1704145 (Refugee)

1704145 (Refugee) [2023] AATA 779 (23 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1704145
COUNTRY OF REFERENCE:                   India
MEMBER:Lilly Mojsin
DATE:23 January 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 23 January 2023 at 12:33pm
CATCHWORDS
REFUGEE – protection visa – India – particular social group – borrowers from non-state agents – political opinion – membership of Congress Party – refusal to contribute to the Patidar movement – 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 17 February 2017 to refuse to grant the applicants protection visas [PV] under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of India, applied for the visas on 22 July 2016. The delegate refused to grant the visas on the basis that the delegate was not satisfied that the applicants would suffer serious or significant harm on their return to India within a reasonably foreseeable future.
The applicants appealed that decision, attaching a copy of the Department decision to their review application.
The applicants appeared before the Tribunal, from [Town 1], on 10 August 2022 via Teams Video to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages.
I am satisfied that the applicants were given a fair opportunity to give evidence and present arguments. The applicants confirmed that they could hear and see. The Tribunal was able to interact with the applicants and interpreter. All parties were able to maintain appropriate communication throughout the proceedings.
I am satisfied that the hearing provided a real opportunity to be heard.
CRITERIA FOR A PROTECTION VISA
See annexure A
CONSIDERATION OF Claims and evidence
Only the 1^st applicant made PV claims.
In his PV application the 1^st applicant [applicant] claims that
§ He is an Indian citizen who arrived in Australia [in] June 2016.
§ He was a businessman in India and an ‘active member of Congress party’.
§ He ‘felt that [the] Gujarat government did not govern for the interest of all people’.
§ He ‘borrowed money from [a] private lender to start his own business’. He says he started investing in stocks around 2014, ‘when the markets were doing very well. He put small amounts into stocks and earned good returns on almost all his investments. His income was not very high and since the investment amount was relatively small, the profits earned were not significant. He lost all his savings and borrowed more money from a local lender when invested into a newly launched fund.
§ He continued to lose money. He says ‘since the beginning of last year, youths belong to Gujarat’s economically and politically influential Patidar or Patel community have been agitating for OBC status that would give them quotas in college admission and government jobs’.
§ A large rally was held in Gandhingar by The Patidar Anamat Andolan Samiti (PAAS).
§ A 21-year-old leader, [Mr A], asked him for a donation. He refused. He says, ‘I refused to support him and their movement’.
§ In response, he says ‘they looted and ransacked my house and threatened to kill me because I was against it and raised concerns against grave social issues arising from this movement. I was threatened with death if I continued against their movement. I was informed that further attacks on me and my property was continuing unabated’.
‘the money lender who is affiliated with BJP threatened to kill me’.
§ He says that ‘right now I am deeply disturbed and worried about my life. I continue to experience on going psychological effects and having difficulties in sleeping at night because of all the worry’.
The applicant attended an interview with the Department. Details are recorded by the delegate in the Department decision, attached to the PV application. During that interview, he re-iterated and expanded on his written claims. The delegate was not satisfied that he is a person in respect of whom Australia has protection obligations. His application for a Protection visa was refused.
At a Tribunal hearing held on 10 August 2022 the applicant said that he was born in India, in 1985 in Rampura village near Mansa. He is an only child. His mother is alive, his father died in 2020. He married in 2011. His wife was not working, they do not have any children.
He went to High school in [City 1]. After high school he got a job working in a business. He finished high school in 2005/6 and was farming then started business in 2010. He worked in a [specified] business. It is a [specified good]. He ran the business from 2014 in Ahmedabad. He was commuting daily from his village to Ahmedabad. It takes him [duration] by bus.
He ran his business from 2010 to 2014. He stopped running his business because he started investing in share market and was gaining a lot. He was gaining sufficient to support himself. The market went down in 2014 in India. He was finding it difficult to survive.
Asked how he supported himself he said that he was supported by a friend and was borrowing from them. He found it difficult so that is why he left India. In 2014 when he started facing loss and he tried investing those monies.
He tried to survive for 2 years so he came to Australia in 2016. He went to [Town 1] and he lives in [Town 1] now. He works on a farm work since he has been in Australia. His wife came with him. He came to Australia with a visitor visa. He has been financially assisting his and his wife’s family.
He still owes 10 lakhs, it is about $20 000 of his debt. He has repaid around 50 lakhs about $100 000.
Asked why he does not want to return to India he said that he does not want to go back, his friends have threatened to kill him as he owes them money. I put that he has paid them large % of the money owed.
His friends are also in the Patidar movement, he refused to give them money. He borrowed money from [Mr B], [Mr C] and [Mr D]. They gave it to him as their friend. It was in December 2014. They received property documents of the house and land in the village. I asked how he is able to give the property deed of his parent’s property to someone to whom he owed a debt and he said that in India parents are responsible and so his parents agreed to hand the deeds over.
In regard to his claim that his 3 friends demanded money from him for the Patidar movement I put that they knew he did not have any money but they demanded money from him. I suggested this was implausible. He said that they were asking him to donate when he invested in the share market. He borrowed 70 lakhs in December 2014 whereas they asked him to donate to Patidar movement in November 2014 and they then started to pressure him. They used to tell him to give money or they will “kick you out of Patidar”. It is a reservation movement and students, it was led by [Mr A]. He refused to support them.
The applicant said that he had another loss in the share market in March 2015. He lost all the money. He told them that he does not have any money left and cannot repay so they took property documents then. He was running around and moving to different villages trying to earn money and so came to Australia. He came to Australia to repay them.
He still owes 10 lakh plus interest, it is around 30 lahks. Asked if he communicates with them about the money owing he said that he does not have anything in writing but they tell him via the phone. Sometimes around once in 6 or 12 months they tell him.
Asked if there was anything else he feared harm for in India, he said no it is just them they are threatening to harm him.
Asked why he cannot borrow monies in India to repay them, he said in India when you borrow you have to pay interest too. Asked why he cannot go to a bank and borrow against title deed. He said that no because they have threatened to hurt him for the money.
Asked if anything else happened to him in India, he said Patidar movement that is what happened. He said that he did not want to support it. He is under stress because of his financial situation, he would like to stay in Australia so that he can earn money and once he repays the money, he would go back.
I put to him that his claims about being threatened by phone and attacked was not true. He said that it is true he had all those issues
I put to him that I asked him previously if anything else happened to him and he said no. He responded that he forgot about the Congress Party, he is unable to remember because of the mental stress. The financial stuff and whatever is happening in his life.
I put that he was not attacked physically in India– he agreed he was not.
I put that the only threats he received were about repaying the loan. He said that it is a financial thing and he was a Congress worker and he was not involved in Patidar movement.
I put to the applicant that there was no information available to suggest that in Gujurat in June 2015 Congress party members or supporters were being attacked for not contributing to the Patidar movement. He said it did happen, but he does not have any evidence of that.
I put only threats made were for his finances and that he could report the matter to the police. He agreed.
I summed up his claims for him. I confirmed that he claimed that in December 2014 he borrowed money from his 3 friends, he could not repay the monies and in March 2015 they obtained his parent’s property title deeds. He obtained a visitor visa to Australia in order to come to Australia to work. He has repaid a large amount of the loan, he is in contact with the lenders by phone who advise him how much he has left to repay. He wants to remain in Australia in order to work and repay the loan. He fears they will harm him if he does not repay them. He is able to go back to India once the debt is repaid. He agreed those were his claims and said that he can try to go back if there are not any other issues about the Patidars. I discussed the Patidars and explained that there is not the same amount of agitation about the Patidars as there was in 2015-2019 and [Mr A], its leader who previously joined Congress, has now joined BJP.
