1705872 (Refugee)

1705872 (Refugee) [2022] AATA 4748 (6 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1705872
COUNTRY OF REFERENCE:                   India
MEMBER:David McCulloch
DATE:6 October 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 October 2022 at 11:08am
CATCHWORDS
REFUGEE – protection visa – India – not-attendance at tribunal hearing – social group – homosexual – harassment due to incident of homosexual activity – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 426A, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 dependants.
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 2 March 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of India, applied for the visa on 25 August 2016. The applicant attended an interview with a delegate of the Department on 22 February 2017. The interview was assisted by an interpreter in the Punjabi and English languages. There was an independent observer from Settlement Services International who observed the interview for the purposes of ensuring fair, appropriate and reasonable treatment of the applicant. The delegate refused to grant the visa.
The applicant was invited to attend the hearing of the Tribunal on 6 October 2022 at 9.30am. The Tribunal also sent two SMS reminders of the hearing to the applicant’s mobile phone number five days and one day before the Tribunal hearing. The applicant provided no response to the hearing invitation and did not appear before the Tribunal at the time and place scheduled, nor did he make contact with the Tribunal to inform it of any changes to his contact details or reasons why he was unable to attend.
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 (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. The Tribunal has before it the DFAT Country Information Report – India, 10 December 2020, a copy of which was provided to the applicant in advance of the hearing.
CONSIDERATION OF Claims and evidence
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant arrived in Australia [in] May 2016 on a Tourist visa. He applied for an XA-866 Protection visa on 25 August 2018.
The following information is apparent from the application for protection forms. The applicant was born on [date] in [Punjab], India. The applicant is Sikh of Lubana ethnicity who speaks, reads and writes Punjabi. The applicant also reads and writes English. The applicant has never married nor been in a de facto relationship. The applicant’s parents and one sister reside in India and he is not in contact with them. The applicant is in contact with his cousin [in] India. His uncle[resides] in Australia. The applicant lived at one address in Punjabi, India from birth until May 2016. The applicant attended primary and secondary school from 2006, graduating from [High] School in 2016. At the time of application, the applicant had never been employed.
The applicant provided a statement setting out his claims for protection as follows (not corrected for spelling or grammar, headings and introduction ommitted):
1.     My name is [deleted]. I was born in [Punjab] India on [date] in a Sikh family.
2.     My father's name is [deleted] and Mother's name is [deleted]. I have one [sister].
3.     My father is [an occupation]. He is a respectable person in the society. My father is involved in social and religious activities in our area and related to local Sikh temple.
4.     I came to Australia [in] May 2016. Before coming to Australia I was a full time student. I read up-to class [grade]. I did not complete my study. I withdrew from the course. I studied in [Primary] School for my primary education until March 2006 and for my secondary education I studied in [High] School until May 2016.
5.     I left India for my safety and also to escape harassment for my homosexual activities. I wish to inform you the facts what forced me to leave India. Two boys named [deleted] was studying in our school and a few years elder than me. They live in our neighbouring village. I knew them from School. They made friendship with me. Sometimes they used to take to restaurant for taking food such as afternoon tea, dinner and for cinema as well. I trusted them well. After school we used to meet together and spent couple of hours once or twice a week. In January 2016 I was coming from school in the evening. They met me on my way not far from my school. They told me to go with them. They took me at the corner of a playground. We talked together for a while asking me about my studies. It became dark. Gradually they convinced me to be involved in homosexual activities with them. When we involved in such activities some people of our village who were coming from market detected us on the spot.
6.     [The two boys] ran away. I was caught red handed. I was taken to my father. They disclosed everything to my father. My father physically abused me. Within few days this news spread in the village. My school mates came to know of this incidence. My teachers also knew about me. From that time everyone started to hate me, harass me and did not talked to me. Students in school stopped talking to me. I was separated from other students. I had been suffering harassment in my daily life. I was discriminated for my homosexual activities. I had been suffering mentally. At one stage I felt not to go before other people and stay at home.
7.     I was harassed by the people of my area. I was not able to live my life freely. I was not be able to go to temple. Our priest was not accepting me in the temple. My family members was not behaving me well. They believe my activities have defamed them in the society. It will be difficult for my family member to recover their fame in the society. I had been suffering mentally and psychologically. I was also suffering from depression.
8.     Since March 2016 I stopped to go to school. I did not find comfortable to go to school. I found everyone tease me. No one is friendly to me. I found teachers were not co-operative with me. It was very difficult for me to cope with that situations. So I decided not to go to school. I became very sick and my family decided to send me overseas.
9.     If I return to India I shall experience similar situations. I shall be abused by the local people and even by my family members. As I am identified by everyone as homosexual, I shall not be able to study, to lead a normal life and also I shall be separated in the society. As my family members were not co-operative with me, I was not able to seek help from anyone.
10. I was only [age] years of age when I left India. It is very difficult for a boy like me to move to another place for my safety and security. In my age I shall not be able to find a job for my living. Even if people of that area come to know of my homosexuality I shall be abused, harassed and discriminated in that area because homosexuality is not acceptable anywhere in Indian society and also Sikh religion.
11. Gradually I became very sick. My father took me to doctor. Doctor advised my father considering my well-being I should be sent away for this society where I shall be able to live a comfortable life. I shall not be harassed by any one. Then my father decided to send me overseas. From that time he was trying to find opportunities to send me overseas. Finally he came to know that one person of our area [who] will be able to arrange a visa for me to go to Australia which will cost large amount of money. My father met him to discuss my circumstances. Finally both agreed to try for my visa and my father consented him to go ahead to arrange a visa for me. He arranged an Australian visa and then I came to Australia.
12. My studies were interrupted for my involvement with homosexual activities. I was harassed, persecuted and discriminated by the members of my family, society and the authority and finally I was forced to leave India to escape persecution.
13. I have to leave India for being detected in the involvement of homosexual activities. The activities are not accepted legally in India and the authority does not support this kind of activities. I did not seek any help from authorities. I was not accepted in any social activities, banned to visit temple, teased by the community people and singled out as homosexual by the members of the village. My family also has been suffering for the cause of my homosexuality. I was physically assaulted and mentally tortured by my parents. The Sikh religion does not acknowledge the homosexual activities. I was humiliated by the religious and social leaders. I experienced hurdles in every step of my life. I left India to escape abuse and live a normal life with self-respect.
14. I left India to escape harassment for my involvement in homosexual activities. My fear is well founded. I shall be discriminated if returned to India. It is for your information that homosexuality is totally unacceptable socially and nationally in India. It is considered as unlawful activity. Considering my personal circumstances and well-being after returning India I have decided to lodge an application for a protection visa.
15. I request you to give a sympathetic consideration to my application and grant me a Protection Visa in Australia that would save my life and give me the opportunity to live a normal life.
Independent information
The 2020 DFAT report on India provides the following information:
Sexual Orientation and Gender Identity
3.155 Local sources told DFAT lesbian, gay, bisexual, transgender and/or intersex (LGBTI) persons lack protection, have poor education and health outcomes, and face intolerance, abuse and violence in their daily lives. Attitudes towards and experiences of LGBTI individuals can vary, in part due to disparities between urban and rural India, language, caste, class and gender. According to a 2019 International Commission of Jurists (ICJ) report, LGBTI persons face extensive rights violations in relation to:
-housing and within the home, including discrimination in the rental market, denial of housing, segregation into poorly resourced neighbourhoods, violence and harassment (from landlords, neighbours, family and police), and homelessness;
-all stages of the employment process, including unequal access to educational opportunities, discrimination during the recruitment process, discriminatory and gendered work conditions, and lack of job security; and
-access to public spaces, including harassment, physical and verbal violence, denial of access, invasive surveillance and discriminatory pricing.
3.156 In urban areas, there are reportedly venues for the LGBTI community to meet and socialise, although not openly. In 2016, an online dating platform for the LGBTI community, ‘Amour Queer Dating’, was launched. There are also groups focused on support and advocacy for LGBTI women in Bangalore (ASQ), Mumbai (Labia), Kolkata (Sappho for Equality) and Chennai (Sahodaran) and trans-specific groups including Sampoorna, Tweet Foundation and Telangana Hijra Trans Intersex Samiti.
3.157 The constitution (Articles 14 and 21) guarantees the right to equality before the law and equal protection under the law. Article 15 prohibits discrimination on the grounds of sex. In 2014, the Supreme Court of India ruled the rights and freedoms of transgender people were protected under the constitution, including the right to self-perceived gender identity in the absence of gender reassignment surgery. In August 2020, the Government of India formed a National Council for Transgender Persons, to advise on relevant policy and legislation affecting transgender persons.
3.158 The Indian Armed Forces ban LGBT persons from openly serving. In December 2018, a member’s bill was introduced into parliament to amend the Army Act, (1950), Navy Act, (1957) and the Air Force Act, (1950) to allow LGBT persons to serve in the Armed Forces. In 2019, however, the Indian Army Chief General stated homosexuality would continue to be considered an offence in the armed forces. Under the Army Act, any person found guilty of unbecoming or, disgraceful conduct of a ‘cruel, indecent or unnatural kind’ can be imprisoned for up to seven years. Despite not detailing such conduct explicitly, the euphemistic language in the Act is interpreted to include same-sex sexual relations.
3.159 According to Human Rights Watch (HRW), LGBTI youth face harassment and bullying, and often skip school or drop out altogether to avoid humiliation and violence. HRW claims educators lack training to respond to the needs of LGBTI students and, at times, participate in harassment against them. In 2019, UNESCO reported bullying, harassment and violence resulted in the denial of educational training opportunities to LGBTI students. According to ICJ, barriers to LGBTI students’ participation include gender specific uniforms, lack of access to toilets and difficulties in obtaining accurate identity documents. ICJ cited cases of teachers beating and berating ‘effeminate’ male students and forcing transgender students to sit separately from their peers.
Gay men
3.160 Until a September 2018 Supreme Court judgement, section 377 of the Penal Code criminalised homosexuality. In 2018, however, the court decriminalised adult consensual same-sex relationships and declared section 377 unconstitutional. Sources told DFAT attitudes towards gay men have not changed, despite the change in the law. Sources claim police still use many ‘nuisance laws’ to arrest, harass, manipulate and bribe gay men whose families are not aware of their sexual orientation. Sources told DFAT it is possible for middle class, educated gay men to relocate in India. However, this had to be weighed against the concept and custom of family ties, which were hard to break. Local sources claim while there are ‘gay nights’ in a few bars, there are no safe spaces for gay men.[1]
[1] DFAT, Country Information Report – India, 10 December 2020, pp. 46-47.
…
INTERNAL RELOCATION
5.29 India has a long history of internal migration; however, in practice, it remains predominantly intrastate rather than interstate. The complementary rights to reside and move freely throughout India are found in Articles 19(1)(d) and (e) of the constitution. Article 19(1)(d) guarantees all citizens of India the right to move freely throughout the territory of India including from one state to another or from one place to another in the same state. This right can be curtailed under the ‘reasonable restrictions’ in Article 19(5); that is, in the interest of the general public or for the protection of the interest of any ST. Article 19(1)(e) gives every citizen the right to reside and settle in any part of the territory of India, subject to the reasonable restrictions in Article 19(5). The freedom of movement and residence may be curtailed and suspended during an emergency. Equally, any restriction which maintains public peace or safety can been considered in the interests of the general public.
5.30 According to the World Bank, while internal migration in India grows, interstate movement remains low. Drawing on the 2011 census (latest figures), internal migrants numbered 450 million, an increase of 45 per cent over the 309 million recorded in 2001. Internal migrants as a percentage of population increased from 30 per cent in 2001 to 37 per cent in 2011. However, the nature of movement remains relatively unchanged from the 2001 Census. The bulk of movements (62 per cent) were within the same district, with 26 per cent between districts within the same state. Only 12 per cent of movements were across state borders. Interstate migrants represented 4 per cent of India’s population in 2011, a rate almost unchanged since 2001. Women made up the majority of intra-state migrants (63 per cent) with over half attributing marriage as the reason for migration. However, such migration tended to be a change in the usual place of residence across the village and town boundaries. Urban-to-urban migration remained the largest migration flow (46 per cent). Rural-to-urban migration flows remained stable and were roughly half of urban-to-urban flows (22 per cent). India’s census data does not capture seasonal, temporary and circulatory migration (mostly for employment) which is around 13.6 million persons annually and seven times larger than permanent/semi-permanent migration.
Limits to Internal Relocation
5.31 According to the World Bank, factors that may limit interstate relocation include non-portability of entitlements, preferential norms in educational institutions, and domicile requirements for state government jobs. Other factors, some historical, that limit mobility/interstate migration include: the prevalence of the caste system; traditional values; the diversity of language and culture; exploitation and political exclusion; lack of education; limited access to financial services and resources; and predominance of agriculture and semi-feudal land relations in India.
5.32 Inability to access social protection is a further deterrent. In practice, difficulties in procuring registration documents including proof of residency and legal tenancy can restrict internal migrants’ access to public services including health and education and social security programs. These difficulties include complicated regulations and administrative requirements, and act as a disincentive, especially for temporary and seasonal migrants. Such people often face barriers in obtaining subsidised food and housing until they can establish identity and local residence.
5.33 The absence of informal social networks that would normally assist with accommodation, employment and informal social protection may also limit relocation. Where local language and culture is different from region of origin, Indian nationals may also face harassment and political exclusion. Multiple sources told DFAT relocation in India is not straightforward, and many cultural, socio-economic and gender-based obstacles, in addition to language differences, prevail.
Relocation of single women, women with children or victims of family violence
5.34 The Aadhaar Card provides access to government social welfare services, benefits and subsidies (see Unique Identification Numbers (UID) / Aadhaar) and its introduction may assist entitlement portability. However, requirements to provide details of a husband’s or father’s name can exclude single women, single women with children, and domestic violence survivors from government services and accommodation. While income tax provisions do not directly require women to use their husbands’ or fathers’ names, the Aadhaar card and passport both have this requirement.
5.35 Local sources told DFAT safe relocation for women and girls fleeing domestic or family violence within Indian states or elsewhere in India is practically impossible. There is limited availability of shelters/centres and, even where they are available, it is important to consider the situation a woman will face upon leaving such centres, where social support networks are unlikely. According to local sources, some women fleeing domestic violence stay in shelters for more than 10 years. There is little ability of state and NGO resources to reintegrate these women into the community. Sources in West Bengal told DFAT that, due to a shortage of women’s shelters, women from other states seeking accommodation in shelters were repatriated to their home states.
5.36 Local sources advised relocation would generally be possible for a single woman without children, who was able to access accommodation and support networks, or who was educated, skilled or wealthy enough to support herself.
Relocation based on sexual orientation
5.37 Local sources told DFAT middle-class, educated, same-sex oriented males would be able to relocate internally to major cities in India more easily than could same-sex oriented males who are poorer or less well educated. DFAT does not have specific information on the ability of same-sex oriented women to relocate within India, but notes factors such as education level, socioeconomic status, financial independence and location (rural or urban) will impact on an individual’s ability to relocate safely (see Sexual Orientation and Gender Identity).
5.38 DFAT assesses individuals seeking protection from discrimination or violence may be able to access internal relocation options, although these may be more limited for some individuals depending on their personal circumstances. In particular, DFAT assesses women, including single women with children or those fleeing family violence, have limited access to internal relocation options.[2]
[2] DFAT, Country Information Report – India, 10 December 2020, pp. 64-65.
Findings and assessment

Based on the evidence before it, the Tribunal finds that the hearing invitation was sent to the last address for service provided in connection with the review and, in the circumstances, pursuant to s 426A without taking any further action to enable the applicant to appear before it.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or 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 him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
The Tribunal is satisfied that the applicant is a citizen of India and accordingly his claims will be assessed against India.
The Tribunal hearing is the key mechanism by which applicants are questioned in relation to claims and very significant in the key issue of determining credibility of claims. This is particularly the case in this matter given that, in the interview with the delegate of the Minister, there was very limited exploration of the applicant’s sexuality and the harm that he suffered as a result in India.
In the absence of the applicant attending the Tribunal hearing it is unable to be satisfied as to his core claims for protection.
The Tribunal is not satisfied that the applicant is homosexual. The Tribunal is not satisfied that the applicant was discovered in India undertaking sexual activity with other boys and subsequently ostracised by his school, friends and/or family as a result. The Tribunal is not satisfied that the applicant came to Australia as [an age]-year-old boy because of seeking to escape negative attitudes and actions in India as a result of his sexuality being discovered. The Tribunal is not satisfied that the applicant would identify or be identified as homosexual in India or act in any way that would lead to view by others that he is homosexual.
Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for the reasons claimed.
In summary, the Tribunal is not satisfied that the applicant has well-founded fear of persecution for a reason set out in s 5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real chance of him suffering significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
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.
…

[2022] AATA 4748

6 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction