1703524 (Refugee)

1703524 (Refugee) [2020] AATA 5515 (24 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1703524
COUNTRY OF REFERENCE:                   India
MEMBER:Catherine Carney-Orsborn
DATE:24 November 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 November 2020 at 3:58pm
CATCHWORDS
REFUGEE – protection visa – India – political opinion – membership in the Akhil Bharatiya Vidyarthi Parishad (ABVP) – support of the Bharatiya Janata Party’s (BJP) policies – critic of Congress and All India Majlis-e-Ittehadul Muslimeen (AIMIM) parties – credibility concerns –oral evidence vague and lacking detail – delay in seeking protection – safety of parents in home village – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of India, arrived in Australia [in] March 2007 as the holder of [a] student visa. The applicant was granted three further [student] visas from 22 May 2007 to 25 May 2010. The applicant applied for a [fourth] further stay visa on 16 March 2011 and was refused on 11 January 2012. The applicant applied to the Tribunal for review of the decision, and the Tribunal affirmed the decision [in] October 2013. The applicant requested Ministerial Intervention on 26 November 2013 and was refused on 11 February 2014. The applicant applied for combined [partner] visas on 26 March 2014 and was refused on 17 April 2015. The applicant applied to the Tribunal for review, and the Tribunal affirmed the decision [in] December 2015. The applicant applied for judicial review of the Tribunal’s decision on 7 March 2016 and withdrew the application on 18 April 2016.
The applicant applied to the Department of Home Affairs (the Department) for a Protection visa on 7 July 2016. On 6 February 2017, the delegate refused to grant the visa on the basis that there was insufficient evidence that the applicant would suffer harm due to his political beliefs. The applicant applied to the Tribunal for review of the decision on 28 February 2017.
The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has before it the Department file and the Tribunal file. The Department file contains the application for protection forms, a written statement by the applicant setting out his claims for protection, a copy of the applicant’s passport, and a copy of the delegate’s decision record.
The applicant claims that he will be persecuted if he returns to India due to his membership in the Akhil Bharatiya Vidyarthi Parishad (ABVP) and support of the Bharatiya Janata Party’s (BJP) policies.
The following information is provided by the applicant in his application for protection forms.
The applicant was born on [date] in Vijaywada, Andhra Pradesh State, India. The applicant is a Hindu, who speaks, reads, and writes Telugu and English, and can speak and write Hindi. The applicant began a relationship [in] December 2013 in Sydney and separated [in] June 2015.
The applicant’s father and mother reside in India, and the applicant is in contact with them. The applicant’s sister is in Australia. The applicant lived at one address in Vijaywada from birth until March 2007.
The applicant attended primary school and high school from June [year] until graduating from [School 1], Tenali, Andhra Pradesh in March 2004. The applicant studied a [Qualification 1] at [University 1], Vijaywada from June 2004 until March 2006. The applicant then studied a [Qualification 2] at [an Australian University] from March 2007 until March 2009. The applicant then lists a [Qualification 3] at the [same University] but does not indicate years of study nor completion.
The applicant worked at [Employer 1] in Sydney from September 2008 until December 2015 and has been unemployed since.
The applicant claims that he was born into a Hindu family and has been interested in politics since high school. The applicant is an active member of ABVP and participated in anti-Congress and All India Majilis-e-Ittehadul Muslimeen (AIMIM) parties. The applicant strongly believes in the BJP’s policies.
In March 2004, ABVP organised a rally in support of a BJP candidate for the State Legislature Assembly. On 4 March 2004, the applicant was attacked by members of Congress and AIMIM for working against them and not supporting them. The applicant was badly hurt and ran for his life. this happened again on 15 March 2004.
The applicant claims that, after the Congress Party came into government in the state, it put a lot of pressure on the applicant and he did not vote in 2004, as he was unable to get his voter ID. The applicant tried to complain to the police, but Congress Party suppressed his right to vote, and threatened his family member not to be involved in politics and the ABVP.
After finishing his degree in 2006, the applicant tried to get jobs but failed, because of the government’s political power. The applicant came to Australia in March 2007. The applicant cannot return to India because of threats to his life, and because he will be unable to get jobs. The applicant claims that AIMIM are now very strong and may threaten the applicant’s life due to his support for the BJP, as they do not like BJP supporters. The applicant claims that he has been in Australia since 2007 and is over [age] years old, and thus cannot get any jobs due to political power and hatred. The applicant claims that he cannot work in other states in India as he does not have any relatives in other parts of the country.
The applicant claims that if he returns to his state of Andhra Pradesh, then the politician whom the applicant confronted will harm the applicant. The applicant states that he tried to lodge a First Incident Report with the police, but they refused to take the application due to political pressure. The applicant states that he does not have any relatives or extended family in India, and that he cannot relocate because Congress Party operate all over India, and because the applicant is unable to get jobs in other parts of India.
The applicant states that he fears Andhra Pradesh politicians will harm him if he returns. The applicant claims that the government and authorities work together, and the applicant fears both the politicians and local authorities. The applicant states that, after many years in Australia, he will be unable to get jobs or settle down in India.
COUNTRY INFORMATION
The Department of Foreign Affairs and Trade (DFAT) Country Information Report – India, dated 17 October 2018, provides the following information on politics in India:
Democratic elections for the Lok Sabha, the lower house of parliament, have been held since 1951. The only exception to this was when the Indian Congress Party’s then Prime Minister Indira Gandhi postponed elections during a period of emergency rule from 1975 to 1977. Notwithstanding the scale and complexity of India’s political landscape, and noting some exceptions, elections in India tend to be peaceful, broadly free and fair, reflect the will of the electorate, and result in regular transfers of power at central and state levels. Activists have occasionally called for communities in conflict-affected areas to boycott electoral processes, and low-level violence has sometimes occurred.
India has a diverse political landscape, which represents different ethnic, religious, secular and political interests. There are no constitutional, legal or other institutional restrictions preventing minorities from participating in politics. Political parties often court ethnic, religious and caste-based minorities for their ability to deliver ‘vote banks’.
The Constitution protects the right to form associations and unions. This 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.
There are few publicly available statistics on election incidents. Reports of violence around polling stations do occur during electoral periods.
During 2017, police filed sedition charges against TTV Dhinakaran, the leader of the All India Anna Dravida Munnetra Kazhagam party, and some of his supporters for distributing pamphlets that criticised Prime Minister Modi and the Tamil Nadu Chief Minister.
DFAT assesses that leaders and members of opposition political parties do not face official or societal discrimination. 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 in India are peacefully conducted.[1]
[1] DFAT, Country Information Report – India, 17 October 2018, pp. 15 – 16, paras [3.20] – [3.25].
Regarding internal relocation, the DFAT Country Information Report states the following:
Sections 19(1)(d) and (e) of the Constitution guarantee citizens the right to move freely throughout the territory of India and the right to reside and settle in any part of the territory of India, subject to reasonable restrictions in the interests of the sovereignty and integrity of India and the security of the state. The interpretation of ‘reasonable restrictions’ is left to the government and courts. It enables laws and regulations that can restrict movement (for example, where there is unrest or in some border areas) and residence (non-residents cannot buy land in Jammu and Kashmir or in Uttarakhand).
India’s internal migration flows are substantial. Migration data from the 2011 census has been collected, but not yet released. The 2001 census recorded an estimated 307 million internal migrants in India, defining as a migrant anyone who lived in a place different to their place of birth or place of last residence. This figure represents approximately 30 per cent of India’s total population. The numbers may include people who had moved over very short distances within the same district, and may have missed a significant number of seasonal migrants, many of whom work in the informal sector without papers.[2]
[2] DFAT, Country Information Report – India, 17 October 2018, p. 27, paras [5.14] – [5.15].
According to a 2019 article in The Hindu, BJP currently rules 17 states in India.[3] Based on the map provided in the article, BJP currently have government in the following 17 states:
[3] Srinivasan Ramanai, ‘Data – The NDA juggernaut has halted with the BJP-led alliance losing power in key States,’ The Hindu, 25 December 2019, (accessed 12 November 2020).
1.       Himachal Pradesh
2.       Uttarakhand
3.       Haryana
4.       Uttar Pradesh
5.       Bihar
6.       Sikkim
7.       Arunachal Pradesh
8.       Assam
9.       Nagaland
10.      Manipur
11.      Mizoram
12.      Tripura
13.      Meghalaya
14.      Gujarat
15.      Karnataka
16.      Tamil Nadu
17.      Goa
A Department of Home Affairs 2019 update on the Indian federal election notes the following:.
The election results show that the BJP has expanded its geographical reach in India. The BJP’s strongest support has traditionally been in India’s Hindi-speaking states in the north, with the exceptions of Modi’s home state of Gujarat and Maharashtra, where the BJP has governed in alliance with a local party. Since Modi became prime minister, the BJP has formed governments in north-eastern states like Assam and Tripura, which are primarily Assamese and Bengali-speaking. In this election, the BJP won seats in non-Hindi speaking states like Orissa and West Bengal in the east. The party still only has a modest presence in southern India. According to political scientist, Mahesh Rangarajan, ‘[t]he geographical expansion of the BJP is a very significant development’. Congress, in contrast, is reported to face a shrinking of its geographical space.[4]
[4] Department of Home Affairs, Situation Update – India: General Election 2019, p. 5
The hearing
The applicant appeared before the Tribunal on 17 November 2020 to give evidence. The applicant was assisted at the hearing with a Telugu interpreter.
A summary of the evidence given is as follows.
The Tribunal went through the process and explained the reason for the hearing. The Tribunal explained that it was the applicant’s opportunity to discuss relevant issues with the Tribunal.
The Tribunal asked if the applicant has any difficulty understanding the interpreter, he indicated he did not. The Tribunal pointed out that in his application for a protection visa he had indicated he could speak, read and write English. He confirmed that was correct. The Tribunal asked if he wanted complete interpretation or assistance at times. He indicated assistance at times.
The Tribunal indicated that it had before it the information on the Department file and Tribunal file. The Tribunal asked the applicant if the information contained in the application for protection was true and correct. The applicant indicated that it was true and correct.
The applicant gave some background to the Tribunal. He first entered Australia on a student visa in 2007. He has had several subsequent student visas and applied for a partner visa.
He has his parents living in India. In Australia he has a sister, aunt and cousin/brother. He is not working now. He is relying on his family for financial support.
The Tribunal asked why the applicant could not return to India. He stated words to the effect that three years ago he had decided to go back to India, but his friends told him not to return as he will face big problems. The Tribunal asked him to expand on those problems. He responded with words to the effect that nothing has changed in India. He stated that things have not changed from when he was a student. The Tribunal asked for more detail he stated that “They don’t allow me to work or live peacefully, there is no safety for my life”. The Tribunal asked who “They” were. He responded that he was “anti-Congress”.
He said words to the effect that he used to work with an anti-Congress and YSRCP party. He supported BJP. He said there is the YSRCP party now. He claims that the members are the same, but the party name is different. It is still the Congress party.
The Tribunal asked why he is unsafe. He said that if he does not like something, he will talk about it and if he returns to India, he will not be quiet, and it will be a problem.
The applicant then stated that he studied [Discipline 1] and if he wanted to start a business, he does not have any money. The applicant went on to discuss that he will not be approved for a loan in India. The Tribunal asked if he had saved any money working in Australia. He responded that he did not have a great job and any money he earned has been spent. He expanded that he was planning to do something here in Australia.
The Tribunal again attempted to take the applicant back to why he was fearful of returning to India. The Tribunal clarified that the applicant claims to be a supporter of the BJP party. He said he was. The Tribunal asked him to give some more detail of his fear in India. He responded with words to the effect that there is no peace, and it is more peaceful in Australia. He said he did not think he could live the same in India as in Australia.
The Tribunal asked if he wanted to add anything else. He replied he did not.
The Tribunal then referred to the written claims. The Tribunal asked if there were any incidents which made him fearful. He responded that he used to go to college in India, he was stopped, and “they” tried to hit him. He said he was scared and went to a friend’s house and did not go to his parents’ house.

He said there were political members in his area and several who work for some political parties and he has a problem with all those people. The Tribunal asked for details, and he responded that they are low level people who are not well educated. He claims they will do anything for their party and that has never changed. The Tribunal asked when he was attacked. He responded that he was attacked in 2005 and 2006. They tried to hit him, and the Congress party was in power. He claimed that he could not walk to college as the political members watched him or hunted him or “something”.
The Tribunal said words to the effect that from the information in his application it appears he did finish his degree. He responded that he had to get tuition to finish it.
The Tribunal asked who is in power in his home state. He responded that it is the YSRCP.
The Tribunal asked if the BJP had ever been in power in his state. He responded that it had never been in power in his state.
The Tribunal then put to the applicant that if he was fearful of returning to his home state he could relocate within India. The Tribunal read out independent information which indicates that the BJP is in power in many states and is growing in power. The Tribunal pointed out that BJP is in power in areas such as Delhi. He responded that there are a few reasons why he cannot relocate, and one reason is that he does not know other languages. He claims that members of the political party will find him and there will be no protection from them. He said they will easily find him from watching his mother and father who would visit him.
The Tribunal asked if his parents are at risk in his home state. He responded that they are old and not political, so they are not at risk.
The Tribunal then put to him that it has been many years since the incidents he claims happened and asked why people would still be interested in persecuting him for his political beliefs. He responded that they are a different kind of people. He claims that will take revenge on him as they are low level people.
The Tribunal put to the applicant that his immigration history and his attempts with previous visa applications could indicate that his motivation was to stay in Australia rather than any fear of going back to India. He responded that that he was trying to finish his course and wanted to do something in Australia, but things were not working out. He said his marriage was not successful. He said words to the effect that as an individual he gets more respect in Australia.
The Tribunal again put to the applicant that it appears he wants to stay in Australia rather than having a genuine fear of returning to India.
He responded with words to the effect that he cannot comment but if he goes back, he is not safe or secure.
The Tribunal then put to the applicant that it was concerned that there were some inconsistencies in his evidence. At hearing he said he was attacked in 2005 and 2006 however in his written claims he said the incident happened in 2004. He responded that it happened on both occasions. The Tribunal further put to the applicant that from independent information it appeared that the BJP had been in power in his home state in 2017. He responded that this is correct and that is why he had earlier considered returning to India.
The Tribunal then put to the applicant information as set out above that DFAT’s assessment is that elections in India are generally peaceful. He did not accept that and said that the truth does not come out in public.
The Tribunal again discussed country information on India and relocation.
The Tribunal asked the applicant if there was anything further he wanted the Tribunal to consider. He responded that there was not.
Nationality
The applicant claims to be a citizen of India and has provided a copy of his Indian passport to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of India and that he is outside his country of nationality. As such, the Tribunal finds that India is the applicant’s receiving country for the purpose of assessing his claims for protection.
There is no evidence before the Tribunal to suggest that the applicant holds any other citizenship or has any third country visas.
The issue in this case is whether the applicant is a refugee or a person who meets the criteria for complementary protection. The Tribunal also needs to consider whether the applicant is a member of the same family unit as a person who is either a refugee or a meets complementary protection.
Does the applicant have a well-founded fear of persecution?
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. This involves assessing the credibility of the applicant’s claims. The Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all their claims. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. However, the Tribunal is not required to accept uncritically any, or all the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.
The Tribunal found the applicant’s oral evidence to be vague, lacking detail and unconvincing.
The Tribunal had to prompt the applicant continuously throughout the hearing to solicit any details of his fear. He consistently referred to being in fear due to political forces however when invited to provide details, he continued to give generalised description of low-level persons and political members.
The Tribunal had to remind the applicant that in his written evidence he referred to an incident which happened and caused him fear. When invited to give detaisl he said “they” tried to hit him, and this happened in 2005 and 2006. When the inconsistency was put to him that in his written claims, he had referred to the incidents as happening in 2004, he simply adapted his evidence to say it happened in all those years.
In his written claims he stated that he was seriously injured, tried to put in a report to police however they would not accept his report, he claimed that his family were threatened.
At hearing he stated that his parents were not in any danger as they were old and not involved in politics. He referred to members of the political party trying to hit him.
The Tribunal would expect that if he had suffered serious injuries as outlined in his written claims and his family had been threatened and police refused to take his complaint that he would have been able to recall some detail of those events.
At hearing the Tribunal had to consistently prompt and ask for more details. The Tribunal had to remind the applicant of his claims. At hearing when it was put to the applicant that his claims were lodged as his other visa applications failed, he at first agreed that he wanted to do something in Australia and later said he could not comment.
The Tribunal only has the applicant’s own assertions before it. He put in his claim in in 2016 only after all his attempts at securing further visas to stay in Australia had failed.
He entered Australia in 2007 but his claim for protection was not lodged until 2016. The Tribunal would have expected that anyone who claimed the serious assaults he outlined in his written claims and fear of political persecution would have lodged earlier than nearly ten years after he arrived in Australia.
The Tribunal is not satisfied or persuaded on the scant evidence and lack of any detail that the applicant was a leader of any anti-Congress movement or organised any rallies. The applicant claimed he was at risk due to his leadership in his home state. He claimed he could not get a job, at hearing he stated he could not finish his education however when it was put to him that it appeared, he did finish his education he responded that was due to tuition.
The applicant’s parents still live in the same village and community where the applicant claims he is at risk due to his high profile. No harm has come to them. He claimed that this was because they were “old”. The Tribunal would expect that, if his enemies are so intent on revenge that they would still be wanting to seriously harm him, then his parents would have suffered or have been fearful. There was no evidence that his parents were at risk. The written claims had a general reference to his family being threatened however at hearing he indicated they were safe. In his claims he states he could not relocate as he does not speak other languages. At hearing he confirmed he could speak, read and write English and Telugu. His written application for protection lists that he speaks and writes Hindi.
After considering the evidence provided by the applicant the Tribunal does not accept he was a leader of a political party or movement, that his family were threatened, he could not secure an ID card or that police refused to take any reports due to the influence of his political enemies.
The Tribunal notes from independent country information that the party he supports, BJP, is a major political party which the current Prime Minister of India is the leader of. The Tribunal does not accept that the applicant is unable to get a job or a loan for any reason that he is aligned to the BJP party.
Considered overall the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm for any reason set out in s.5J(1)(a) if he goes to India. It is not satisfied there is a real chance he will suffer serious harm for any of the reasons claimed or for any other reason if he goes to India. Accordingly, it is not satisfied he has a well-founded fear of persecution. The Tribunal is therefore not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Does the applicant meet the complementary protection criteria?
As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, it has considered whether he may nevertheless meet the criterion for the grant of a protection visa under the complementary protection criterion.
As indicated above, the applicant claims he is at risk from members of the Congress and All India Majlis-e-Ittehadul Muslimeen (AIMIM) parties. As set out above the Tribunal has considered all the evidence in relation to this claim and does not accept on the evidence provided that he has a real risk of suffering significant harm at the hands of members of Congress, AIMIM parties or any political connections they may have. The Tribunal does not accept that he is a high-profile critic of political parties or the leader of any political party.
The Tribunal accepts independent country information that India is a functioning democracy with an independent judiciary. The Tribunal accepts that while there are challenges with its institutions, where there is unrest the authorities in India move to restore order, prosecute unlawful behaviour and protect its citizens.
The Tribunal does not accept that the applicant has been an outspoken critic of Congress and All India Majlis-e-Ittehadul Muslimeen (AIMIM) parties.
The Tribunal does not accept that the applicant will suffer significant harm due to being a Hindu who supports the BJP party. The Tribunal does not accept that he is unable to get a job or secure a financial loan due to being a supporter of the BJP party in India.
On the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Catherine Carney-Orsborn
Member

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

[2020] AATA 5515

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