Independent Evidence
By way of background, in 1981, the Government of Gujarat, introduced the reservation for socially and economically backward castes (SEBC) and the Other Backward Caste (OBC) status to invoke affirmative action which provides reserved quotas in education and government jobs. In Gujarat, 27% of the seats in government and education are reserved for OBC, 7.5% for Scheduled Castes (SC) and 15% for Scheduled Tribes (ST) for a total of 49.5% of all seats.
According to DFAT[1] OBC is the Official term used by the Government of India to classify castes that are educationally or socially disadvantaged under the constitution, and do not fall under SC or ST.
3.149 Reservation or quota policies have been unpopular with upper castes and dominant groups, including the Jats, Marathas and Patels or Patidars. …
…………
In Gujarat, the Patels, a dominant caste, have sought the removal of quotas for SCs/STs, declaring them unfair and unmeritorious. The Patels have sought OBC status and have engaged in protests (at times violent) over the issue. To date, none of these groups has been afforded OBC status.
[1] DFAT Country Report India 10 December 2020
Patidars represents 12.3% of the population of Gujarat. Since the beginning of July[2] 2015, youth of the Patidar or Patel community have, with the support of one Patel organisation called Sardar Patel Sevadal, started agitating demanding OBC status to get reservation status in government jobs and higher education.
[2]
Starting in July 2015, the people of India's Patidar community, seeking Other Backward Class (OBC) status, held public demonstrations across the Indian state of Gujarat. The government announced offers of scholarships and subsidies to general category students on 24 September 2015 and a 10% quota of spaces reserved for economically backward classes in April 2016. The 10% reservation was quashed by the Gujarat High Court in August 2016. The agitation lingered on for two more years. In January 2019, the Parliament of India amended the constitution granting maximum 10% reservation to the Economically Weaker Sections of the society. The amendment was challenged in the Supreme Court where its validity was upheld in November 2022[3].
[3] Patidar reservation agitation - Wikipedia
DFAT[4] reports that India’s constitution provides for freedom of speech and expression, freedom of assembly, and the right to form associations (Articles 19-22). The Government of India can impose reasonable restrictions to these freedoms in the interests of sovereignty and integrity of India, national security and public order, and to maintain decency and morality. India has a diverse political landscape, which represents different ethnic, religious, secular and political interests. Political parties often court ethnic, religious and caste-based minorities for their ability to deliver ‘vote banks’. Observers assess the government has sought to align Indian nationalism with Hindu nationalism. The BJP and its rival the Indian National Congress (Congress) party are the largest among the political parties. Since independence, the Congress party has dominated the national movement for ending British rule and has formed most of India’s governments.
[4] DFAT Country Report India 10 December 2020
The BJP won the most recent elections in Gujarat. DFAT assesses leaders and members of opposition parties do not face official or societal discrimination on a day-to-day basis. 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, given the scale of the Indian election process, elections are conducted peacefully. DFAT assesses people who publicly express views critical of the government face a moderate risk of official discrimination. This may include arrest, harassment and prosecution.
REASONS AND FINDINGS
On the basis of their Indian passports, I accept that the applicants are nationals of India and not nationals or citizens of any other country or have a right to enter and reside in any country other than India. Therefore, I find that the applicants are not excluded from Australia's protection by subsection 36(3) of the Act. I also find that India is the applicants’ “receiving country” for the purposes of s.36(2)(aa).
When assessing credibility, the Tribunal is mindful of the difficulties often faced by asylum seekers. The process of seeking protection and the giving of evidence can be stressful and consequently asylum seekers may have difficulty providing their evidence in a concise and contextual manner. Sometimes timelines can be inconsistent as a result. A person should not be required to provide an unrealistic degree of precision and detail in statements and an experience of trauma may affect a person's ability to recall specific events and details. The benefit of the doubt should be given to asylum seekers who are generally credible but who are for instance, unable to otherwise substantiate all of their claims.
The applicant is from Gujarat. In his PV application he said that he was a businessman and an active member of the Congress Party. He claims that he borrowed money from a private lender, lost all his savings and borrowed more money from a local lender and invested into a newly launched fund. Youths from the Patidar or Patel community were agitating for OBC status. A large rally was held in Gandhingar and he was asked for a donation by [Mr A]. He refused. They looted and ransacked his house and threatened to kill him. He was informed that the moneylender who threatened to kill him was affiliated with the BJP.
In his PV application the applicant claimed that he was a businessman, an active Congress Party member. He borrowed money from a private lender to start his own business and started investing in stocks around 2014. He lost all his money. [Mr A], leader of the Patidar Anamat Andolan Samiti (PAAS) asked him for money and when he refused his house was looted and he was threatened to be killed. The money lender was affiliated with the Bharatiya Janata Party [BJP] and threatened to kill him.
At a Department interview, as outlined in the Department decision, the applicant claimed that in addition to the Patels and BJP threatening him with his life because he was a member of Congress, he was twice threatened multiple times on the phone and he was hit twice. This occurred because he did not support the Patidar people. He did not go to the police or hospital and left India. He has received threats via his mother since being in Australia.
At the Tribunal hearing the applicant told the Tribunal that his claims were that in December 2014 he borrowed money from 3 friends [lenders] who are in the Patidar movement. He could not repay the loan and in March 2015 the lenders obtained the property title deeds to his parent’s property. He said that he was running around and moving to different villages trying to earn money and so he came to Australia, on a visitor visa, to work and to repay his loan. He has repaid a large amount of the loan. He is in contact with the lenders by phone who advise him how much he has left to repay. He wants to remain in Australia in order to work and repay the loan. He fears the lenders will harm him if he does not repay them. He is able to go back to India once the debt is repaid.
I accept that the applicant is a Patel. I accept that the applicant lost money on the share market and had to borrow money from 3 friends, lenders, who are Patels. I accept that he fears harm from the lenders on his return if he does not repay the loan balance. I accept that the applicant was a member of a particular social group, ‘borrowers from non-state agents’. I do not accept that he fears harm from the lenders for his membership of the group but because of what he has done, not repay the loan.
At the Tribunal hearing, when asked about what had occurred to him, the applicant did not claim to have been harmed for his membership of the Congress Party. I asked the applicant, after discussing his losses on the stock market and his fear of the lenders was there anything else that he feared harm for in India he said “no” it is just the lenders, they are threatening to harm him. When put to the applicant, later in the hearing, that he had not advised the Tribunal when discussing his claims of fear of harm that he had omitted to claim a fear of harm for his membership of Congress Party, a claim he had made in his PV application, he responded that he had forgotten about the Congress Party due to stress. I accept that attending a Tribunal hearing can be stressful. The applicant did not express any concerns during the hearing that he needed a break or that he was feeling stressed. I am not persuaded that this omission was due to stress. I do not accept that the was an active member of Congress Party.
Further, I have no independent evidence before me to suggest that members of Congress party or Patels are harmed because they do not support the Patidar movement by either BJP members or the leaders and followers of the Patidar movement. I am of the view were it the situation it would be reported in independent sources such as DFAT, US State Department reports and Amnesty International.

Additionally, in regard to his claim that he had been threatened and harmed because he did not contribute to the Patidar movement, when put to the applicant that it was implausible that the lenders would demand money from him for a contribution because he was at that time their debtor, he responded that he borrowed the money in December 2014 but they had asked him for money in November 2014. I do not accept his explanation. The applicant initially told the Tribunal that the contribution money was demanded in December 2014. I am of the view it is a late invention made in order to overcome the information provided.
As for his claims of being threatened by phone and attacked because he did not contribute to the Patidar movement, he subsequently agreed that he was not physically attacked in India. I find therefore that the applicant was not at physically attacked in India.
In light of the above, I find that the applicant was not attacked or harmed in India for his membership of Congress Party, his refusal to contribute to the Patidar movement, being a Patel and his inability to repay his debts. As the applicant was not harmed in India it follows that I find the applicant was not threatened, attacked, had his property looted or was harmed by the BJP because he was a member of Congress Party or by Patidars because he refused to donate to the Patidar movement. I also find that the Patels and BJP did not threaten him with his life or that he was ever threatened on the phone and or that the was physically harmed because he did not support the Patidar people. As he was not threatened or harmed when he lived in India I do not accept that since he has been in Australia his mother or anyone else was threatened. I find that the applicant came to Australia in order to work and pay his debts.
I have considered the applicant’s claims singularly and cumulatively. I find that the applicant did not leave India fearing harm for a refugee reason but left India because he owed money and has an outstanding debt.
I am required to assess whether the applicant will suffer serious harm on his return to India, within the reasonably foreseeable future for a refugee reason.
I accept that the applicant is a Hindu and a Patel who borrowed monies and continues to owe a debt to the lenders.
The applicant fears he will be harmed if he does not repay the debt owing prior to his return to India and has stated that he is able to return once the debt is repaid.
The applicant has not claimed that he has expressed his view that he does not support or is opposed to the Patidar movement. I have not found independent evidence to suggest that Patels are harmed because they do not support the Patidar movement by either BJP members or the leaders and followers of the Patidar movement. I am of the view were it the situation it would be known to independent sources, such as DFAT, UK Home Office and US State Department Reports on Human Rights. Therefore I find that there is not a real chance that the applicant will suffer serious harm for not financially contributing to the Patidar movement or not supporting the Patidar movement within a reasonably foreseeable future on his return to India.
The applicant does not claim to be a party worker, political leader or a person who has expressed a view critical of the government. He does not claim to have had any political involvement or profile in Australia. I find that there is not a real chance that the applicant will suffer serious harm in India, within a reasonably foreseeable future for his political opinion or implied political opinion.
I accept that the applicant fears harm for non-payment of his debts. He fears harm from non-state agents. Were the applicant to be harmed for non-payment on his debts, I find that such harm would not be for reasons of his membership of a particular social group ‘borrower from non-state agents’ but because he had not repaid his debts in full.
I have considered the applicant’s claims singularly and cumulatively. I find that the applicant does not have a real chance that, if he returned to India he would suffer persecution for one or more of the reasons mentioned in paragraph 5J(1)(a). I find that the applicant does not have a well-founded fear of persecution for these reasons.
Accordingly I find the applicant does not satisfy s.36(2)(a) of the Act.
I am required to assess whether there is a real risk the applicant will suffer significant harm on his return to India within a reasonably foreseeable future.
The applicant is an ethnic Indian, a Hindu, a Patel. I accept that he borrowed money from 3 friends and is fearful of harm in the event that he has not repaid the debt on his return to India. I accept that the applicant has been working in Australia and repaying his debt. I am satisfied he still owes money.
Capital punishment[5] in India is a legal penalty for some crimes under the country's main substantive penal legislation, the Indian Penal Code, as well as other laws. The applicant does not claim to have committed any crimes in India. I therefore am not satisfied there is a real risk that the death penalty will be carried out on him, within the reasonably foreseeable future.
[5] DFAT Country Report India 10 December 2020
The applicant has not claimed to have committed any criminal offences that indicate there is a real risk that he would be imprisoned, tortured, killed or subject to other ill-treatment. I find that there not a real risk that the applicant will suffer torture or cruel or inhuman or degrading treatment or punishment within a reasonably foreseeable future on his return to India.
I accept that the applicant may not be in position to repay his debts on his return. The applicant has acknowledged that he would be able to report any attacks on him by the lenders to the police. I am not satisfied that any difficulty the applicant may be subject to, on return to India, would amount to significant harm.
Having considered all of the applicants’ claims, individually and cumulatively, I am not satisfied that the applicants will be arbitrarily deprived of life, the death penalty will be carried out on them, they will be subjected to cruel or inhuman treatment or punishment or they will be subjected to degrading treatment or punishment if they return to India now or in the reasonably foreseeable future.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that either 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 applicants do not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Lilly Mojsin
Member

ANNEXURE A
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.
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.
…

[2023] AATA 779

23 January 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction