1701738 (Refugee)

[2020] AATA 2008

1701738 (Refugee) [2020] AATA 2008 (20 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1701738

COUNTRY OF REFERENCE:                   India

MEMBER:Tamara Hamilton-Noy

DATE:20 May 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 20 May 2020 at 12:21pm

CATCHWORDS
REFUGEE – protection visa – India – political opinion – Tamil nationalism – Naam Tamilar party – religion – Jehovah’s Witnesses – credibility concerns – inconsistent evidence – travel history and other visa applications – level of involvement in political parties – genuineness of intention to convert – particular social group – women in India – gender-based violence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 20 January 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of India, applied for the visas on 21 June 2016. The delegate refused to grant the visas on the basis that the applicants are not persons to whom Australia owes protection obligations.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. 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

9. The issue in this case is whether the applicants meet any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether they are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are a member of the same family unit of such a person.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Country of nationality

10. The applicants all travelled to Australia on Indian passports and have at all times maintained that they are citizens of India. The Tribunal finds that the applicants are Indian citizens and has assessed their claims against India as their country of nationality.

    Claims for protection

11. The applicants are from Chennai, Tamil Nadu.  They arrived in Australia [in] June 2016 on a [temporary] visa and applied for protection on 21 June 2016.

12. In his written protection application, the applicant father stated that he had left India due to his involvement in Tamil causes, having joined the Naam Tamilar party in November 2015 before the elections and having organised several political meetings including a procession about the Tamils accused in the Rajiv murder case.  Due to his radical views, the police at the insistence of the government had threatened to file cases against him and warned him not to espouse the Tamil cause.  The applicant father stated that if he returns to India he fears being apprehended, tortured and possibly killed by police.  As to whether he had experienced harm in India, he stated he was ‘apprehended, detained, interrogated without proper documents’ on a few occasions by police and was warned on several occasions for promoting Tamil causes.  The police had also threatened his wife and daughter.  He stated that he had sought help from the police but was unsuccessful as they were acting as servants of the government. 

13. The applicant mother and applicant daughter did not raise separate claims in their protection applications.

14. The applicant father attended a Department hearing on 13 January 2017.  At the interview the applicant father stated that his wife had written the protection application for him.  He had come to Australia because at a political meeting he had spoken in favour of the LTTE and police had created a problem for him.  When asked to clarify what action the Tamil Nadu police had taken against him before he left India, he stated that he was not arrested by the police.  When asked whether he had been detained, he stated ‘they warned me, cautioned me, not arrested’, and that the police had visited his home and warned him not to get involved.  He clarified with the Department delegate that he had never been arrested, detained or locked up by the police.

15. The applicant father told the delegate during the Department interview that he had joined the Naam Tamilar Party in November 2015 and that he did not have any evidence of having joined the party.  As to the focus of the party, he stated that they want to protest peacefully to achieve Tamil Elam, that it is about Tamils in Sri Lanka and that this did not involve Tamils in Tamil Nadu.  As to why he had not joined the party prior to November 2015 he said that that was the period when the election was held, and prior to that, circumstances were not conducive to him joining a party.  Since being in Australia he had not done anything to support Tamil causes.

16. The Department delegate asked the applicant father about his involvement in protests in India and he stated that he had taken part in protests in Tamil Nadu, and they were street protests on the road.  There were around 10 protests, all after November 2015, and were in Chennai or in the outskirts of Chennai.  There was no media coverage because this is a smaller party and he has no evidence of having attended them.  When asked whether he had organised the protests, the applicant father stated he was ‘not the leader, but three to four sub-leaders are very familiar with me’; and that since he joined very recently, he hadn’t taken a leader position.

17. The Department delegate sought clarification that the applicant father had never been interrogated or tortured by police and the applicant father said they had located him, questioned him and cautioned him.  The Department delegate sought clarification that the applicant father had earlier stated he had not been interrogated, and the applicant father stated that they he was not questioned or located, but they asked him not to take part in future.  The Department delegate observed that the applicant father had never been in police custody and the applicant father stated in response that his daughter’s life is very important to him and when police warned him, he got scared and came to Australia.  He confirmed he was never charged or convicted.  When asked whether he was the subject of a criminal investigation he stated, ‘they would have’.  The delegate asked about the applicant father’s claims to have been tortured and he said that the police visited his home at midnight and called him to come out and this amounted to torture.  As to why he could not relocate within India he stated that he has been in Chennai since his birth and only knows Tamil.  As to why he could not reside in Nepal, he stated that he doesn’t know the language.

18. On 8 August 2019 the Tribunal wrote to the applicants about an upcoming Tribunal hearing.  The Tribunal granted the applicants an adjournment from the original hearing date, on the basis of them having a newly appointed representative.

19. On 10 October 2019 the applicants provided to the Tribunal a statutory declaration prepared by the applicant father reiterating his claims for protection based on his political activities in India, and also providing further information that had not been included in his written protection application, including that: he lived in [Country 1] from 2006 to 2013 as an unlawful non-citizen; he had applied for a [Country 2] visa which was refused in 2014; and he had applied for a [Country 3] visa which was refused in 2016.  In addition, the applicant father stated that after arriving in Sydney the applicant mother had commenced attending church and had then met a Jehovah’s Witness after moving to [City 1].  At the time of preparation of the statutory declaration, the applicant father stated that the family was in the process of converting to becoming Jehovah’s Witnesses and intended to start contributing to evangelical works.  The applicant father stated that he fears returning to India on the following bases:

    ·For reasons of his political opinion supporting Tamil nationalist ideologies;

    ·For reasons of his political opinion supporting NTK which is seen as a party challenging the structure of the Indian state;

    ·For reasons of his political opinion supporting the LTTE and the freedom struggles of Sri Lankan Tamils;

    ·For reasons of his political opinion against Dravidian parties and Tamil nationalist ideology as being perceived as anti-Dravidian;

    ·For reasons of his political opinion against parties which promote Hinduvita ideologies;

    ·For reasons of the family’s intention to move towards evangelical Christianity and promoting Jehovah’s Witnesses;

    ·For reasons of the family’s beliefs as Jehovah’s Witnesses, being perceived as people involved in conversion activities;

    ·For reasons of his activities exposing criminal gangs and their activities and connections with politicians. 

20. In submissions to the Tribunal prior to the hearing, the representative noted the following links between the applicant father’s various political claims:[1]

    We note that NTK was formed in 2009 to fight for the rights of Tamils not only in India but also in Sri Lanka.  We note that the Indian authorities including its powerful intelligence agencies such as RAW and CBI continue to view anyone who promotes Tamil nationalism or supporting the freedom struggle of Sri Lankan Tamils as secessionist who want to form a greater Tamilnadu.  NTK echoes the theme of Tamil Nadu for Tamils and advocates that Dravidian parties including DMK and ADMK work against the interest of Tamils.  NTK further advocates that the Dravidian parties are non-Tamils.  It promotes pure Tamil nationalism concept with Tamilnadu.  In addition to that the NTK openly advocates and supports Kashmiri freedom struggle.  Further, it also voices its opposition against Hinduvita and Hindu extremist ideologies.

    [1] Representative submissions 14 October 2019.

21. The applicant father further stated he feared his wife and daughter would become victims of sexual violence due to their gender.  As to practical difficulties in living in another area of India, the applicant father stated that: he does not speak Hindi or other languages; ‘I have properties and family relatives in Tamilnadu and may need to visit them’; due to evangelical works he will face harassment and intimidation; and due to the gender of his wife and daughter, they would face sexual harassment and assault. 

    The Tribunal hearing

22. The Tribunal hearing was conducted on 16 October 2019.  The applicants were represented at the hearing and the Tribunal spoke to each of the applicants separately during the hearing.

23. The applicant father stated to the Tribunal that he was born in Chennai and has not been known by any other names.  He departed India legally through the airport on a valid passport and did not have any issues with authorities when departing India.  The Tribunal asked about his statutory declaration referring to him having had two other passports and he stated these were both under his correct name; one was lost in [Country 1] and he reapplied in Chennai and lost it in Chennai. 

24. The applicant father stated that his family are all in Chennai, in the city and in the outskirt villages.  His father passed away in 2010 while the applicant father was in [Country 1] and his mother, [and siblings] are in Chennai.  His father had worked in a [specified] business, which was his own business working with local manufacturers and managing 30 people under him.  The [business] was running at a loss and after his father’s death it was shut down; it had been doing fine when trading inside India but they started thinking about [branching out] and ran into trouble and started making a loss.  His sisters do not work and he does not have any brothers.  He has no extended family apart from his mother-in-law and his wife has brothers and sisters all in villages around Chennai.

25. The applicant father stated he was raised as Hindu but his family were ‘not too religious’.  He attended private schooling up to Year [level] and then his last two years he attended a government school but failed Year [level].  He completed part of a [qualification] in [Discipline 1] in Chennai and then worked in [Occupation 1] under his father from 1993 onwards.  He lived with his parents until he left India, with his mother, [sister] and her husband.  The only property owned by his family in India is the house his mother is living in, in [location] in Chennai city. 

26. The applicant father stated that he travelled to [Country 4] for three days in 2015, on a holiday with friends.  He lived in [Country 1] from 2006 for nearly seven years, having travelled there on a tourist visa arranged by an agent who told him he could work and stay.  He stayed in [Country 1] illegally; he didn’t put a protection application in because he didn’t know about it.  His wife and daughter stayed in India while he was in [Country 1], living next to his wife’s mother’s house.  Her mother is still in the same house.  He left [Country 1] in 2013 as he couldn’t find a proper job and had difficulty getting a passport, was ‘being asked questions’ and was homesick.  When he returned to India in 2013 he lived next door to his mother-in-law’s house on the outskirts of Chennai. 

27. As to the written protection application form, the applicant father stated that his wife had filled in the form.  She only asked him questions about his sisters’ details and she filled the rest of the form in herself.  They did it in a rush and had no one to help them, so tried to do it the best they could.  All she told him about was his sisters, neighbours and the dates they were travelling.  He was in a political party and she knew that, because she had experienced the same herself while he was away.  The police would harass his wife and daughter after he joined the party in 2015.

28. The applicant father stated he can read and understand English with difficulty and he speaks Tamil.  He does not speak any other languages.  As to his statutory declaration referring to mistakes in the original protection application form, he stated that he had mentioned his father passed away and that he had been in [Country 1] from 2006 to 2013 (which was not indicated in the protection application).  He had also not mentioned that he had applied for a [Country 3] tourist visa in 2016, where he had been rejected for insufficient statements and evidence.  He applied for a tourist visa for Australia in mid-2016 through an agent.

29. The Tribunal asked the applicant father about his political activities in Tamil Nadu and he stated that he had been active from November 2015.  He was thinking along similar lines to what the NTK party represented, and started following the party and their ideas from 2010.  He described the NTK party’s ideas as being to unite Tamils all over the world and that the government should be formed by Tamils; that there are 134 countries with Tamil speaking people; and that he was attracted by what was happening in Sri Lanka and his party related to that.  As to whether the whole family shared these ideas, he stated it was just him, although his wife knew about his activities and did not object and supported him. 

30. The Tribunal asked the applicant father about activities he had been involved in with the party and he stated the first one he was involved in was for the liberation of Tamils in Sri Lanka where a lot of innocent people had been put in jail after the Ghandi assassination.  Secondly, he protested about the government banning Jallikattu.  And thirdly about the exploitation of nature, dredging soil from riverbanks and chopping trees in the forest.  He was involved through protests, as a participant and only a participant.

31. The Tribunal asked for more details about the protests the applicant father had been involved in and he stated that after the Ghandi assassination 26 people had been arrested and four people were still in jail after 28 years.  He was involved in a ‘non-violent way’ attending protests.  As to how many protests, he stated he had attended 25 to 30 over a seven-month period, in Chennai.  There was not a lot of publicity as it is only a small party.  The Tribunal observed that estimates put membership at 200,000 to 300,000 and asked, given this, how big the protests were and the applicant father stated each time there were 400 to 500 people.  He was part of the crowd as a participant at these protests.

1. As to the protests about Jallikattu, the applicant father stated that he had attended a protest in 2015 in Madurai, where there were about 1,000 people attending.  He was a participant in the protest. 

2. As to the environmental protests and why a Tamil party would be involved in these, the applicant father stated that this is one of the main ideas of their party.  There were five protests in Chennai in 2016. 

3. The Tribunal asked the applicant father about whether he had taken part in any protests prior to 2015 and he stated that in [Country 1] a lot of protests were happening.  The Tribunal asked whether he had been a participant only and he stated yes, but he was very agitated and so put a lot of effort into it.  The Tribunal asked about the applicant father’s written statement that he had ‘helped them organise the party’ and he stated that when organising meetings they built a stage and he helped them build the stage.  In response to further questions by the Tribunal he stated that he was never identified in the media as being associated with the party.  As to whether he was a participant in all of the protests he stated that he was in the forefront for everything; most people just come and take part and leave but he was there from the beginning to the end.

4. The Tribunal noted that there had been 233 NTK candidates announced in 2016 before the applicant father left India and asked what he could tell the Tribunal about the NTK candidates.  He stated that these are people really involved in the Tamil party.  The Tribunal asked about any high profile candidates and, after a prolonged pause, the applicant father said they were ‘[Mr A]’, ‘[Mr B]’ and ‘[Mr C]’.  The Tribunal asked about the party’s support for candidates with disabilities and the applicant again stated [Mr C] is a person representing the party.  The Tribunal queried whether he has a disability and the applicant stated no.  The Tribunal asked again about the party’s support for candidates with disabilities and the applicant father said he knows the party supported disabled people.  As to female candidates for the party, the applicant father stated he knows they were accepted.  As to what female candidates the party had announced, the applicant stated he doesn’t remember.

5. The Tribunal asked whether the applicant father had supported the party in any other ways and he stated he had canvassed to make people join the party.  The Tribunal asked about any direct support for the LTTE and the applicant father stated this was only through protests, in Sydney for the Sri Lankan Tamils.  As to whether he had supported in any other ways in India he stated no.  As to whether he has supported any party activities while in Australia he stated he attended Martyrs Day in Sydney on 27 November 2017.  He was then in [City 2] and [City 1] where there were no ‘contacts’.   He had also attended a genocide protest [in] May 2017 in [Suburb 1].  As to his intention if he returns to India, he stated his goal is to support the party in saying Tamils should rule Tamil Nadu.  He is still in contact with people in India who support the party.

6. The Tribunal asked whether the applicant father had had contact with authorities over his political activities in India.  He stated that the police came when he was participating in protests and threatened him and said he had no right to be here, and started ‘misbehaving’ with his family.  They came to his home and told him he was not allowed to participate and his party had extremist attitudes, while his wife and daughter were there.  They came to the house ‘many times’, usually when he was not home and at night time, and threatened his wife and daughter.  A couple of times they caught him by the collar.  They were thugs of the ruling party. 

7. The Tribunal asked how he could have been identified in a protest of 500 to 1,000 participants and the applicant father stated that even though he did not organise the protests he was in the front row.  As how they could have identified him from such a large group to know where to visit him at home, he stated that even though there were 500 to 1,000 people at the protests, he was in the front row where there were about 10 of them, and it was easy to ask who people were.  They said they would charge him and put him in jail.  The Tribunal asked whether the police had done anything other than threaten the applicant father and he stated in response that his daughter is growing up and a lot of political kidnappings happen.

8. The Tribunal asked about a document provided by the applicant father to the Tribunal and he stated it was a membership certificate for the party that is usually fabricated.  (The interpreter interpreted the document to be declaring the applicant father as a member of the party and including his phone number and address). 

9. As to whether there was anything else about his claims he wanted to add, the applicant father stated that from a very young age he was working for Tamils.  He is concerned that if he returns to India he will continue to do his work for the party and he feels his wife and daughter will be in real danger.  He left the country when they started threatening him and he doesn’t think they will stop the threats.

10. The Tribunal then asked the applicant father about his religious claims regarding conversion to a Jehovah’s Witness.  The applicant father stated he has still not converted, he is still undertaking Bible studies and attending church.  He has been attending Church each Sunday and Bible classes each Friday for the past two to three months, perhaps the first week of August or last week of July.  His wife has been believing in Jesus and studying the bible for the past 12 months.  The Jehovah’s Witnesses only convert the family as a whole.  Prior to attending the Jehovah’s Witness church his wife was attending a church in [Suburb 2] where she came across a Jehovah’s Witness who told her to study the Bible first and then to convert.

11. The Tribunal asked the applicant father what it was that attracted him to becoming a Jehovah’s Witness and he stated that when they were in [City 2] they had a bad time and his wife started reading the Bible and was feeling much better.  He likes the way they greeted people and welcomed people. 

12. The Tribunal asked the applicant father about the process of converting to a Jehovah’s Witness and he stated that they want them to learn the Bible first and then come to a meeting [in] November.  He clarified that if he returns to India he intends to continue with propaganda, handing out pamphlets and knocking on doors and that he may come across opposition and problems.  If he had to return to India he would return to Chennai because his family and family home are there.  The Tribunal observed that the Tribunal’s letter inviting the family to a hearing had been sent in the first week of August which appeared to coincide with the family’s decision to commence attending a Jehovah’s Witness church, and the applicant father stated in response that there was no connection between the two as his wife already believed in Christianity.

13. The Tribunal noted that it understood from a Jehovah’s Witness website that Jehovah’s Witnesses believe in being politically neutral, that they do not believe in serving in politics or the military, and they do not lobby, vote or participate in any action to change governments.  The Tribunal observed that the applicant father’s intention to practice as a Jehovah’s Witness was incompatible with his stated intention to continue his political activities if he returns to India and that because of this the Tribunal may have difficulty accepting he had a genuine intention to practice as a Jehovah’s Witness.  The applicant father stated in response that his religion comes first and the party ‘comes later’.  The Jehovah’s Witnesses are his first concern and the party comes after that.

14. The Tribunal asked about the applicant father’s written claims that he had travelled with family to [Country 5], [Country 6] and [Country 4] in 2015 and he stated yes, this was with family and he had forgotten it.

15. The Tribunal observed that the applicant father had given evidence to the Tribunal that he had participated in 25 to 30 protests in Chennai plus another five environmental protests, but he had told the Department in his interview with the delegate that he had participated in around ten protests in Chennai.  The applicant father stated in response that when they interviewed him at the Department they were asking him to make it short and he couldn’t say anything freely.  The Tribunal noted it had listened to the taped interview and that the applicant was not contained by the interviewer on the question of protests and the applicant father stated in response that ‘this is the correct number’.

16. The Tribunal asked why the applicant father had not raised before that he had canvassed for new members for the political party and he stated in response that at that time he couldn’t provide documents and didn’t have enough time to talk about it and he had also failed to mention Jallikattu.  The Tribunal observed that the applicant father in his interview with the delegate had talked extensively about the Tamil Nadu police but had not mentioned government thugs and he stated in response that he was not able to talk freely.  The ruling party, police and thugs are ‘all rolled into one’.

17. The Tribunal asked the applicant father about his written claims that he had been ‘apprehended, detained and interrogated’ and he stated in response that he was pulled by the collar and threatened.  As to how he was ‘detained’, he stated he was pulled by the collar outside of his house and his family were threatened at home when he was not there. 

18. The Tribunal asked the applicant father about his written submissions that he ‘may need to visit’ his family and properties in Chennai as reasons for not being able to live in another area of India and he stated that this is correct; his mother, sister and property are all there. 

19. The Tribunal noted that there was a treaty between India and Nepal giving the applicant father a right to enter and live in Nepal and asked why he could not live there.  The applicant father stated that Nepal is predominantly Hindu and if he goes there and ‘does the Tamil political thing’ they would attack him.  The Tribunal observed the applicant father had earlier given evidence that his political activities would take a backseat to his religious beliefs and he stated that even if it is not a political thing, if he is a Jehovah’s Witness he will knock on doors and would come to trouble there.  The Tribunal asked whether there are other areas of India the applicant father could reside other than Chennai and he stated that no matter where he goes, if he tries to follow Tamil ideals they will try to force them out.  If he goes back there is no security for himself, his wife or daughter and he is worried about his daughter.

20. The Tribunal spoke separately to the applicant mother and she stated she was born in Chennai and her family is in Chennai, a 75-minute motorbike ride away from her husband’s family.  Her family include her mother, [and number of siblings].  She does not have much extended family and only has her mother-in-law.  She has no family in Australia.

21. The applicant mother stated that she and the applicant father were married in 2001 and she was living with her husband from 2001 to 2006.  He then went to [Country 1].  His intention was to get settled but he had a lot of trouble.  She is not sure whether he applied for a protection visa there but he had a lot of difficulty getting a job.  During this time she lived near her mother’s house in Chennai.  Their daughter did not go to [Country 1] at all either.

22. The Tribunal asked the applicant mother about any other travel outside of India and she stated that she went to [Country 5], [Country 6] and [Country 4] during 2015 and 2016 and also went to [Country 7] once to visit her sister.  She had attended high school in Chennai and then studied an undergraduate course by correspondence in [Discipline 2].  After marriage she attempted [a qualification] for a year in Chennai.  She worked for 13 years in [Occupation 2] in various companies.  Since arriving in Australia, she had taken three months to find a job and then worked in various jobs [and] for a [specified] company. 

23. The applicant mother stated to the Tribunal that she had been raised as a Hindu.  She speaks Tamil and English, and a little bit of Telugu and Hindi.  She completed the family’s protection application as she worked in [Occupation 2] and was used to filling in forms.  She did discuss a few things on the form with her husband and a few words she asked the meaning of.  The Tribunal asked how she completed the information about her husband’s political activities and the applicant mother stated that she knew he has political connections but still had to ask a few things.

24. The Tribunal asked about the applicant father’s protests and the applicant mother stated that he was away from 2006 to 2013 and had a lot of friends with political connections and was a staunch believer.  He was mainly involved around the assassination and prisoners and their release and about Jallikattu.  The Tribunal asked how many protests the applicant father had attended and the applicant mother stated she knows he has been to a lot but can’t keep count; he was also involved in the dredging of land and Jallikattu and work rights and was actively involved between 2015 and 2016.  The Tribunal asked about the written claims prepared by the applicant mother that the applicant father had been ‘apprehended, detained and interrogated’ and the applicant mother stated she only knows what he has told her.  A couple of people came and wanted to talk and took her husband away in a vehicle.  Most of the time they came casually and took him out as though they wanted to talk to him.  This happened at least six to seven times, for two to three hours, and he wouldn’t pick up his phone during this time.  Every time he went, she was worried.  The Tribunal asked the applicant mother whether she had observed any physical injuries on her husband when he was returned and she stated there were no visible injuries but he was handled roughly; he wouldn’t go into details but he was handled roughly.  The people who had taken him away looked like thugs and it was thugs that threatened her.  The Tribunal asked whether she had had contact with police and the applicant mother stated that even the police ask why he goes to things like this, especially when her husband is not there.  The applicant mother stated that this happened four to five times and after that she didn’t feel safe.

25. The Tribunal asked the applicant mother what political activities she believes her husband will be involved in if he returns to India and she stated that she understands her husband’s convictions and they were getting into trouble because of that.

26. The Tribunal asked about the applicant mother’s claims regarding her conversion to Christianity and she stated that after coming to Australia she met a girl in a beauty parlour who asked her whether she had heard about the church and the Bible.  She was Hindu and was attending temple and the girl asked her to come to church.  The applicant mother stated she had gone with the girl and at the time was without a job and had a lot of trouble.  She prayed and it was a miracle because she got three phone calls for jobs after that. 

27. The applicant mother stated that she had been attending the Jehovah’s Witness church for three months.  The reasons for this were that in Sydney she had had a lot of health issues and then in [City 2] she had a contract job.  She wanted to know more about Christianity and the Bible.  The family moved to [City 1] and the applicant mother was asked if she knew about Bible studies and conversion to Jehovah’s Witness was mentioned.

28. The Tribunal asked why the applicant mother was interested in the Jehovah’s Witness faith and she stated that she is interested in reading the Bible and when she heard about the ‘Father’ she was confused and wanted to know more. She prayed to God to give her an answer.  The Tribunal asked about the applicant mother’s understanding of the process of converting to be a Jehovah’s Witness and she stated that she is still in the process of studying the Bible but understands there is a baptism.  Apart from being baptised, she stated, the first thing is to be truthful and the second is prayer and reading the Bible.

29. The Tribunal asked the applicant mother’s understanding of the differences between practicing as a Jehovah’s Witness and other branches of Christianity and she stated that there are a lot of differences and she has been to other Bible studies and they haven’t worried whether she understood things, but Jehovah’s Witnesses explain everything.  Every Friday they do Bible studies at home.  The Tribunal asked about religious holidays followed by Jehovah’s Witnesses and the applicant mother stated she doesn’t know the full details but does know they don’t celebrate Christmas and don’t celebrate individual birthdays.  As to whether they celebrate Easter she stated she needs to learn this.  As to when she was intending to convert, she stated that there are conversions happening from November 23 to 25 and she is going to have a look at that.  As to whether it is just the applicant mother converting, she stated that she would like for her family to be there with her.  As to whether the family all have to convert, she stated yes, the church ‘didn’t force any of that’ and initially her husband didn’t show any interest and her daughter became interested and then her husband became involved.

30. As to her concerns about returning to India if she converts, the applicant mother stated initially she didn’t think about that aspect of it.  The Tribunal observed that the applicant mother seemed to have a limited understanding of what was involved in practicing as a Jehovah’s Witness and asked how that put her at risk if she returned to India and she stated that even if she lived with this knowledge, if she goes back, it is all against Hinduism.  She stated, in response to a further question by the Tribunal, that she had not been baptised as a Christian.

31. The Tribunal asked whether the applicant mother believes her husband would continue his political activities if they return to India and she stated yes, most certainly, because he is very passionate.  The Tribunal noted it had put to the applicant father that Jehovah’s Witnesses believe in being politically inactive and was unable to see how he could practice this religion and also be politically active.  The applicant mother stated that following politics for a Tamil is something and is their right.  She then stated that her husband was not lying and was ‘100% devoted’ to being a Jehovah’s Witness.  The Tribunal noted that the applicant father had given evidence that the whole family was required to convert and the applicant mother stated that they came close to getting converted to Christianity and after a family discussion decided it would be better if they converted together.  The Tribunal noted that the letter sent to the applicants about an upcoming Tribunal hearing coincided with the time they started attending the Jehovah’s Witness church and the applicant mother stated in response that she had been attending Bible studies and had an interest in Christianity before the letter arrived.

32. The Tribunal asked the applicant mother where she would reside if she was required to return to India and she stated she’d never given it a thought.  The Tribunal asked about the applicant mother’s concerns about returning and she stated that she worries for her honour.  Both families are large and she doesn’t want them to have trouble with her family.  Police would come at unlikely hours, at night time when her husband was away, and people would talk about strange men in her house.  As to whether she could reside in Nepal, the applicant mother stated that there are language issues, and religious issues because ‘they don’t believe in the gods’. 

1. The Tribunal asked the applicant mother about the counselling letter provided to the Tribunal and she stated that it is a community centre and their first attendance had been the day prior to the hearing.  She had not had other counselling in Australia but had had acupuncture for depression.  In India she attended yoga and took medication.  A doctor referred her to counselling while they were living in [City 2] but the applicant mother stated she did not follow this up. 

2. As to whether she had any other concerns about returning to India, the applicant mother stated that there were things that happened that she had not told her husband about, which related to a sexual assault.

3. The applicant daughter also gave evidence to the Tribunal.  She stated to the Tribunal that she knows her parents have faced a lot of things; sometimes people were banging on the door and her mother told her to stay inside.  As to her concerns if she had to return to India, she stated that she would face a lot of risk and would have to move more than once because of her father’s political opinion, and also because of their Tamil background.  As to her involvement in the church at present she stated that she has met new people and has learned more about the Bible.  She has not been to temple since 2016 or 2017.

   Country information

4. The Tribunal summarised and discussed at the Tribunal hearing the most recent DFAT report for India, dated 17 October 2018, and invited the applicants to comment on the information during the hearing.

5. The Constitution protects the right to form associations and unions although the right is subject to ‘reasonable’ restrictions in the interests of public order, decency or morality. Public demonstrations require advance notice and permission of authorities and frequently occur. Intelligence agencies regularly monitor the activities of civil society actors and individuals engaged in particular areas of sensitivity.[2]

   [2] DFAT Country Information Report India, 17 October 2018, at 3.22.

6. DFAT assesses that leaders and members of opposition political parties do not face official or societal discrimination, although the risk of political violence between rival supporters increases during parliamentary and state elections, especially in states where results are tightly contested.  However, in general, elections are peacefully conducted.[3]

   [3] DFAT Country Information Report India, 17 October 2018, at 3.25.

7. The applicant father stated in response to this information, on behalf of all three applicants, that his party is for Tamils and Sri Lankan Tamils and is against the government.

8. The Constitution prohibits discrimination against any citizen on the grounds of religion and guarantees the right to freely profess, practice and propagate religion and guarantees any denomination the right to manage its own religious affairs. Federal law provides minority community status to six religious groups including Christians. State governments are able to grant minority status to religious groups that are minorities in a particular region.[4]

   [4] DFAT Country Information Report India, 17 October 2018, at 3.4.

9. Christians constitute 2.3 per cent of the population in India and Christianity is a major religion in three north eastern states and has a strong presence in three southern states including Tamil Nadu.  DFAT assesses that most Christians live day-to-day without societal discrimination or violence; that Christians engaging in proselytising or perceived to be proselytising, particularly to Hindus, face a moderate risk of official and societal discrimination and a moderate risk of societal violence.[5]

   [5] DFAT Country Information Report India, 17 October 2018, at 3.11 & 3.15.

10. The applicant father stated in response, on behalf of all three applicants, that there are many instances where Christians are tortured but this is maybe not reported.  If they go back, they will need to ‘knock on doors’.

11. The Tribunal also noted that it had considered a UK Home Office report from 2018 which states that Christians enjoy religious freedom in much of India and are able to express their faith freely and openly.  They face some abuses, however, by Hindu nationalists, including interruptions of church services or worship, physical violence and threats and harassment, most typically accusing them of forcibly converting Hindus.[6]

    [6] UK Home Office, Country Policy and Information Note, India: Religious Minorities, May 2018, at 2.3.8.

12. The Evangelical Fellowship of India has reported on at least 351 incidents of violence against Christians in 2017.  The highest number of incidents, being 52 incidents, was recorded in Tamil Nadu, followed by Uttar Pradesh, Chhattisgarh, Maharashtra and Madhya Pradesh.  Recorded incidents included physical violence, threats and harassment, interruption of church services or worship, false accusations and vandalism.[7]

    [7] UK Home Office, Country Policy and Information Note, India: Religious Minorities, May 2018, at 6.2.5.

13. The US Commission on International Religious Freedom report for 2019 also notes a reduction in religious freedom in India.  However, of the specific incidents referred to during 2018, the majority are in states other than Tamil Nadu and many of these relate to actions against pastors.  The report states that 12% of the incidents were in Tamil Nadu and included disrupted church services, harassment and arrest or detention of pastors and lay Christians.[8] 

    [8] United States Commission on International Religious Freedom, India Chapter – 2019 Annual Report, at

14. The applicant father stated in response, on behalf of all three applicants, that this had just happened in Chennai, where people were caught and hit on the streets.

15. The most recent DFAT report acknowledges that there is domestic and gender-based violence for women in India.  DFAT notes that the factors that affect the situation for women experiencing violence include where they live, class, caste, ethnicity, religion, education and age.  DFAT assesses that women face a low risk of official discrimination and that women particularly in rural areas and from lower castes face a moderate risk of societal discrimination and violence.[9]  The UK Home Office assesses that ‘not all women experience, or are at risk of, gender based violence, for example, women from higher socio-economic backgrounds’.[10]

    [9] DFAT Country Information Report India, 17 October 2018, at 3.33, 3.34, 3.40.

    [10] UK Home Office, Country Policy and Information Note, India: Women fearing gender-based violence, July 2018, 2.4.1, at

16. The applicant mother stated in response that it is nothing to do with being poor and that if they return they will face issues.

17. As to relocation within India, the most recent DFAT report states that the Constitution guarantees citizens the right to move freely throughout India and that internal migration flows are substantial. DFAT assesses that individuals seeking protection from discrimination or violence have a wide range of viable internal relocation options, although this may be limited for some individuals depending on their personal circumstances.[11]

    [11] DFAT Country Information Report India, 17 October 2018, at 5.14, 5.15, 5.19.

18. The applicant father stated in response that there are a lot of incidents where people preaching or with propaganda have been injured and hurt.

19. A DFAT thematic report on India and Nepal notes that the Treaty of Peace and Friendship signed between India and Nepal in 1950 provides for each country ‘to grant, on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature’ and therefore allows for freedom of movement across the India-Nepal border.[12]

    [12] DFAT Thematic Report, India-Nepal Treaty of Peace and Friendship: Rights of Nepalis in India, 22 December 2016.

20. The most recent DFAT Country Information report for Nepal states that the Constitution guarantees access to basic services and the country has a variety of public and private health care facilities, that the Constitution guarantees the right to free education up to secondary level, and that the Constitution provides for the freedom to practice any occupation and the right to be employed. The DFAT report notes that within Nepal there are some concerns about the movement of Indians into Nepal, especially into the southern section of Nepal, and some anti-Indian sentiment.[13]  The Tribunal noted that this information suggested that the applicants would have access to services and could not see that anti-Indian sentiment amounted to serious or significant harm. 

    [13] DFAT Country Information Report Nepal, 1 March 2019, at 3.11.

21. The applicant father responded on behalf of the applicants and stated in response to this information that if they go to Nepal they ‘have to follow Jehovah’s Witnesses’ and in Nepal they are all Hindu and there will be trouble there.  Also because of his involvement in the Tamil movement and because they only speak Tamil.

22. The DFAT Country Information Report for Nepal states that the 2015 Constitution states that Nepal is a secular state and guarantees freedom of religion, that religious tolerance is broadly practiced and there are no restrictions on the sale or distribution of religious materials, and that Nepal celebrates public holidays for numerous religious faiths in addition to secular and political anniversaries. DFAT assesses that people of different religions generally live side by side without incident in a richly multi-ethnic and multi-religious society, although incidents of tensions and discrimination have been reported in localised events.[14] 

    [14] DFAT Country Information Report Nepal, 1 March 2019, at 3.21, 3.25.

23. The applicant father stated in response to this information that they are both Tamil and Jehovah’s Witnesses. 

24. The DFAT Country Information Report for Nepal states that Nepal has enjoyed several years of political stability and that a lively political environment provides an opportunity for diverse political parties and views.  The report states that an individual’s membership of a political party, along with their ability to be identified and be politically active, is generally respected.[15]

    [15] DFAT Country Information Report Nepal, 1 March 2019, at 3.41.

25. The applicant father stated in response to this information that their ideology is against Hindus.

26. As to the situation for women in Nepal, DFAT assesses that women face high levels of societal and official discrimination and moderate risk of violence, however, the experience of women varies and that women from poorer or lower cate backgrounds experience a higher risk of discrimination and violence.  The DFAT report also notes that discrimination occurs against girls, however, this appears to be within the context of discrimination by family members.[16]

    [16] DFAT Country Information Report Nepal, 1 March 2019, at 3.75.

27. The applicant father stated in response to this information that if they start fresh they will be in a lower socioeconomic group as they will be starting from scratch.  The applicant mother stated in response that as a newcomer in a foreign country, most people would be watching them and wondering what they are up to.

28. The applicants’ representative provided submissions to other country information, also considered by the Tribunal.  This information, and the weight placed on the information provided to the Tribunal, is discussed in further detail below.

    S.424A letter

29. Following the hearing, the Tribunal wrote to all three applicants jointly, inviting them to respond to inconsistent information given in relation to the applicant father’s evidence about the political events he stated he was involved in while in India; about the applicant father and applicant mother’s evidence about any adverse attention given to the applicant father as a result of his stated political activities; in relation to the applicant father’s evidence about his travel to other countries and applications for visas made to other countries; and in the applicant father and applicant mother’s evidence about the requirement for the family unit to convert to Jehovah’s Witnesses.

30. All three applicants were invited to respond to the information.  In response, the Tribunal received a written statement only from the applicant daughter.  Relevant parts of the applicant daughter’s response are discussed further below. 

    Findings of the Tribunal

31. The Tribunal accepts that the applicant father was born in Chennai, that his father passed away in 2010 and that his mother and [number of siblings] are residing in Chennai.  The Tribunal accepts that the applicant father completed part of Year [level] but did not graduate, completed part of a [qualification] in [Discipline 1] and then worked in [Occupation 1] with his father from 1993 onwards.  The Tribunal accepts that the applicant father’s family owns the property that his mother is living in, in [location].  The Tribunal accepts that the applicant father speaks Tamil and limited English.

32. The Tribunal accepts that the applicant mother was born in Chennai and that her mother, [and number of siblings] are living in Chennai.  The Tribunal accepts that the applicant mother completed high school in Chennai, an undergraduate course in [Discipline 2] and one year of [a qualification] in Chennai.  The Tribunal accepts that she then worked for 13 years in [Occupation 2] in various companies.  The Tribunal accepts that she has held various employment positions since arriving in Australia.  The Tribunal accepts the applicant mother speaks Tamil and English and limited Telugu and Hindi.

33. The Tribunal accepts that the applicant father and mother were married in 2001.  The Tribunal accepts the applicant daughter was born in [year] in India.

    Claims relating to political opinion

34. The above matters have been put consistently by the applicants and are accepted by the Tribunal.  However, a number of discrepancies in the applicants’ claims for protection lead the Tribunal to have significant doubts about their credibility.

35. In assessing the applicants’ credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is ‘well-founded’ or that it is for the reason claimed.  A fear of persecution is not ‘well-founded’ if it is merely assumed or if it is mere speculation.  Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.  A decision-maker is not required to make the applicant’s case for her.  Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant (MIEA v Guo & Anor (1997) CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70).

36. In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made.  This may involve an assessment of the applicant’s credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face.  Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.

100.   On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant.  In addition, 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 established.  Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality (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).

101.   The applicant father’s inconsistencies about his travel to other countries and applications for visas made to other countries lead the Tribunal to doubt the truthfulness of his evidence to the Tribunal.  Following the hearing the Tribunal wrote to all three applicants jointly, inviting them to comment on the following discrepancies in the applicant father’s evidence:

·In his written protection application, the applicant father stated that he had travelled to [Country 5], [Country 6] and [Country 4] in 2015;

·In his written protection application, the applicant father stated that he had never had, or used, any other passport or travel document, including expired, lost or stolen documents;

·In his written protection application, the applicant father stated that he had never applied to migrate to any country other than Australia, and that he had never been refused a visa to any country other than Australia;

·In a statutory declaration provided to the Tribunal, dated 10 October 2019, the applicant father stated that he: lived in [Country 1] from 2006 to 2013 and stayed as an unlawful non-citizen; applied for a [Country 2] visa which was refused in 2014 and applied for a [Country 3] visa in 2016 which was refused, and that he had two previous passports;

·In the Tribunal hearing, the applicant father stated that he had travelled to [Country 4] for three days in 2015.  When asked during the hearing about his written claim that he had travelled to [Country 5], [Country 6] and [Country 4] in 2015 he stated that this was correct and he had forgotten this.

102.   Despite the s.424A letter being addressed to all three applicants and noting that the ‘following invitation is addressed to all three review applicants: the applicant father, applicant mother and applicant child’ and stating that the ‘applicant father, applicant mother and applicant child are invited to give comments on or respond to the above information in writing’, only the applicant daughter responded to the invitation to comment.  The applicant daughter stated she had spoken to her father about the above discrepancies and he had said it was his mistake not to mention his travel to [Country 1] and that it was an innocent mistake.

103.   In addition to the applicant father’s failure to disclose significant travel and other visa applications, the applicant father’s inconsistencies in his evidence as to his political activities prior to leaving India lead the Tribunal to have significant doubts about his claims relating to his political opinion.

104.   In the s.424A letter sent to all three applicants, the Tribunal’s invitation to comment set out the following matters in respect of the applicant father’s political claims:

Firstly, there are inconsistencies in the applicant father’s evidence about the political events he states he was involved in while in India:

·    In his written protection application, the applicant father stated that he organised several political meetings including a procession about the Tamils involved in Rajiv Gandhi’s assassination;

·    In his Department interview, the applicant father stated that he spoke in favour of the LTTE at a political meeting and attended around 10 protests, all in Chennai and the outskirts of Chennai, and that he did not have a leadership position within the party;

·    At the Tribunal hearing the applicant father stated that he was only a participant in the protests;

·    At the Tribunal hearing the applicant father stated that he attended 25 to 30 protests over a seven-month period in Chennai and also attended one in Madurai.

This information is relevant because the inconsistencies in the applicant father’s evidence may lead the Tribunal to not accept that he participated in any protests or political meetings, either in Chennai or Madurai.  It may also cause the Tribunal to not accept that the applicant father organised any political meetings or that he spoke in favour of the LTTE at a political meeting.  It may also cause the Tribunal to doubt the truthfulness of the applicant father’s evidence.  It may cause the Tribunal to not accept that the applicants have a well-founded fear of persecution if they return to India or that there is a real risk the applicants will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to India.  This would be the reason, or part of the reason, why the Tribunal would affirm the decision under review.

105.   The applicant daughter’s response to this information stated that her father suffers depression and stress and that he had told her he actively participated in the protest, meetings and demonstrations; that due to the emergency of the Naam Thamilar Kathci, the local level branch used to organise many meetings and there were ‘two or three kinds of political meetings’ such as demonstrations for persons wrongly accused of killing Rajiv Gandhi, in support of Sri Lankan Tamils, against honour killings and caste, against racial and religious discrimination, against violence against women, and against the effectiveness of the Tamilnad government and bribery and corruption.  The applicant daughter stated that her father had attended these events and cumulatively would have attended 25 to 30 protests.  The applicant daughter stated that in relation to LTTE political events, her father would have attended 10 ‘programs’.  The applicant daughter stated that ‘in relation to the bribery or in effectiveness of the government, he said he used to attend as a participant but in relation to programs and activities in support of people who are in jail falsely accused in Rajiv Gandhi killing and in support of the LTTE, he said he used to actively participate and “express my opinion”’. 

106.   The Tribunal’s s.424A letter also invited the three applicants to comment on the following information, relevant to the applicant father’s political claims:

Secondly, there are inconsistencies in the applicant father and applicant mother’s evidence about any adverse attention given to the applicant father as a result of the applicant father’s stated political activities.

·   In his written protection application, the applicant father stated that he was ‘apprehended, detained and interrogated’ on a few occasions and warned on several occasions by police;

·   In his Department interview, the applicant father stated that he was not arrested but was cautioned only, and that he had never been arrested, detained or locked up;

·   In his Department interview, the applicant father stated that he was questioned and cautioned and later in the interview stated he was not questioned;

·   In the Tribunal hearing, the applicant father stated that the police came to his home and that he was caught by the collar a couple of times;

·   In the Tribunal hearing, the applicant mother was asked about the written claims that the applicant father had been ‘apprehended, detained and interrogated’ and the applicant mother stated that the applicant father had been taken away in a vehicle six to seven times for two to three hours at a time, she believes by thugs, and that while there were no visible injuries he was handled roughly.

This information is relevant because the inconsistencies in the applicant father’s evidence may lead the Tribunal to not accept that he was apprehended, detained, interrogated, questioned, cautioned or caught by the collar by police.  The inconsistencies between the applicant father’s evidence and the evidence given by the applicant mother at the hearing may lead the Tribunal to not accept that the applicant father had been taken away by police on several occasions for two to three hours at a time.  It may also cause the Tribunal to doubt the truthfulness of the applicant father and the applicant mother’s evidence.  It may cause the Tribunal to not accept that the applicants have a well-founded fear of persecution if they return to India or that there is a real risk the applicants will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to India.  This would be the reason, or part of the reason, by the Tribunal would affirm the decision under review.

107.   The applicant daughter responded to this information by stating that the term ‘apprehended’ has many meanings; that her father said he was picked up by the police on a few occasions; and that his statement and his oral statement are consistent that he was never arrested by the police or locked up by the police.  Her father had told her he was taken from the house and delayed and asked questions on one occasion.

108.   The Tribunal finds that, on each occasion the applicant father has been asked to provide information about his past political activities, he has provided different information about his level of involvement in political parties and has given different information about the number of protests he states he has been involved in.  When these discrepancies were put in writing to the applicants after the Tribunal hearing, the applicant daughter gave a further, and different, account of the protests the applicant father asserts he has been involved in, stating that he attended 25 to 30 protests, in addition to 10 relating to the LTTE.  This is inconsistent with the evidence given by the applicant father himself on any occasion.

109.   At the Tribunal hearing the applicant father was able to give limited detail about the NTK candidates in 2016.  He was unaware of any high profile female candidates or candidates with disabilities and gave only general details about the protests he states he was involved in while living in India.  The vague nature of the applicant father’s evidence in addition to the significant discrepancies set out above lead the Tribunal to not accept that the applicant father organised several political meetings including a protest about Tamils involved in Rajiv Gandhi’s assassination, that he spoke in favour of the LTTE at a political meeting, that he attended ten protests in Chennai, that he attended 25 to 30 protests over a seven-month period in Chennai and one in Madurai, that he was active politically from November 2015 or that he was working for Tamils from a young age.  The Tribunal does not accept the applicant father was involved in any protest activity while he lived in India.  The Tribunal does not accept that the document provided by the applicant father about his membership of the NTK party is a genuine document.

110.   In addition, the applicant father’s written claims stated that he was ‘apprehended, detained and interrogated’ while in India.  He gave varying accounts during his Department interview of whether this statement was correct and then told the Tribunal the police came to his home and caught him by the collar.  The applicant mother raised significant new information at the Tribunal hearing, stating that the applicant father had been taken away six to seven times, she believes by thugs.  The applicant father did not give any evidence to the Tribunal about having been taken away by police on six to seven occasions and the Tribunal finds it implausible that the applicant father would not give evidence about these events if they had occurred, given their relevance to his claims for protection.  The applicant daughter, following the hearing, gave a third account of what the applicants assert occurred, stating that her father was taken away from the house on one occasion; this was inconsistent with both the applicant mother and the applicant father’s evidence as to what had occurred. 

111.   Given the significant discrepancies in the applicants’ evidence, the Tribunal does not accept the applicant father was apprehended, detained, interrogated, questioned, cautioned or caught on the collar by police.  The Tribunal does not accept that police came to the applicant father’s home, that he was picked up by police on a few occasions, that he was taken away six to seven times for two to three hours at a time or that he was taken from the house and asked questions on one occasion. 

112.   The Tribunal does not accept the applicant father left India because of his involvement in Tamil causes, that the police threatened to file cases against him or that his wife and daughter were threatened or harassed by police because of his political activities.  The Tribunal notes the media reports provided by the applicants’ representative in written submissions to the Tribunal, relating to action against Tamil activists,[17] however, the Tribunal does not accept that the applicant father is at risk from such action on the basis that it does not accept he was politically active for Tamil causes while in India.  For the same reason, the Tribunal does not accept the submissions of the representative that the applicant father would be subject to false imprisonment, torture ‘or worse’ if he returns to India.[18]  For the same reason, the Tribunal does not accept that the applicant father has been politically active while in Australia or that he is at risk upon return to India because of any political activity in Australia.

[17] Representative submissions 29 October 2019.

[18] Representative submissions 29 October 2019.

113.   The Tribunal has considered whether the applicant daughter’s explanation that her father suffers depression and stress may explain the discrepancies outlined above.  In her response to the s.424A letter, the applicant daughter described her parents as being ‘under serious mental health issues’.  The applicant father, in a statement provided to the Tribunal following the hearing, stated that his wife has ‘physical and mental health issues’; he did not assert that he himself suffers from any mental health problems.  The Tribunal has before it a Chinese medical clinic letter stating that the applicant mother attended on 30 September 2019 for treatment, however, the letter does not state what the applicant mother was being treated for. Other medical documentation provided in relation to the applicant mother relates to investigation for thyroid function and diabetes in early 2018 and does not refer to a mental health diagnosis.  The Tribunal was provided a counselling letter stating that all three applicants attended on 15 October 2019, however, does not provide any details about what the counselling related to, any diagnosis of any of the applicants or any symptoms experienced by any of the applicants.  The Tribunal does not accept on the evidence before it that any of the applicants has a diagnosed mental health condition.  The Tribunal did not consider that any mental health issues explain the amount and extent of discrepancies in the applicant father’s evidence.

114.   The Tribunal finds that, if he returns to India, there is not a real chance the applicant father would face serious harm because of his political opinion or imputed political opinion.  The Tribunal is not satisfied that the applicant father has a well-founded fear of persecution because of his political opinion supporting Tamil nationalist ideologies, his political opinion supporting NTK which is seen as a party challenging the structure of the Indian state, his political opinion supporting the LTTE and the freedom struggles of Sri Lankan Tamils, his political opinion against Dravidian parties and Tamil nationalist ideology as being perceived as anti-Dravidian, or his political opinion against parties which promote Hinduvita ideologies.  The Tribunal is not satisfied that the applicant mother or applicant daughter have a well-founded fear of persecution because of the applicant father’s political claims.

Claims relating to religion

115.   The applicants state that they commenced attending a Jehovah’s Witness church three months before the Tribunal hearing.  They provided to the Tribunal photos of all three applicants standing in front of a building titled ‘Kingdom Hall of Jehovah’s Witnesses’.  Following the hearing, on 20 April 2020, they provided to the Tribunal copies emails to each applicant confirming a recurring donation of $25 per month each to [a Jehovah’s Witnesses church] and a ‘Volunteer Induction Confirmation’ identification card for each applicant, each expiring [in] 2019.  The Tribunal finds that the applicants have had contact with a Jehovah’s Witness church since approximately August 2019 and that they are currently each donating $25 per month to the church.  The Tribunal accepts that the applicants attended a three-day Jehovah’s Witness forum in November 2019, as volunteers rather than as delegates.  The Tribunal finds that the applicants have not formally converted to practice as Jehovah’s Witnesses.

116.   The applicant mother stated that she had been attending church for 12 months, has not been baptised as a Christian and that she had become interested in becoming a Jehovah’s Witness when someone talked to her about the ‘Father’ and she wanted to know more.  The Tribunal considers it implausible that the applicant mother became interested in a new religion to find out who the ‘Father’ was.  The applicant mother was asked about the process of conversion to become a Jehovah’s Witness at the hearing and was only able to explain to the Tribunal that this involved baptism, reading the Bible, being truthful and prayer.  She was unable to explain the differences between practicing as a Jehovah’s Witness and other branches of Christianity and when asked about this during the hearing stated there are ‘a lot of differences’ without being able to give any examples. 

117.   The Tribunal accepts the applicant father’s evidence that he had been attending Bible studies and attending a Jehovah’s Witness church for some two to three months prior to the Tribunal hearing.  The Tribunal finds that the applicant father has limited understanding of the process of converting to a Jehovah’s Witness. For example, when the Tribunal asked him about conversion, he was only able to describe attending meetings and reading the Bible, and he described Jehovah’s Witness activities during the Tribunal hearing as ‘propaganda’.  The applicant father’s stated intention to convert to a Jehovah’s Witness is inconsistent with his intention to be politically active if he returns to India and, when this was put directly to him at hearing, he appeared unaware of this and stated that his religion would come first and his party later.  The representative submitted following the hearing that ‘political expression and religious expression is one’s fundamental rights and cannot be separated’ and, further, that there is no conflict between promoting Tamil nationalism and Christian beliefs.  The representative provided a chart stating that it supports that ‘while it may not be common, there are Jehovah’s Witnesses who are politically inclined’.  The Tribunal notes, however, that the chart is titled ‘Jehovah’s Witnesses in the U.S.: Highly religious and removed from politics’ and finds that the information contained in the chart supports that the vast majority of Jehovah’s Witnesses are ‘independent / no leaning’.[19] 

[19] Representative submissions 29 October 2019. 

118.   In addition, the applicant mother and applicant father gave differing evidence of whether the whole family is required to convert.  In a s.424A letter sent to all three applicants following the hearing, the Tribunal invited comment on the following evidence:

There are inconsistencies in the applicant father and applicant mother’s evidence about the requirement for the family unit to convert to Jehovah’s Witnesses:

·    The applicant father stated to the Tribunal that Jehovah’s Witnesses will only convert the family as a whole;

·    The applicant mother stated to the Tribunal that she would like the family to be with her for her conversion, that the church doesn’t force the family to all convert, but that her daughter and then her husband became interested.

This information is relevant because the inconsistencies in the applicant father and applicant mother’s evidence may lead the Tribunal to doubt the truthfulness of the applicant father and applicant mother’s evidence.  It may also cause the Tribunal to doubt the genuineness of the applicant father and applicant mother’s stated intention to convert to Jehovah’s Witnesses.  It may also cause the Tribunal to not accept that the applicants have a well-founded fear of persecution if they return to India or that there is a real risk the applicants will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to India.  This would be the reason, or part of the reason, why the Tribunal would affirm the decision under review.

119.   The applicant daughter’s response in relation to this information was that her parents had serious mental health issues during the hearing and her mother has significant health issues and is undergoing treatment, and got confused with the questions.  Her father ‘said due to depression that Jehovah witness only convert the family as a whole’ and that he had actually intended to say that the whole family wanted to convert.

120.   The applicant mother’s implausible explanation for becoming interested in practicing as a Jehovah’s Witness, her superficial understanding of conversion to or practicing as a Jehovah’s Witness and her commencement of attendance at a Jehovah’s Witness church at the time she was invited to a Tribunal hearing all lead the Tribunal to have significant doubts about the applicant mother’s intention to convert to practice as a Jehovah’s Witness.

121.   The Tribunal is prepared to accept that the applicant mother has been reading the bible for 12 months and that, if she returned to India, she would continue to do so.  The Tribunal finds that the applicant mother does not have a genuine intention to convert to practice as a Jehovah’s Witness if she returns to India now or in the reasonably foreseeable future.  The Tribunal finds that, if she returns to India, the applicant mother would not practice as a Jehovah’s Witness, would not undertake activities on behalf of the Jehovah’s Witness church and would not proselytise as a Christian or as a Jehovah’s Witness.

122.   Given the superficial understanding of the applicant father about converting to practice as a Jehovah’s Witness, his lack of understanding that his intention to be politically active would be inconsistent with his practice as a Jehovah’s Witness, and his commencement of attendance at a Jehovah’s Witness church at the time that he was invited to a Tribunal hearing, the Tribunal finds that the applicant father does not have a genuine intention to practice as a Jehovah’s Witness if he returns to India now or in the reasonably foreseeable future.

123.   The applicant daughter stated to the Tribunal that she has learned more about the Bible and the Tribunal is prepared to accept that the applicant daughter has been attending church with the applicant mother.  The Tribunal has found that the applicant mother and applicant father do not have a genuine intention to convert to practice as Jehovah’s Witnesses and the Tribunal finds, as a result, that the applicant daughter would not convert to practice as a Jehovah’s Witness.  The Tribunal finds that the applicant daughter would not attend church, practice as a Jehovah’s Witness, undertake activities on behalf of the Jehovah’s Witness church or proselytise as a Christian or as a Jehovah’s Witness if she returns to India.

124.   The Tribunal has found, above, that it is not satisfied that the applicant mother or applicant father have mental health conditions.  Given the extent of the discrepancies in the applicants’ evidence and because the Tribunal has not accepted any of the applicants has a mental health diagnosis, the Tribunal is not satisfied that the applicants’ lack of credibility is due to mental health issues of either the applicant father or applicant mother.

125.   The Tribunal finds that, if the applicants return to India now or in the reasonably foreseeable future, they would return to reside in Chennai, Tamil Nadu, where the applicant father and applicant mother both have extended family living.  The Tribunal is prepared to accept that the applicant mother would continue to study the Bible if she returns to India, however, the Tribunal is not satisfied that the applicant mother reading the Bible amounts to a real chance of serious harm. 

126.   Following the hearing, the applicants’ representative provided links to articles reporting on an attack by Hindu extremists on Christians travelling home from a national congress in Tamil Nadu on 5 February 2020, an attack on the family of an evangelist on 20 February 2020 in Chhattisgarh and a further article (link invalid) that the representative submitted states that Christians were targeted in the lead up to President Trump’s visit to India in February 2020.  The Tribunal does not accept the applicants will attend a national religious congress or practice as evangelists and does not accept that the information provided by the representative establishes that the applicants face a real chance of harm in India because of their religious activities. 

127.   Other country information considered by the Tribunal, and discussed with the applicants during the Tribunal hearing, states that Christianity has a strong presence in Tamil Nadu.  The UK Home Office assesses that Christians are able to express their faith freely and openly, while DFAT similarly assesses that most Christians live day to day without societal discrimination or violence.  DFAT states that Christians who are perceived to be proselytising face a moderate risk of discrimination and violence; however, the Tribunal does not accept the applicants will proselytise and does not accept they will ‘knock on doors’ as asserted by the applicant father in the hearing.  The Tribunal finds that there is not a real chance the applicants face harm in India now or in the reasonably foreseeable future because of their religious beliefs. 

Violence claims relating to the applicant mother and applicant daughter

128.   The applicant father has submitted that he fears his wife and daughter will face sexual violence, sexual harassment and assault if they return to India.

129.   The applicant mother gave evidence at the Tribunal hearing that she had an experience she had not told her husband about which related to a sexual assault.  She did not provide details to the Tribunal, however, the Tribunal is prepared to accept that the applicant mother was sexually assaulted and that there is a reasonable explanation for her not having disclosed this to her husband previously or having disclosed this for the purposes of her written protection application.

130.   However, as to the risk in the reasonably foreseeable future to the applicant mother and applicant daughter, the Tribunal notes the country information, discussed with the applicants at the Tribunal hearing, states that not all women are at risk of gender based violence and that, while domestic and gender based violence occurs, the risk is higher to women in rural areas and from lower castes. DFAT assesses that the risk to women from gender-based violence varies depending on where an individual lives, their caste, class, ethnicity, religion, education and age.

131.   The applicants’ representative, in written submissions following the Tribunal hearing, provided links to reports that he submitted demonstrate ‘the human rights situation in India in recent years’.[20]  The Tribunal noted that many of the articles referred to by the representative focus on violence against women in other areas than Tamil Nadu, in particular how dangerous Delhi is for women, and particularly vulnerable women in Delhi such as homeless women.  The articles refer to other states including Haryana and Mumbai; a 2015 India Spend article notes that half of the crimes against women are committed in New Delhi, West Bengal, Uttar Pradesh, Rajasthan and Madhya Pradesh.  The Tribunal accepts from the information provided by the representative that crime against women is particularly high in Delhi and in states other than Tamil Nadu.  One articled referenced by the representative refers specifically to Tamil Nadu, however, reports on rapes during 2013.  The Tribunal has placed little weight on this article given relates to statistics from some seven years ago. 

[20] Representative submissions 29 October 2019.

132.   A number of the articles referenced by the representative refer to cruelty by husbands and relatives being the most widely reported crime by women in India; the Tribunal notes that the applicant wife does not submit that she fears harm from her husband if she returns to India.  The Tribunal has placed little weight on this information.

133.   A number of articles referenced by the representative refer to the enactment of legislation to protect women, including the Protection of Women from Domestic Violence Act 2005, Sexual Harassment of Women at Workplace Act 2013 and the Criminal Law (Amendment) Act 2013, which widens the definition of rape.  The Tribunal accepts from this information that the government has enacted legislation to attempt to address the issue of violence against women across India. 

134.   A number of articles referenced by the representative relate to statistics from 2015.  The Tribunal has placed little weight on these articles given they relate to statistics from five years ago.

135.   The representative referenced an Immigration and Refugee Board of Canada article, which states that poor women have the most difficulty navigating the legal system and police are less likely to help the poorest women in society.[21]  This information, when considered with other information provided by the representative and with the DFAT country information report discussed with the applicants at the Tribunal hearing, indicates that the risk to women varies depending on their personal circumstances.

[21] Immigration and Refugee Board of Canada, India: Violence against women, including domestic violence, homelessness, workplace violence; information on legislation, state protection, services, and legal recourse available to women who are victims of violence, 15 May 2015 at

136.   The Tribunal finds that the applicant mother and applicant daughter would return to Chennai, the capital city in Tamil Nadu.  The applicants would return as a family unit and would return to an area where they both have extended family: the applicant father’s mother and [number of siblings] are living there and the applicant mother’s mother, [and number of siblings] are living there.  The applicant mother is a Hindu who is able to speak Tamil and English and some Telugu and Hindi.  She has an undergraduate degree in [Discipline 2] and worked for 13 years in [Occupation 2] in India in various positions.  She has found employment in a number of different positions in Australia.  The applicant daughter is currently completing secondary school in Australia and is intending to study [Discipline 3] upon completion of her secondary schooling.

137.   On the basis of their ability to return to a city-based environment, their caste, education levels and the fact that they would be returning as a family unit along with the applicant father to an area where they have extensive family supports, the Tribunal finds there is not a real chance the applicant mother or applicant daughter is at risk of harm because of their gender, if they return to India now or in the reasonably foreseeable future.  The Tribunal finds that, while the applicant mother and applicant daughter may be at low risk of official discrimination, having regard to the country information set out in the most recent DFAT report, any discrimination they may face does not meet the threshold of serious harm.

Cumulative claims

138.   The Tribunal has also considered whether the applicants are at risk because of the applicant father’s political activities, their religious beliefs, the applicant mother and applicant daughter’s risk of violence due to gender, and the applicant mother’s medical reports that were submitted that indicate she was investigated for thyroid function and diabetes in early 2018.  However, even when considered cumulatively, the Tribunal is not satisfied that the applicants face a real chance of persecution if they return to India now or in the reasonably foreseeable future.

139.   The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).

Complementary protection

140.   Having concluded that the applicants do not meet the refugee criteria in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). 

141.   Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

142.   The Tribunal is not satisfied that there is a real risk the applicants will suffer significant harm as a necessary and foreseeable consequence of their removal from Australia to India.

143.   The Tribunal is not satisfied the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).

144.   For the reasons given above, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations.  Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa.  It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

DECISION

145.   The Tribunal affirms the decision not to grant the applicants protection visas.

Tamara Hamilton-Noy
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.

…