1710679 (Refugee)

1710679 (Refugee) [2022] AATA 3630 (9 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1710679
COUNTRY OF REFERENCE:                   India
MEMBER:Rodger Shanahan
DATE:9 August 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 09 August 2022 at 4:16pm
CATCHWORDS
REFUGEE – protection visa – India – religion and political opinion – exposed political and financial corruption – harassment and attacks, and inaction by police – credibility – inconsistent claims and evidence and adverse information – previous visa refusals for third country and other names used not declared in visa applications or conceded in department interview – concession of adverse information at hearing – written claims conceded as false and new claim of fear of harm from money lender for business debt made – residential and work history – no documentary evidence provided – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), (2B), 65, 424A, 424AA
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 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 11 May 2017 to refuse to grant the applicants protection visas 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 19 May 2016.
The applicants appeared before the Tribunal on 26 July 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
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.
Claims and evidence
Protection Visa Application
The following statement was made as part of the protection visa application:
I belong to religious minority and was subject to harrasment by very powerful political people as I raised questions against the corruption of some local politicians
Stones were pelted at my home. My car windows were broken, my parents were attacked. Yes, I did try to get help from local police but police did not take any action. Instead of helping me, they were trying to make me a criminal.
Yes, I did try to get help from local police but police did not take any action. Instead of helping me, they were trying to make me a criminal. They can't be expected to protect me as I belong to religious minority which is treated badly by the party in power which believes in majoritarianism and i had raised my voice against their corruption. So i don't expect any protection from them. On the contrary, i will be killed by them.
I can't relocate until a new political regime comes into power. This regime which is in power is anti-minority.
AAT Hearing
The applicant was asked about a letter he was sent asking him to comment on adverse information, the response of which was due by 20 July 2022. Asked if he received this, he said that he had received two emails, on 5 and 6 July. He was told that one contained the letter in question. The applicant then said that it was in English and they asked an interpreter but he didn’t speak Gujarati.
It was put to him that he lived in an English-speaking country and seemed to manage so must have access to a Gujarati speaker so he could understand signs and the like. The hearing invitation was in English and he had attended at the place and time he was supposed to, so he must have some way of getting things translated.
He claimed that he showed the email to someone and they told him about the interview date/time. He was asked about the 6 July email and he agreed he received it. Asked if he got a Gujarati speaker to tell him what was in the letter, he said that he did. He said that his boss was Indian Punjabi and interpreted. Asked if there were any Gujarati speakers in [City] (where he lived), he claimed there were but he didn’t show them any DHA correspondence.
He was asked how he understood anything and was asked if Punjabi and Gujarati were close. He said that he could understand some Guajarati – there were 50 Gujarati speakers and 15 Punjabi speakers at work. Asked how he knew what DHA wanted if he never showed English letters to them – he claimed that he had a Google app in his phone and used that – he asked someone if it didn’t work. Asked if he knew what was in the letter he said that he did.
He said the letter asked about the different names and religion he had used when he applied for a [Country] visa. It was put to him that he never responded to it as he was asked to do. The information related to false Hindu identities they may have used between 2009-15 to unsuccessfully get visas to [Country], whereas they had entered Australia under Muslim names.
He agreed this was true – he did apply under a Hindu name in 2015 and a Muslim name in 2016. He had been trying to leave India, including in 2002 but was never successful. Asked his real name, he claimed that it was the name he had used in getting the [Country] visa. He was not the person he currently presented as, neither was his wife. He got the false passport from a Gujarati man he met while working at [Workplace] in Bombay – the man charged him 50 lak.
He was previously asked by DHA whether the current (Muslim) name was his real or false name. He agreed that it was false but he lied as he was in debt in India and here. He had no alternative but suicide so he lied. He was asked about his tourist and protection visas and what name he used and he said he used the name [the first applicant – given name]. It was put to him that lying to Australian officials and gaining benefits under false names were serious issues.
The Tribunal also had to rely on his oral evidence in the absence of any documentary evidence and it had to assess his credibility. If he had maintained a fiction to a range of people over a number of years it obviously became difficult to trust his truthfulness. He said there was a file against his name from 2008/09 in the police station in his village and the Tribunal could check. He was told the Tribunal did not check on such things and there was no way of confirming who the Tribunal was speaking to even if it did make such calls.
He claimed that if he returned to India, he would be killed by businessmen and debt collectors because he ran a [Business 1] and two vehicles full of goods came to him but his clients took all the goods and ran away without paying him. He couldn’t pay his suppliers and they started to threaten him and reported him to the police. He had proof he had run a business.
Asked if he had any other claims or it was just his indebtedness claim, he said that it was the debt. The suppliers had asked for the money straight away, so he and his wife ran away to Bombay and they both worked in [Workplace]. This was in 2012. In 2008 he had a small shop – in 2005 or 2006 there was a flood and he had to re-stock and there was another flood and he lost all his goods again and couldn’t re-pay the person who had loaned him the money to pay for the spoiled goods. The money-lender lodged a police report against him. He borrowed 25 laks in 2008.
He then sold his house and land in 2008 in his village for 8 laks only. He had no property there any more. After this, the lender started asking more harshly for his money. The applicant then began applying for a [Country] visa but it was refused in 2008/09/11. He worked in a [company] in 2011/12 and he met someone who introduced him to the [Business 1] which they became partners in. He still owed the person 17 laks but the client ran away with the stock from the [Business 1] and his partners blamed him for this loss.
Asked how he knew they were trying to kill him, the second-named applicant asked to speak and she said that her husband’s 2012 financial loss meant he ran away and they came to her and threatened her and the children for the money. They wanted the house as it was under her name. She ran away to Bombay with the children and met her husband. This was 2014 or 2015.
In 2014/15 they lived in Bombay – this was confirmed with them after some discussion. The first-named applicant was in the small village in 2007-08. They were in Ahmedabad from 2010-2012. After this he was in the [company] for a year working around Bangalore/Bombay. He was paid travel allowance and lived in Bangalore for two months but returned to Ahmedabad.
He had two children, but had never previously told the Australian authorities about them. He was asked why people would still be interested in him or know he returned to India given the events occurred more than six years ago and India was a large country. He claimed they were still contacting him through friends in Australia asking him for money. He told them he had no money or property in India or Australia. Asked how they knew he was here, he claimed that there were some people in [City] from the same village in India.
He was asked how they would know who he was given he had adopted a false identity in Australia. He said a few people were from his village who used to go to his shop in India and they recognised him.
He was asked why he tried to go to [Country] in 2002 and 2005 given this was prior to any of the problems he had mentioned. He claimed he began his business in 2006 and tried to go to [Country] in 2005 purely because he came from a poor family and wanted a brighter future. He agreed that he applied at that time for economic reasons.
In India he had two sisters. His children were being looked after by his parents’ family. It was put to him that he had never mentioned in his protection visa application that he had lived in other places in India, and had just stated that he lived in the one location for [Number] years. Asked why he never mentioned these other locations, he claimed that he was fearful and had to come to Australia. This was why he lied.
It was also put to him that he never mentioned his shop or had a [Business 1] in his protection visa application. He only stated that he owned a [Business 2]. He claimed that he paid someone to get all the documents and he returned his passport. It was put to him that the question related to the protection visa he submitted in Australia, and he claimed that he had to continue the lies from his visa application. The [Business 3] wasn’t under his name so he had no evidence.
It was put to him that he claimed in his protection visa that he belonged to a religious minority and was harassed by powerful political people. He was asked if this was true and he said that it wasn’t. He wasn’t from a minority religion – he wasn’t Muslim. He did not suffer from religious persecution. The claim in his protection visa was false.
He was advised about s 424AA and it was put to him that at his Departmental interview he said he was telling the truth and he was told the Department advised him it had information he had unsuccessfully applied for a [Country] visa six times under a different (Hindu) name. His fingerprints and photos matched with the bio data he had provided to Australian authorities in his Muslim name. He denied to the delegate that he had ever applied for a [Country] visa and that these weren’t his fingerprints. The concern was that he gave false information over years in applications, at interviews and he was only now admitting to it when he had no other choice.
He claimed that in his Departmental interview he hadn’t taken an oath on his religious book but he had today. Asked why he only told the truth if he put his hand on his religious book, he claimed that he had to lie because he was in debt. He had to stay here and get protection. He was advised that the Tribunal was concerned that he changed his story because he wanted to stay for economic purposes and he would say whatever he thought would get him a visa. He had been inconsistent in all of his claims, his residence, his employment, even his identity. He claimed that he could get proof of police reports, of the debts, whatever was required. He was not going back to India and would commit suicide at the airport if the Australian government tried to send him back there.
Under s 424AA it was also put to him that he had been asked at interview what harm he feared, he said that he came here because of corruption and that people would be paid wages and council would take part of their wages and he spoke about this corruption to someone called [Mr A] – because of this the mafia would know about it. This was yet another account of what harm he feared in India that was inconsistent with his other claims made at various stages. The concern was that he changed his story for different audiences. He said that at the interview he was trying to use the language of the Bombay Muslim community which is why he said it was the mafia but he was telling the truth under oath.
The second-named applicant said that she knew she came on a false identity but she had to leave. She had been stressed since being in Australia. They met lawyers who told them to stay here under their false identities otherwise they would be deported. It was put to them that the Tribunal found it hard to believe that lawyers would say this but if true they should make a formal complaint against them. She then said that she comes from a village and had no idea about how the outside world worked. She later clarified that she meant more learned members amongst their friends when she said ‘lawyers’.
The first-named applicant was advised that he had presented no medical evidence that he was suffering from mental health issues and if he was contemplating self-harm then he should seek assistance. He was advised that he would be given a contact number and the member passed the number to Lifeline to him and recommended he see someone on his return to [City]. He said he was sorry for what he said, but he was not leaving Australia.
He agreed that all of his accounts and government interactions were in his false name that he presented today. The second-named applicant said that when she came to Australia she was told she would meet an agent at the airport who would give her a passport. She thought she could change to her original name but everyone she met told her that she would have to stay here under the name on her passport.
The applicant said he had still not repaid his debt and he would be killed on return. It was put to him that his oral claims had changed regularly and the Tribunal didn’t necessarily believe that he owed anybody any money. He said he could get all the information about the person he owed money to or the Tribunal could look at it online. He couldn’t change his name back to his real one in Australia or else he would be sent back.
The second-named applicant reiterated that her Hindu name was her real name. They were told that they would be given one week to provide another interpretation of their first interview if they believed there was an error in it because he was pretending to be a Muslim speaking Punjabi. He advised that he wanted extra time to send letters from the debt collector and phone numbers. It was put to him that he had been here for six years and could have provided these earlier and he would be given no extra time. The difficulty in giving weight to evidence such as letters provided by him when he had entered Australia on fake passports was also pointed out, but he was told that he was free to provide them if he wished.
CONSIDERATION OF Claims and evidence
The applicants arrived in Australia [in] March 2016 on tourist visas issued to [the first applicant] and [the second applicant]. They have subsequently claimed that their real names are [Alias 1] and [Alias 2]. Given their credibility issues (see below) it is difficult to determine with absolute certainty their true names. Regardless, given their familiarity with the Gujarati language I am satisfied that they are Indian nationals and for the purposes of this decision, India will be used as their country of reference.
The applicants are a husband and wife aged [Age 1] and [Age 2] respectively. The wife stated that she relied entirely on her husband’s claims for protection. The husband changed his claim several times, however initially he claimed that he belonged to a religious minority, had exposed political corruption and would be harmed if he returned to India because the government was against minorities.
In considering an applicant’s account, undue weight should not be placed on some omission or confusion to conclude that a person is not telling the truth. Nor can significant embellishments or inconsistencies be lightly dismissed. The Tribunal is not required to uncritically accept any or all of the claims made by an applicant.

I found the applicant’s claims regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness and that he fabricated his claims in order to be granted a protection visa.
Credibility
The applicants arrived in Australia on passports bearing the names [the first applicant] and [the second applicant]. It was put to them previously at their interview that individuals with their biodata had turned up (unsuccessfully) applying for several [Country] visas under the names [Alias 1] and [Alias 2]. The same information was also put to them under s 424A letter. They did not reply to the letter at the required date.
I do not accept that their failure to reply to the latter was because of an inability to read English. The applicant stated that they were able to read (or have read to them) the correspondence that requested them to attend the hearing on the day and the time required, or that he used a Google app on his phone. I note that the applicant has responded to all other correspondence given to him and he stated that he filled out his protection visa application without the assistance of anyone else.
At the hearing they admitted that they had, in fact, applied for [Country] visas under those names and that they had knowingly entered Australia under false names using fake passports. I do not accept that he had no alternative to do this if he wished to leave, that he was fearful, or that they were poorly advised by people from their village. If this were the case they could have advised the Department in their protection visa application or when asked at his interview, or replied to the Tribunal’s s 424A letter.
Their failure to reveal their real identities until the weight of evidence made them unable to hide it any longer in the face of adverse information is, in the opinion of the Tribunal, indicative of a willingness to continue the subterfuge in an effort to gain advantage. If they had advised Australian authorities at the earliest opportunity about their true identities and the reason for adopting false ones, their explanation for the two identities may have carried more weight.
The applicants’ willingness to use false documents to enter this country, and to maintain the fiction regarding their fabricated identities when adverse information was put to them by an Australian immigration official, and then to fail to answer a written question about the same issue put to them by the Tribunal indicates a willingness to lie and use fake documents in pursuit of a positive immigration decision. This action inevitably impacts negatively on their credibility as witnesses.
Fear of Serious Harm
Given the applicant has changed his claim several times, I will deal with each of them in the one section. Firstly, I do not accept that the applicant belongs to a religious minority and that he was harassed by local politicians, talked about the corruption of politicians, had his home pelted by stones, had his window broken or that his parents were attacked. He was asked at hearing and admitted that these claims were false.
I also do not accept that the applicant would be killed on return to India because he owed money to businessmen and debt collectors as a result of floods requiring him to re-stock his village shop and due to clients running away with the goods from his [Business 1], that reports had been made to the police or that his wife was threatened by debt collectors.
The account relies entirely on the applicant’s oral evidence which, as I have noted above, lacks credibility. There are also a range of other inconsistencies apparent in his claim. In his protection visa application he noted that he had only lived at one address in India and had never mentioned the other work locations he had today. He also stated in his application that he owned a [Business 2] in India – there was no mention of having owned a shop or a [Business 1].
I do not accept that he did this because he needed to leave India due to his fear, that his name wasn’t on the shop lease so he couldn’t provide evidence, or that he had paid someone to provide his documents. He could have filled out his protection visa application correctly with multiple addresses and employment and still made his original claim, so it is hard to understand why he didn’t.
Because I do not accept that there re any debt-collectors or businessmen are after the applicant for money, it follows that nobody came to the second-named applicant and threatened her or the children for money, or that they wanted the house because it was under her name.
I also do not accept that the applicant would be killed by the mafia because he had exposed financial corruption. It was an oral claim made at the Departmental interview, during which he claimed that wage earners were having some of their wages taken from them and he exposed this practice by telling someone called [Mr A]. Because he had done this, the Indian mafia would find out.
This also relies on his oral testimony which I have found lacks credibility. It is also a different claim to that which he made in his original application (which he acknowledges was false) and at the Tribunal hearing. I do not accept that the inconsistency can be explained by the fact that there was a misinterpretation because he was trying to mimic the language of a Muslim from the particular part of India. He was given an opportunity post-hearing to provide a copy of the interview where the error allegedly occurred and provide an alternate interpretation, however none was forthcoming.
Other Issues
At one point the applicant stated that he would commit suicide before he would be made to leave Australia. No mental health claim was put forward by the applicant at hearing or prior to it, nor was any medical evidence presented. The applicant later apologised for saying this, the Tribunal provided him with the contact number for Lifeline and recommended that he call the number if he ever felt contemplating self-harm. Given the applicant’s lack of credibility and failure to provide any medical evidence regarding any mental health issues, I am satisfied that the applicant will not commit suicide if he were made to leave Australia.
As the applicant hasn’t raised any other claims to fear persecution and, having regard to all the evidence and his claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any s 5(J)(1)(a) reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicants were ever members of a minority group in India, owed money to businessmen or debt collectors, the first-named applicant had exposed corruption and was wanted by the mafia, or that he would would commit suicide if made to leave Australia I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicants will suffer significant harm.
As a consequence, I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, that there is a real risk that the applicants will suffer significant harm on the basis of these claims as set out in the complementary protection criterion set out in s. 36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
decision
The Tribunal affirms the decision not to grant the applicants protection visas.
Rodger Shanahan
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 3630

9 August 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction