunal confirmed that he had but indicated that that was not the issue that troubled the Tribunal. The Tribunal asked the applicant to explain the inconsistency between what was written in his statement and what he told the Tribunal. The applicant responded that he was stressed and under pressure, but that if his life was not in danger, he would be ready to return to India.
The Tribunal was also concerned by the fact that the applicant did not detail in his written statement the threat made by his wife’s father to the applicant’s father in October 2014, remembering that the applicant said his father told him about this in either October or November 2014. This was curious to the Tribunal, because the applicant told the Tribunal that he was scared and shaking as a result of the threat. To the Tribunal’s way of thinking, such an incident would have been detailed in the applicant’s written statement if it were true. The applicant responded to the Tribunal’s concern by saying that he was very stressed and went into a depression. He was not sure what to write and what not to write, and that a friend helped him with his application. The Tribunal is not satisfied that the failure to detail this threat that he became aware of in October or November 2014 could be attributed to the applicant being stressed, depressed or due to the use of another person assisting in the preparation of the statement. The statement is able to provide a narrative of the history of the couple’s relationship, the reason for their separation, the lodging of the divorce application, and the fact that the wife’s family ‘threatened me’ and ‘told me that I should not think of coming back to India if I want to stay alive’. The statement makes clear that the applicant received those threats, and not the applicant’s father. Bearing in mind the applicant’s oral evidence that the wife’s father made those threats to the applicant’s father when they were at the same place getting groceries, the Tribunal is satisfied that if such a thing occurred, the applicant would have included it in his written statement.
The Tribunal also put to the applicant that apart from telling the Tribunal hearing that his brother in-law would ‘ruin his life’ and ‘ruin him all together’, the applicant had not really described any threats that had been made to him in his oral evidence. To the Tribunal’s way of thinking, a former spouse’s family member saying ‘I’ll ruin you’ did not, without more detail, constitute a serious threat of physical harm, but could be considered as an expression that may accompany an acrimonious breakup. While unpleasant and not something that a civilised society should tolerate, it did not suggest to the Tribunal a threat to inflict physical harm. In response, the applicant said that he had not been back to India for the last six years and he did not go back because he was fearful. The Tribunal understands the applicant to be saying that he considered the ‘I’ll ruin you’ to be a threat of real harm. The Tribunal does not accept that this is the case. The Tribunal notes that the written statement details that the wife’s brother had called the applicant a few times and ‘threatened to kill me’. Given that the applicant had used such an expression in his written application, it was curious to the Tribunal that the applicant would not say that his brother had made such a threat, but instead told the Tribunal that he would ‘ruin his life and ‘ruin him all together’.
The Tribunal noted to the applicant that during the Tribunal hearing, he said that he wanted to lodge his own visa application. The Tribunal noted to the applicant that as he lodged his protection visa pending the divorce being granted, this suggested to the Tribunal that the applicant suspected his student visa would be cancelled when he was no longer the applicant’s husband, and that he lodged the protection visa application to remain in Australia not because he had a fear of harm in India, but because he wanted to regularise his migration status and remain in Australia. The applicant responded that he had given the Tribunal his oral evidence and he would be happy to return to India so long as the Tribunal guaranteed his safety.
The Tribunal has considered this response and understands the applicant to be reiterating that he has a fear of returning to India. However, the timing of his protection visa application, despite the applicant telling the Tribunal that he became fearful of returning to India after being in Australia for six months, when coupled with the other concerns that the Tribunal has discussed in this decision, leaves the Tribunal to conclude that the applicant has manufactured the claimed threats from his wife’s family in India. The Tribunal is satisfied that when the applicant suspected his student visa would be cancelled because he was soon to be divorced from his wife, he lodged a protection visa application and fabricated the threats made to him and his family in the hope that the protection visa would be granted. It is for this reason that there are inconsistencies between the written statement and oral evidence about the timing of the threats, the genesis of the animosity towards the applicant by his wife’s family, the failure to detail in the written statement the threats received through the applicant’s father, and the failure to claim at the hearing that the wife’s brother threatened to kill him. The Tribunal is satisfied that these issues are attributed to the fact that the applicant’s protection claims have been fabricated.
CONCLUSION
The Tribunal is not satisfied that the applicant is a witness of truth about the claimed animosity from his wife’s family, the narrative of how the animosity developed, the claimed threats received from his wife’s family to his family, or the claimed reason why the applicant has not returned to India. The Tribunal is satisfied that the applicant fabricated these claims in order to lodge a protection visa application when he suspected that his dependent student visa would be cancelled because he would not longer be his wife’s spouse.
It follows that the Tribunal is not satisfied that the applicant would be harmed in any way by his wife’s family upon his return to India. The Tribunal is not satisfied that his wife’s family had ever expressed a desire to harm the applicant and is not satisfied that they would harm the applicant upon his return to India.
Refugee
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
The Tribunal is not satisfied that there is a real chance of serious harm to the applicant in India on account of his race, religion, nationality, membership of a particular social group or political opinion.
Complementary protection
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). For the same reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to India, there is a real risk the applicant will suffer ‘significant harm’ as defined in the Act.
Member of the same family unit
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.
Nathan Goetz
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 2790

19 June 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction