1712015 (Refugee)

1712015 (Refugee) [2017] AATA 2375 (22 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1712015
COUNTRY OF REFERENCE:                  India
MEMBER:Paul Windsor
DATE:22 August 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 August 2017 at 3:13pm
CATCHWORDS
Refugee – Protection visa – India – Social group – Love marriage – Honour killing – Credibility issues
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 116, 189, 499
Migration Regulations 1994, Schedule 2
CASES
Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547
Kopalapillai v MIMA (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] June 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] May 2017. The delegate refused to grant the visa on the basis that she found that there was nothing in the applicant’s claims to suggest that he was ever targeted for one or more of the reasons mentioned in s,5J(1)(a) of the Act and therefore is not a refugee as defined in s.5H(1) of the Act. The delegate also found that the applicant’s evidence indicated that the authorities in India were willing to provide protection to the applicant. On the available evidence the delegate was not satisfied that there is a real risk that the applicant would suffer significant harm if he was to return to India.
The applicant applied to the Tribunal for review of this decision on 6 June 2017. He provided a copy of the delegate’s decision record to the Tribunal.
The applicant appeared before the Tribunal via [video-link] on 17 August 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi 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 (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 themself 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
In his Protection visa application[1] the applicant claims to be a citizen of India who was born in Punjab state India on [date]. He states that he belongs to the Sikh ethnic group, is of the Sikh religion, and speaks, reads and writes Punjabi and speaks English. He indicated he was married [in] March 2015 and separated [in] November 2016. He indicated he last departed India legally [in] February 2016 on Indian passport [number] issued [in] 2014 (with expiry date [2024]) and arrived in Australia [in] February 2016, entering on a student visa.
[1] See folios 30-41 of Department [file].
Claims from the Protection visa application
The applicant’s claims from his Protection visa application are in a statement included with his protection visa application[2] and are summarised as follows:
·He met His wife [details deleted]. He started talking with her while she was studying in Ludhiana. She lived with her uncle and aunty. After a while they got into a relationship and he used to visit her in Ludhiana.
·At first her parents and relatives did not agree to them marrying but somehow she convinced her parents to agree. However, her other family and relatives were not in favour. Her uncle and aunty who she was staying with in Ludhiana and another aunty and her cousin in [Country 1] were against the marriage.
·They married [in] March 2015. Her relatives were ‘pissed off’ because of the wedding and started threatening them. They decided to move to Australia to be away from them.
·While his wife was preparing for her ilets (sic) test her relatives attacked him to kill him but somehow he survived the attack. He filed a police report against her family and they went to the magistrate’s court and his wife made a statement to the judge that they are scared of her family and relatives and fear for their lives. The judge ordered that if something happened to them his wife’s family and relatives would be responsible.
·They stayed at an unknown place for some time and got an Australia visa and moved to [Australia].
·When they came to Australia his wife started talking to her family again and they started forcing her to leave him. After a while they started arguing. She then moved to [City 1] without telling him. She said she was going to [Country 1] to visit her aunty but he found out from her emails that she had an offer from a college in [City 1]. He called her and she said she can’t live without her relatives and parents and wasn’t happy with their marriage.
·After five days he came to [City 1] and found that she was living with her uncle. He met her and tried to talk with her but she cut herself with a kitchen knife. He grabbed the knife from her and threw it outside away from her. She called the police who found the knife and arrested him. His fingerprints were on the knife. He was sent to prison for [number of] weeks.
·She called her family in India and told them he had attacked her. After that one of her cousins, who is a member of a [gang], went to his house in India with 10-12 guys and told his parents that whenever he finds the applicant he is going to kill him. His parents belong to Akali Dal and her family belongs to the Congress party, which are rivals. In a recent election Akali Dal lost and Congress came into power. Her family has really good relations with Congress. Her family knows he is getting deported and are making continuous threats to the applicant’s family that they are ready for revenge. The chief of his village knows about the threats and also knows that it is not safe for him to return home.
[2] See folios 29 of Department [file].
The applicant also provided a copy of a research report on Honour Killings in Punjab state India[3] and three copies of an article on arranged marriage in India and six copies of an article on murder associated with ‘love-related disputes’ in India[4].
[3] See folios 19 – 28 of Department [file].
[4] See folios
The delegate’s decision record, a copy of which was provided to the Tribunal by the applicant, indicates that the applicant arrived in Australia [in] February 2016 on a [student] visa as a secondary visa holder, was charged with criminal offences [in] January 2017 and held on remand, and [in] March 2017 was convicted and sentenced to a [Community] Corrections Order. The delegate’s decision record indicates that the applicant’s [visa] was cancelled [in] March 2017 under s.116 of the Act and [in] March 2013 he was detained by the Department of immigration and Border Protection (DIBP) under s.189 of the Act.
The applicant attended an interview with the delegate (via video conference) [in] May 2017. The Tribunal has listened to a recording of this interview. As indicated in the delegate’s decision record, when queried at the interview regarding his written statement that he was attacked by his wife’s relatives but was able to escape, the applicant indicated that he was home with his wife when they heard some people knocking on the door. He said his wife told him it was her cousin and that they should run so they ran off from the back door into the village. When asked if anything else happened the applicant indicated that he was hit by a car driven by his wife’s uncle when he was riding a motorbike and was injured. When asked why this incident was not included in his written statement the applicant indicated that someone assisted him with his application and advised him to tell some of his story in the written claims and tell the rest at interview.
Following the interview the applicant submitted to the Department copies of Affidavits from the Sarpanch (head) of his family village ([District 1]), his father and his mother[5], and copies of Punjabi language and English language translations of two reports dated [in] December 2015 by [Mr A] of the [Town 1] Police Station in [District 1][6].
[5] See filios 70-72 of Department [file].
[6] See filios 70-72 of Department [file].
Findings and reasons
The issues in this review 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(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of India, there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
Noting the delegate’s findings in her identity assessment, including that the department is in possession of the applicant’s original passport and that he is a citizen of India[7], the Tribunal accepts that the applicant is a citizen of India and that his identity is as he claims it to be. The Tribunal accepts that India is the applicant’s ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Credibility
[7] See folio 15 of Tribunal file 1712015.
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, 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.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
Assessment of claims
The applicant claims to fear harm in India from his estranged wife’s relatives and associated Congress party supporters (due to his estranged wife’s family’s support of the Congress party) because his estranged wife told her family in India that he beat and attacked her. He claims the risk of harm he faces has been increased because the Congress party won the Punjab state election and assumed government in Punjab state in March 2017.
Credibility issues
Based on the evidence provided to the Department and the Tribunal, the Tribunal finds that the applicant is not a credible witness. Specific examples of deficiencies and inconsistencies in the applicant’s evidence which support this finding are discussed in detail below.
Claimed relationship
The applicant claims that he was married [in] March 2015 to a woman [whom] he met [in] around mid-2013. He claims that as the relationship developed he would travel two hours by car to the Punjab city of Ludhiana, where she was studying at the [college] to meet her. The applicant claims that at that time his now estranged wife was living with her aunt and uncle in a village close to Ludhiana but he would meet her at her college. He indicated at the hearing that he did not go to her aunt and uncle’s residence to meet her, commenting that it is ‘not appreciated’ in Punjab to visit the home of a girlfriend. The applicant commented that they went ‘here and there’ together and watched movies. The applicant indicated that when they decided they wished to marry they told their parents at the same time. He said his family objected initially but he persuaded them and commented that his estranged wife’s family did not agree at all. When the Tribunal queried the applicant that in the statement included with his application he indicated that his wife persuaded her parents to agree to their marriage he indicated that was the case.
The applicant indicated at the hearing that after their marriage [in] March 2015 his wife came to live with him at his parents’ house in his [village]. He said that after about a month there was an incident where his wife’s cousin came to his family home with a group of five ‘boys’ armed with big [sticks]. He said they could see them as they were at the main gate to the house and he and his wife were able to run away out the back door of the house into the village. He indicated that the group entered the house and spoke with his parents, who said they did not know where he and his wife were. He said they told his parents they would not spare them. The applicant said there was a second incident about 2-3 months later when he was riding his motorcycle [when] he was hit from behind by a car carrying his uncle and aunty. He said he ‘fell down’ and fractured his left arm and spent [number of] days in hospital as a consequence. The applicant said that when he got out of hospital he decided that they needed to move overseas and so he asked his wife to do an ‘IELTS’ (International English Language Testing System) course. He commented that he did not want to leave his parents in India but his wife convinced him.
Noting (from the delegate’s decision record) that the applicant arrived in Australia [in] February 2016 as a secondary visa holder on a [student] Visa the Tribunal accepts that the applicant married in India [in] March 2015 and came to [Australia] with his wife in February 2016. The Tribunal accepts that the applicant’s wife left him in November 2016 and came to [City 1], that he tracked her to [City 1] and there was an incident which resulted in him being charged [in] January 2016 with a number of criminal offences, being held on remand for [number of] weeks and subsequently being convicted of some charges and sentenced to a [Community] Corrections Order.
Fear of harm from estranged wife’s relatives
The Tribunal does not accept that the claimed incidents in India in 2015 actually occurred. At the hearing the applicant claimed that there were two incidents: the first he claimed occurred in in April 2015 - the incident where he claims his wife’s cousin and men armed with sticks came looking for him and his wife at his family home; and the second he claimed occurred two-three months later (June-July 2015) – the incident where he claims his uncle/aunt hit his motorbike from behind with their car, forcing him to fall down and break his arm as well as sustain other injuries. However, following the interview with the delegate [in] May 2017, the applicant submitted to the Department documents he claimed his father had sent to him from India. As noted at paragraph 16 above, these comprised affidavits dated [in] May 2017 from his father, mother and the Sarpanch (head) of his family village, and two police reports dated [in] December 2015. The three affidavits are in similar terms and indicate that the applicant’s parents sent him out of India to save his life from some relatives from his in-laws side and their friends who belong to the Congress party because they want the applicant to join the Congress party. The affidavits state that these people threatened to kill the applicant if he did not join the Congress party and some relatives also threatened to take their land from them. The affidavits state that the applicant was attacked [in] November 2015 when he was working in the fields, was beaten with [sticks], and that he received internal injuries. The affidavits state the applicant was attacked a second time [in] January 2016 when he was coming home from the village and that his relatives from his in-laws side and Congress members threatened to kill him and steal their land. The affidavits indicate that the police are not helping them but instead ‘pushed them out’ when they went to file complaints against these people. The affidavits indicate that that the only reason they want to steal his land is because the applicant refused to join the Congress party and ‘they were in need for young people’ like him to join their party and ‘when he refused they pressurized him to join them by scaring’ to take away their land. The affidavits state that after this these people came to his their house at night time and asked the applicant’s mother about him and he went to his close relatives (his mother’s affidavit states he went to his friend’s house) in [a] village in Ludhiana district until he made arrangements to leave India. The Affidavits conclude with a statement that Congress members and some of his relatives from his in-laws side is still looking for him and threaten to kill him upon seeing him.

These claims are quite different to those made by the applicant in his written statement included with his Protection visa application and in his evidence to the Tribunal at the hearing. The affidavits make no mention of the applicant’s wife or of his in-laws/relatives disapproving of his marriage. They also make no mention of an incident in April 2015, shortly after the applicant was married, where 6-7 men armed with [sticks] came to the family home but from whom the applicant and his wife were able to escape unharmed. They make no mention of an incident 2-3 months later in mid-2015 where the applicant was hit from behind by a car carrying the applicant’s uncle and aunt which caused him to fall from his motorbike and sustain injuries including a broken arm which resulted in him being hospitalised for [a number of] days. The affidavits make no mention of [Mr A] of the [Town 1] police station in [District 1] making police reports [in] December 2015 regarding the applicant’s marriage to his wife, the ‘matter between both the families’ having ‘become very complicated’, or that the applicant’s wife was ‘presented before the Court’. This is despite the copies of the claimed police reports provided to the Department by the applicant indicating that the applicant attended the police station with his father and that the second of the two reports was signed by the applicant and his father as well as the applicant’s wife and some of her relatives. When these matters were put to the applicant he commented that his parents arranged the documents and got what they thought would make him safe. He indicated that the affidavits were not a true account of what had happened.
The applicant maintains that the account he provided at the hearing is a true account of what happened to him and that he is at risk in India because his now estranged wife has told her family and relatives that he beat her and attacked her. He claims that his parents have told him that his estranged wife’s relatives are still looking for him and will harm or kill him if he returns to India. He claims that because they are Congress party supporters the risk of him being harmed has increased as a consequence of Congress coming to power in Punjab state in March 2017. The applicant claimed at the hearing that they may have made fake charges against him and he could be arrested at the airport on return to India.
The Tribunal does not accept that these claims are true. The affidavits provided by the Sarpanch of the applicant’s village, the applicant’s father and the applicant’s mother are dated [in] May 2017. If the applicants claims are true and he was and is at risk due to his having a ‘love’ relationship with his wife, the breakdown of that relationship in November 2016, the charging in January 2017 and conviction of the applicant in March 2017 of criminal offences against his estranged wife, and because she had told her family and relatives that he had beaten her and attacked her, the Tribunal considers that the applicant’s parents would not have felt the need to make up the scenarios detailed in their affidavits or have the village Sarpanch sign an affidavit detailing a similarly fictitious account of the applicant’s circumstances. The Tribunal considers they would have detailed a series of events that broadly corresponds to the applicant’s written claims and evidence at the hearing: that his in-laws/relatives did not support his marriage as it was a love marriage; that they came to his family home in April 2015 seeking to harm him and his wife but the applicant and his wife were able to flee unharmed; that the applicant was knocked off his motorbike in mid-2015 and hospitalised for nearly [number] days; that the applicant, his wife and the applicant’s father approached the police in December 2015 and appeared before a magistrate who found the marriage between the applicant and his wife was valid and warned the applicant’s wife’s relatives that they would be responsible for any harm that befell the couple; that the relationship has since ended; and that the applicant’s estranged wife’s family and relatives were now seeking to harm the applicant because his now estranged wife told them he had beaten her during their marriage and in January 2017 was charged with attacking her.
In this regard the Tribunal also notes the comments in the delegate’s decision record that when he was detained by DIBP [in] March 2017 the applicant was interviewed by a compliance officer. The decision record indicates that the applicant was asked at that time if there was any reason he could not return to India and in reply stated that ‘the only reason’ was that he does not have any money because he sold everything to come to Australia and his parents are elderly. The decision record indicates that the applicant initially signed a request for voluntary removal but subsequently changed his mind. The decision record notes that when queried about this during an interview with the delegate the applicant indicated that he did not have any fears initially but commented that his family supports the (former ruling) Akali Dal party and his wife’s family supports the Congress Party and when Congress won the recent Punjab state election his wife’s cousins came to his family home and told his parents they would not spare him. When queried about this at the hearing the applicant said that the phone was very expensive when he was in jail but when he was in immigration detention he spoke with his parents who told him that his wife’s relatives were still looking for him and had said they were not going to leave him alone. He commented that he did not know what sort of fake charges they had put against him because his estranged wife had told them that he had beaten her. The Tribunal found this evidence unconvincing, noting that it would expect that if the applicant had obtained this information from his parents as he indicated, they would also have included this information in the affidavits they prepared [in] May 2017. However, there is no reference to these matters in the affidavits, only that the applicant was being threatened because he refused to join the Congress party.
As none of the key events/details in the applicant’s account of his circumstances have been mentioned in the affidavits, the Tribunal does not accept that they occurred. The Tribunal does not accept that the applicant was threatened by his in-laws when he was in India or following his departure from India [in] February 2016, or that he has been threatened by his in-laws since [March] 2017 or when the outcome of the Punjab state election was announced on 11 March 2017. The Tribunal does not accept that the applicant’s estranged wife’s cousin came to his family home with a group of men armed with [sticks] about a month after they were married in March 2015 looking to harm them, but they managed to run away out the back door. The Tribunal does not accept that a few months later around mid-2015 the applicant was run off the road by a car carrying his estranged wife’s uncle and aunt and was hospitalised as a consequence. The Tribunal does not accept that, sometime prior to the applicant lodging his Protection visa application [in] May 2017, one of the applicant’s estranged wife’s cousins who is a member of a [gang] and associated with the Congress party, came to his family home with 10-12 guys and told his parents that whenever he finds the applicant he is going to kill him, because the applicant’s estranged wife told her family that he attacked her (as claimed in the written statement included with his application).
Accordingly, the Tribunal finds that the applicant is not a credible witness. It is clear that he is prepared to have family members and others (his village head/Sarpanch) provide statements that he knows to be untrue in an attempt to further his claims. Given the applicant has admitted that his parents prepared false affidavits the Tribunal also finds that it cannot have any confidence that the claimed police reports [in] December 2015 provided by the applicant to the Department are genuine, and accordingly the Tribunal gives these no weight.
Fear of harm from Indian National Congress (Congress) party members and supporters
As the Tribunal finds that the applicant is not a credible witness and does not accept that he has been the subject of violence, attempted violence or threats of harm by family members or relatives of his estranged wife, or Congress party supporters or members acting in support of family members or relatives of his estranged wife, the Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm from family members or relatives of his estranged wife or due to any associations that the applicant’s estranged wife’s family or relatives may have with the Congress party, and/or because the Congress party came to government in Punjab state in March 2017. The Tribunal does not accept that any false charges have been brought against the applicant by family members or relatives of his estranged wife or any Congress party associates they may have and/or any police who may support the Congress party, or that there is any risk that he would be arrested at an airport on his return to India because false charges have been brought against him.
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).
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). For the reasons given above, the Tribunal has found that there is not a real chance that the applicant would suffer persecution involving serious harm from family members and/or relatives of his estranged wife, and/or Congress party members or associates and/or police who support the Congress party, acting on behalf of his estranged wife’s family and/or relatives, if he returned to India.
Having regard to the findings of fact above, the Tribunal also finds that there is not a real risk that the applicant would suffer significant harm from family members and/or relatives of his estranged wife, and/or Congress party members or associates and/or police who support the Congress party, acting on behalf of his estranged wife’s family and/or relatives, or from anyone else, as a necessary and foreseeable consequence of being removed from Australia to India, now or in the foreseeable future. Consequently, 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.
Paul Windsor
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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2017] AATA 2375

22 August 2017

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Procedural Fairness

Statutory Construction

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Natural Justice