1710850 (Refugee)

1710850 (Refugee) [2021] AATA 4142 (11 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1710850
COUNTRY OF REFERENCE:                   India
MEMBER:Amanda Paxton
DATE:11 October 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 October 2021 at 8:07am
CATCHWORDS
REFUGEE – protection visa – India – particular social group – attacks by developers for land acquisition – physical assault – fear of killing – state protection – internal relocation – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 24 April 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of India, applied for the visa on 27 January 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant is a person in respect of whom Australia has protection obligations.
On 22 May 2017, the applicant validly applied for a review of the delegate’s decision to refuse his protection visa, attaching the delegate’s decision and notification of the Department decision.
The applicant appeared before the Tribunal on 9 September 2021 to give evidence and present arguments in relation to his application. The Tribunal exercised its discretion to hold the hearing by MS Teams video as the hearing was held when COVID-19 pandemic restrictions were in place. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant.
The video was clear throughout the hearing, and the applicant was responsive and his answers were generally appropriate to the Tribunal’s questions. The Tribunal was satisfied that the applicant was able to give evidence and present arguments to the Tribunal throughout the hearing.
The hearing was primarily conducted in English, with the occasional assistance of a Punjabi interpreter, at the request of the applicant. The applicant was not represented at the hearing. The applicant indicated he was satisfied he was able to give evidence and present arguments.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Credibility
When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.
The mere fact that a person claims fear of persecution for a 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. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim.[1] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[2]
[1] Migration Act 1958, s.5AAA.
[2] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70.
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[3] Care must be taken not to exclude from consideration the totality of evidence where a portion of it could reasonably have been accepted.
[3] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J, p.482.
If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[4] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.[5]
[4] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].
[5] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J of the Act in India and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality
The applicant claims to be a national of India. He has provided the Department with a copy of the bio-page of his Indian passport, issued [in] 2004, valid until [2014].[6] This and his other documentary and oral evidence support this claim. On the available evidence, and in the absence of any contrary information, the Tribunal finds that he is a national of India. This is therefore the country of reference for the purpose of assessing his refugee claims, and the receiving country when assessing his eligibility for complementary protection.
[6] [Number], ff. 38 & 54.
Written claims for protection
The applicant’s written claims for protection are first put forward in his Form 866C and can be summarised as follows.
·     The applicant left India as a student because his parents did not want him or his studies to be impacted by trouble they were experiencing in India. They feared for his life due to threats of harm made to the applicant.
·     The applicant’s parents held land which they refused to sell to a large developer. In 2008, at the age of [age], he was assaulted by a group of people who came to the store owned by the applicant’s father. He was attacked with baseball bats and swords. He tried to protect his father and tried to call the police. The applicant was badly assaulted, and people from the other nearby stores and businesses came running to help them. The offenders ran away.
·     The applicant was admitted to hospital for a few days to recover from his injuries. [He suffered a specified injury], requiring surgery in India and at the [named hospital] in Sydney.
·     The men were sent by a real estate owner, [Mr A], a political leader involved with ‘big names’ in the country. When they assaulted him, they threatened him and his father with harm and death threats.
·     The applicant sought help following the incident by lodging a police complaint against [Mr A]. However, the police complaint did not result in any arrests and the applicant issued court proceedings against [Mr A].
·     The applicant’s complaint to police and court action against the people who assaulted him resulted in damage to the image and career of [Mr A] as a political leader. They threatened him for these reasons.
·     The applicant’s parents were scared following this incident. They wanted him to study in a different part of India to where they were living. Consequently, the applicant started studying at a University away from home. Only a few days had passed when the applicant was walking on campus and saw the same people coming towards him. They confronted him by blocking his way and told him that they would find him no matter where he goes. They threatened him and told him to request that his father give his property to [Mr A].
·     The applicant fears that if he returns to India he will be harmed or mistreated, or his life will be in danger. His parents have told the applicant that “they” still come to their house asking about him and threatening to harm him if he returns.
·     The applicant does not believe the authorities will be able to protect him if he returns to India because [Mr A] has links to political leaders and high-profile people in India, and for this reason he has not returned to India in the last eight years.
·     The applicant does not think he will be safe even if he relocates within India, as he believes that “they” can find him anywhere in India as was demonstrated by the fact that they found him whilst studying at university in another city. The applicant claims that they have connections in other states as well, making it very hard for him to relocate to another place within India safely.
The applicant provided evidence that his Indian passport was lost/stolen in Australia.[7]
[7] [Number], ff. 38 & 54, f.53.
Background
At hearing, the applicant told the Tribunal that he had been assisted in making his application by an agent, but he was confident that the details of the claims were correct.
On the basis of the documentary evidence before it and the applicant’s consistent evidence in his written application to the Department and at his Tribunal hearing, the Tribunal is satisfied the personal details provided by the applicant are generally credible. The Tribunal accepts the applicant was born on [date] in [Village 1], [in Municipality 1], Punjab, India and is a citizen of India by birth.[8]
[8] Ibid, ff. 45 & 65.
On the same basis, the Tribunal accepts the applicant grew up in a large village, [Village 1], in Punjab. The Tribunal accepts the applicant’s parents and [sibling] live on the family property in [Village 1], and that his [other sibling] who is now married also lives in [Village 1]. The Tribunal accepts the applicant’s evidence at hearing that his grandmother passed away two years ago. The applicant is in touch every couple of months with his parents, who have both recently recovered from COVID-19.
The Tribunal accepts the applicant’s oral evidence supported by relevant documentation that he married in Australia [in] June 2017[9] and that he and his wife have a daughter, born in Australia on [date].[10] The applicant told the Tribunal that his wife, who came to Australia on a Student visa, is from a village in Punjab not a great distance away from [Village 1]. She works in [a specified industry] and supports him. Her mother is also currently in Australia, her stay being affected by COVID-19. His daughter is now [age] and in good health. They all live together in the same house. He has no other relatives in Australia.
[9] AAT1710850, Doc Id [Number], 20 March 2018.
[10] Ibid, Doc Id [Number], 20 August 2018.
At hearing the applicant confirmed that he identifies as Hindu and can speak, read and write English, Hindi and Punjabi.
On the basis of the evidence provided by the applicant in his Form 866C, confirmed by the applicant at hearing, the Tribunal is satisfied the applicant arrived in Sydney, Australia in April 2009 as the holder of a Student visa.[11] The Tribunal is satisfied the applicant’s visa expired and he became unlawful in 2012. The applicant has not departed Australia since his arrival.
[11] [Number], f.36.
Risk of harm arising from a land dispute
At hearing, the applicant gave evidence that when he was [approximate age] years old, the family started having problems because a political leader and real estate developer commenced developing land for homes outside their village of [Village 1]. He claimed his family have a large amount of farmland there and the developer wanted to purchase land to put a road through the area. [Mr A], a local person involved in real estate, was employed by the developer who is also a political leader in the area, a Sarpanch in the next village, to ask the applicant’s father to sell the land to him, but the applicant’s father refused because they did not offer enough for it.
At hearing, the applicant gave evidence that he completed his [qualification] in [year], and then studied [a course] at a college in [Country 1], staying with [a relative] there, for about [period] until 2005 when he returned to [Village 1].
He stated that conflict over the purchase of land continued and as the office of the real estate developer was [near] their house and the attached shop, it was easy for [Mr A] and his people to call the applicant’s father and the applicant and harass them. They called the applicant as well as his father because, being [nearby], they were all known to each other.
On one occasion, [Mr A] tried to pressure the applicant to get his father to sell the land. The applicant claimed that a few days later, he sent six or seven guys around and they beat him with baseball bats and swords. His father was not at the shop because he was delivering goods to retailers, but his [sibling] was there. People from neighbouring shops came to his assistance and a neighbour took the applicant to the local hospital, a clinic a few hundred metres away. The [applicant sustained specified injuries], to which he pointed at hearing. The applicant indicated he has no documentary evidence of his treatment or hospitalisation.
The applicant gave evidence at hearing that he registered a complaint about this incident with police. A First Incident Report (FIR) was raised with the police who investigated, enquiring with neighbours to establish what happened. The applicant stated he does not have a copy of the FIR or any other police documentation about the incident.
According to the applicant, the matter went to Court in the same year. Although the people involved were identified to police, just one person appeared in Court. This person was not the person who beat him, but one who was less involved. The Court gave another hearing date but after one year nothing had happened. The applicant does not have any documentation about the case from the Court.
In considering the applicant’s account of these events, the Tribunal notes the applicant has provided consistent evidence across his protection visa application, interview with the Department and evidence at hearing, that developers were interested in purchasing some of the applicant’s family’s land but the applicant’s father refused to do so. In considering this claim, the Tribunal also takes into account DFAT country information discussed with the applicant at hearing that land acquisition is a contentious issue in India. On this basis, the Tribunal accepts a developer had an interest in the applicant’s family’s land.
However, the Tribunal has serious concerns about the reliability of the applicant’s evidence concerning his claimed assault to pressure the family to sell land, for the following reasons.
The Tribunal notes significant inconsistencies in the applicant’s evidence over the course of his protection visa application. As to the incident itself, as set out in the delegate’s decision record provided to the Tribunal by the applicant, the applicant provided information at interview that he was attacked by [Mr A] and two or three of his associates. At hearing the applicant stated that he was attacked by six or seven of [Mr A’s] guys. Inconsistent with his evidence at hearing that the people who attacked him were known to him, the applicant stated in his Form 866 that he did not know the people involved in the assault. Inconsistent with the account in his Form 866C, where the applicant states his father was present at the shop during this assault, and was also attacked and that he tried to protect him, he told the Tribunal his father was not present at the time but making deliveries. The applicant’s responses to enquiry about the people involved in the incident were vague and lacking in the detail the Tribunal would expect considering he stated that the parties were known to him. These issues lead the Tribunal to have serious doubts about the credibility of the applicant’s claims in respect of this incident.

The applicant’s account of time frames associated with his claims that he was involved in a dispute where he was harmed was confused, vague and inconsistent with his written claims and claims at interview with the delegate as set out in the delegate’s decision record provided to the Tribunal by the applicant. In the matter of the claimed assault, the applicant stated at hearing that this occurred in 2005 and that after this period he went to his [relative] in Himachal Pradesh for two to two and a half years, where he helped his [relative] in his [business]. He stated he spent very little time in the village after the assault, returning home only occasionally for visa matters before going to Australia in 2009. The Tribunal notes that in his written statement he stated that he moved to Himachal Pradesh in 2005 before the assault incident, which he claimed occurred in 2008. The Tribunal also notes that according to the delegate’s decision record provided to the Tribunal by the applicant, the applicant told the delegate at his interview that this assault occurred in 2008. At hearing, the applicant spoke with some level of specificity about his time in Himachal Pradesh, and on this basis the Tribunal accepts he spent some time there, but the inconsistency in his evidence leads the Tribunal to have serious doubts about the reliability of the applicant’s account in relation to the claimed assault. The Tribunal acknowledges that the period under discussion is now at least 13 years ago or longer and given the passage of time, the applicant may not remember details or dates. However, the Tribunal would expect him to consistently remember the general sequence of events critical to his claims, and the applicant’s confused account of the sequence of events leads the Tribunal to hold doubts that the events occurred as claimed.
The Tribunal also notes that in his written statement he claims to have studied at a university in another city in India, where “they” found him. This does not accord with the evidence of the applicant at hearing where he stated he went to college in [Country 1], rather than another university in India, returned to [Village 1] and later went to Himachal Pradesh. This discrepancy leads the Tribunal to doubt the reliability of the applicant’s evidence.
Despite claims that involve hospitalisation, police investigation and judicial attention, the applicant has provided no evidence to support his claims. The Tribunal is mindful that a reasonable approach must be taken in assessing an applicant’s claims and that there may be circumstances where applicants may not be able to provide evidence to establish these claims. However, in this case, the applicant claims to have been hospitalised when he was in his [age range] as a result of a beating by six or seven people in the village, but he has no evidence of this. He told the Tribunal his complaint was registered by the police and an FIR raised, and claimed the matter went to Court, naming only one person, and a second hearing date was arranged. The Tribunal would expect, given the nature of the applicant’s contact with these formal institutions, that he could produce evidence to support his claim that he was injured in an assault involving a number of people and which detail the reasons for the assault. When the Tribunal enquired about evidence to support his claims, the applicant stated his parents might have something, but he did not provide any details of the evidence his parents may have or indicate any intention to contact his parents to ask them. The Tribunal considers the absence of any corroboratory evidence in this case raises considerable doubt about the applicant’s claim he faced harm arising from a land dispute with developers.
Noting the applicant’s apparently genuine [specified injuries], the Tribunal is prepared to accept that the applicant was injured in an incident of some kind at some time prior to arrival in Australia. The Tribunal is also willing to accept the applicant’s evidence that he instigated a police investigation and court action of some kind because his evidence included some detail. However, the totality of the above reasons leads the Tribunal to find the applicant’s evidence in respect of this incident is not reliable. On this basis, the Tribunal is not satisfied this incident occurred in the manner claimed or for the reason of a conflict over the sale of land to a developer. For the same reasons, the Tribunal is not satisfied the applicant was threatened while studying at another University, by people telling him to tell his father to give property to [Mr A]. The Tribunal does not accept the applicant left India because of an assault and threats of harm to the applicant arising from his father’s refusal to sell land to a developer.
As set out in the delegate’s decision record provided to the Tribunal by the applicant, the applicant stated that his immediate and extended family members have continued to live at the family property of interest to the developer and they have experienced no harm from [Mr A]. At his hearing with the Tribunal, the applicant confirmed that this was still the case and that his father and family have lived peacefully in [Village 1] since his departure from India in 2009. At hearing, the Tribunal enquired why he was of interest to the developer, but his father and family were able to live peacefully in [Village 1], noting that as set out in the delegate’s decision record provided to the Tribunal by the applicant, the applicant told the delegate that he was targeted by the developer’s people because he was the primary beneficiary of his grandmother’s will. In response, the applicant told the Tribunal that the land was no longer a matter of dispute. He explained that his father took the matter of his land to Court and the Court made an order in favour of his father, supporting his father’s right to sell or not as he wished. The applicant explained that the Court order means that the people who wanted the land cannot put pressure on his father anymore. He stated that his father has now retired, and his [relative] has opened a new shop in their premises. The applicant gave evidence that his [relative] is not experiencing any problems from anyone. He stated that homes have now been built in the area and his family still own the land once of interest.
On the applicant’s own evidence, the Tribunal accepts the matter of the family land is no longer a basis for dispute with anyone and they are not experiencing problems in connection with land development. Based on this evidence, the Tribunal does not accept the applicant’s written claim that people still come to his family house threatening to harm the applicant if he returns because of issues arising from purchase and development of the family land. The Tribunal finds the applicant does not have a real chance of serious harm arising from a disputed over purchase or development of family land, now or in the foreseeable future. The Tribunal further finds the applicant does not face a real risk of significant harm in India for this reason.
Risk of harm for a personal reason
At hearing, the applicant stated that he did not have a risk of harm for matters related to the family land on return to India. However, he stated that he risked harm on return arising from a personal issue between him and [Mr A’s] people. These people were angry the applicant had taken the assault matter to court because it injured their party and he faced harm from them for this reason.
The applicant was vague in response to the Tribunal’s invitation to expand on this claim. He said he did not know details of the group to which he referred, but he was aware that [Mr A’s Relative A] is now a Panchayat member in the neighbouring village, so he is powerful. The applicant stated he has no idea whether the same problem will arise or what would happen to him if he returned. He acknowledged that he has now been away from [Village 1] for 15 to 16 years (including his period in Himachal Pradesh) and stated that he doesn’t know what these people think now. He feels lucky that he survived the incident in 2005 and he is concerned who would look after him and his child if something happened to him.
The Tribunal has accepted above that the applicant was involved in an incident of some kind, some time before coming to Australia. However, the Tribunal is not satisfied there is any evidence before it to support the applicant’s claim to face harm from anyone on return to India because he took police and court action against someone, after a period of absence of more than 12 years. On the evidence of the applicant he has no indication that any claimed past enmity against him persists. On the basis of this evidence at hearing, the Tribunal does not accept the applicant’s written claim that people still come to the house asking about him and threatening harm if he returns because he instigated police and court proceedings or for any other reason. The Tribunal considers the applicant’s claim to face harm arising from personal enmity because he instigated police and court proceedings many years ago to be purely speculative.
In considering this claim, the Tribunal also takes into account the applicant arrived in Australia in 2009 but did not lodge a protection visa application until January 2017, seven years after his arrival and five years after the expiry of his visa. The Tribunal indicated that it considers this is a long delay and the applicant said he didn’t know he could apply for protection here and assumed it was not an option for students or people from India. He told the Tribunal that he enquired with friends who had asked agents and they confirmed his view that he could not apply. He stated he did not have much money to seek formal advice. The Tribunal has considered the reasons the applicant provided for the long delay before lodging a protection visa. The Tribunal considers that in the event the applicant feared serious or significant harm in India he would be strongly motivated to obtain reliable information about protection visas, seeking out affordable sources such as free legal aid services or the Department of Home Affairs website. The Tribunal considers that the long delay, which included four years while the applicant was in the community unlawfully, before lodging the application indicates a lack of urgency to seek protection. The Tribunal considers this points to the conclusion that the applicant does not have a genuine fear of return to India and finds this further reason to doubt the applicant’s claim to face risk of harm arising because he damaged the reputation of [Mr A], a local political leader.
The Tribunal has considered the totality of the reasons above and does not accept the applicant has a real chance of serious harm because he damaged the reputation of [Mr A], a local political leader, and his associates. For the same reason, the Tribunal does not accept the applicant has a real risk of significant harm from [Mr A] or his associates. The Tribunal does not accept the applicant faces a real chance of serious harm or a real risk of significant harm from anyone else on the basis of having instigated police or court proceedings.
Assessment: refugee criterion
The Tribunal has assessed whether the applicant has a well-founded fear of persecution for one or more of the five reasons mentioned at s.5J(1)(a) of the Act, if he was to return to India, now or in the foreseeable future.
The Tribunal has considered, individually and cumulatively, all the applicant’s claims and evidence and for the reasons set out above, the Tribunal does not accept there is a real chance that if the applicant returned to India he would be persecuted because of a property dispute with a developer or in reprisal for instigating police or court action damaging to the reputation of a local political leader, or for any other reason. The Tribunal finds the applicant does not have a real chance of persecution in his village of [Village 1] or anywhere in India for one or more of the five reasons mentioned at s.5J(1)(a) of the Act, now or in the foreseeable future if he was to return to India.
The applicant has stated he does not believe the authorities will be able to protect him if he returns to India because [Mr A] has links to political leaders and high-profile people in India, and the fact that the applicant has not been to India in over eight years. As the Tribunal finds the applicant would not be persecuted for one or more of the reasons mentioned in s.5J(1)(a) of the Act, it does not address whether effective protection measures are available to the applicant in India, or whether the applicant could obtain from an authority in India protection such that there would not be a real risk that the applicant will suffer significant harm.
The Tribunal finds the applicant does not have a well-founded fear of persecution. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
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 has considered whether, on the evidence before it, there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to India. The Tribunal takes into account all of the claims and evidence before it, including the applicant’s future conduct and relevant country information.
The Tribunal is not satisfied that the applicant’s circumstances give rise to a real risk that he will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or that would meet the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty.
The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Amanda Paxton
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.
…

[2021] AATA 4142

11 October 2021

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