1713572 (Refugee)

1713572 (Refugee) [2019] AATA 2305 (12 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1713572
COUNTRY OF REFERENCE:                  India
MEMBER:Paul Windsor
DATE:12 April 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 April 2019 at 3:27pm
CATCHWORDS
REFUGEE – protection visa – India – criminal convictions – fear of persecution from victims – ethnicity – Punjabi – religion – Sikh – social group – caste – mental health issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33

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 on 9 June 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, Mr [A], who claims to be a citizen of India, applied for the visa on 26 April 2017. Mr [A] pleaded guilty in [court] to one count of intentionally causing serious injury to Mr [B] and one count of intentionally causing injury to Mr [C] [in] December 2011. He was sentenced to [a number of] years imprisonment with a non-parole period of [a number of] years. The applicant claimed to fear harm should he return to India from Mr [B], Mr [C] and Mr [C’s] former wife, Ms [C], with whom he had been having an affair. He also claimed to fear harm from the Indian authorities as a consequence of his offending in Australia.
The delegate refused to grant the visa on the basis that there was no information to suggest the applicant will be targeted on his return to India for one or more of the reasons mentioned in s.5J(1)(a) of the Act. In relation to the complementary protection criterion the delegate found that it would be reasonable for the applicant to relocate to an area such as Delhi where there would not be a real risk that he would suffer significant harm from Mr [B], Mr [C] or Ms [C].
Mr [A] sought review of that decision on 26 June 2017. He provided the Tribunal with a copy of the delegate’s decision record.[1]
[1] See folios 10-15 of the Tribunal file.
Mr [A] appeared before the Tribunal on 3 April 2019 by video-link to the [Immigration] Detention Centre to give evidence and present arguments. The Tribunal hearing was conducted in the English language.
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 and Border Protection (now the Department of Home Affairs) (the Department) – 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 (DFAT) 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 Mr [A] claimed to be a citizen of India who was born in Amritsar in Punjab state India on [date]. He stated that he belongs to the Sikh ethnic group, is of the Sikh religion, and speaks, reads and writes Hindi and English. He indicated he has never married or been in a de facto relationship. He indicated he first arrived in Australia [in] December 2006, having departed India legally, and entered Australia on a Student visa.[2]
[2] See folios 4-44 of the Departmental file.
Claims from the Protection visa application
The applicant’s claims from his Protection visa application are summarised as follows:[3]
·He put himself and his family in a very dangerous situation after his arrest in 2011.
·In 2012 his father received a phone call from an anonymous person threatening that they will kill him as soon as he gets out of prison.
·He thinks that [Mr C] and [Ms C] are not together anymore and that both blame him for their separation. [Mr B] talked to his father a few times before and after his arrest. He thinks they will never leave him alone if he returns to India and will seek revenge by themselves or through someone else. Mr [B] and Mr [C] will be able to locate him easily through his friends and family by using their ‘money power’ as they are both very rich.
·They have his father’s details and live very close to his father’s home. He does not wish to put his family’s well-being at risk by returning to India.
·He also believes he will be harmed or mistreated by the authorities or Delhi police. They will interview him on his arrival at Delhi International Airport because of his deportation or removal from Australia. He will have to tell them the details of his offences and will be humiliated. They will share this information with local area police and he or his family will be questioned if anything happens in the local area.
·They will use this information to track and harass him. He could face fake charges and be beaten up to accept those charges. He does not have money to pay them to stop harassing him.
·The authorities won’t protect him especially because he is the one who was convicted for crimes. They would not want to waste their time.
·He does not think he could relocate as he is ‘broke from inside out’ and has to start his life again from scratch. He doesn’t want to have to hide anywhere from anyone. He also can’t put his family’s safety on the line. His victims will also be able to find him through common friends. He also doesn’t want them to misuse any authorities to harass his parents to find him.
[3] See folios 1-3 and 28-35 of the Departmental file.
The applicant attached two letters from his father. The letter dated 2 July 2012 indicates that his father has received some threatening calls from an unknown person.[4]
[4] See folios 1-3 of the Departmental file.
Included with Mr [A’s] review application was a submission dated 22 June 2017 and some education/training certificates showing his ‘interest to do better in life’.[5] Relevant additional matters raised in this submission are summarised as follows:
·In 2012 he apologised to his victims in writing but he did not receive any response.
·He thinks he is doing the right thing by not trying to find out where the victims are and where they are living. He wants to put this matter behind him and move on.
·He gave solid reasons why he can’t go back to India and relocate elsewhere. He thinks the delegate ignored the facts that his life will be at real risk. He does not want to hide from anyone. This is for the safety of his parents and siblings.
·With reference to page 6 paragraph 4 of the decision record, he did no say that he may have to live with his parents if he did not have anywhere else to go.
·There is a caste system in India which is still bad and people get treated according to their caste, which put him and his family in a vulnerable position because he belongs to a certain caste which is different to that of his victims. This could lead to massive trouble.
[5] See folios 18-35 of the Tribunal file.
Mr [A] provided a further written submission dated 24 July 2017.[6] Relevant additional matters raised in this submission are summarised as follows:
·In paragraph 2 of the findings of fact on page 3 of the decision record the delegate accepted that he fears he will be harmed by Mr [C], Ms [C] and Mr [B] and the authorities because of his criminal conviction if he returns to India. The Indian authorities treat Indian nationals coming back to India, whom they are very comfortable dealing with, differently to foreigners. For example, Mr [D] was deported to India in 2016 after serving [a number of] months for [an offence]. The applicant heard that Mr [D] was held for 11 hours at Delhi airport and had to explain everything to Delhi police while his whole family was waiting for him outside. This would never happen to anyone in a country like Australia. This all comes under persecution for being an Indian national (nationality).
·He does not want to have to tell the Indian authorities about himself. His name itself screams loudly that he is Punjabi and belongs to the Sikh religion. They have information about his caste as well. He disclosed his caste to his local police station when he applied for his passport in 2005. He believes his victims have this knowledge and are a different caste from him.
·He is now [age], doesn’t own any property in India, is not married and does not have kids.
·He does not read or write any language other than Hindi and English. In India, every state has its own language.
·He does not have prior criminal convictions. His record shows he did not have any conflicts, incidents or arguments with anyone while he served his sentence in Australia.
[6] See folios 41-43 of the Tribunal file.
Mr [A] provided a further written submission dated 25 March 2019.[7] Relevant additional matters raised in this submission are summarised as follows:
[7] See folios 109-111 of the Tribunal file.
·At the time of his offending he was stuck in a really bad situation where he was struggling financially, emotionally and mentally. People were taking advantage of him all the time because he never said ‘No’ to anyone for anything. This affected him pretty badly, his mental and financial situation was so messed up he couldn’t even afford to see a psychologist.
·When he was being held on remand [details deleted]. He was so down that he lost 20 kg in the first few months of his sentence.
·From the very beginning of his sentence he engaged himself by doing studies, programs and work, he never sat back. He has sent the original certificates to the Tribunal. He changed himself showing his dedication, determination and how focused he is on a positive approach to the future.
·[Details deleted]. Then he found a connection with God and decided to follow His guidance. He could not find peace with the Sikh religion but the Chaplain from [the] Correctional Centre helped him ‘take a lead for a better peaceful life’ and he became an Anglican Christian.
·There was [details deleted] about his conviction. There are many things [that] are not true. He was struggling with his mental health (depression) and was running away from people who were taking advantage of him. He did not defend himself at all in the courtroom as he had no hope left and gave up. He does not believe he should have got [the number of] years for the crime he did; that was too much.
·He was away from his community for seven years and did not speak Indian. Now he is in immigration detention he is suffering reverse culture shock. He refused to share a room with another Indian. He is now getting some help from the mental health service at the detention centre. He needs a normal life and is willing to do things to achieve positive outcomes.
·He last met with his parents and siblings nearly nine years ago. They did not visit him while he was in custody. He ‘kind a’ cut off all the relations with his other relatives back in India. He has his own life and wants to live it on his own. Being independent is a great feeling. His duty as a son is to protect his parents and he does not wish to see them suffering due to his deeds.
·His main concern relates to his race. In countries like India different communities, religion, race and the caste system is a big deal. He is concerned about honour killings which are acts of vengeance, usually against female family members but sometimes against males, by family members because the family member is held to have brought dishonour on the family. He has a threat to his life. It could be Mr [C], Ms [C], Mr [B] or it could be an anonymous person. His case [details deleted] and he has heard many things from time to time from random people about Mr [C], Ms [C] and Mr [B]. For example, he heard from [Mr E] who was serving time for assault charges, also in relation to Mr [C], and he told the applicant that Mr [C] was very angry with Ms [C] and bashed her pretty badly, tore her clothes and left her to die, and was arrested and deported to India. One of the applicant’s friends told him Ms [C] has a new boyfriend. The applicant spoke to his family and asked them to be careful all the time.
·He is scared for his life. He is not a fighter and doesn’t think he can defend himself because physically he is very weak now. He is not looking forward to dealing with this at all in his future.
When invited to the hearing Mr [A] indicated that he wished to attend in person rather than by video-link from the immigration detention centre in [City 1] and that he wished to have three witnesses attend. As Mr [A] was subsequently transferred to the [Detention] Centre in [State 1] [in] March 2019 it was not possible for him to attend the hearing in person. Mr [A] expressed concern that he would not get a fair hearing if it was conducted by video-link. He also indicated that he was exhausted from the travel to [State 1]. The Tribunal advised Mr [A] that it was not practical for him to be brought back to [City 1] for the hearing, many hearing are conducted by video-link and the Tribunal will ensure he has an opportunity to put his case forward. As the hearing was scheduled for 3 April 2019 the Tribunal considered five days was sufficient time for Mr [A] to recover from the travel to [State 1]. Mr [A] did not pursue his request that witnesses attend the hearing in [City 1] but submitted statutory declarations from four persons attesting to his character.[8]
[8] See folios 129-135 of the Tribunal 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
On the basis of the copy of the applicant’s Indian passport provided to the Department[9], 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.
Concerns about receiving a fair hearing by video-link.
[9] See folios 22-26 of the Departmental file.
The hearing was conducted in English. Mr [A] spoke readily and was engaged and lucid. There was a good quality video-link and neither the Tribunal nor Mr [A] had difficulties understanding each other. The Tribunal is satisfied that Mr [A] had the opportunity to put forward and discuss all his claims at the hearing.
Assessment of claims
Mr [A] claims to fear serious harm in India from Mr [C], Ms [C], Mr [B], their families and associates and the Indian authorities because of his Indian nationality, his race, religion, and because he is a member of particular social groups defined by his lower (Mazpi) caste and his status as someone who has been convicted of a crime. He claims that the risk of harm is as a consequence of him having been convicted and serving a sentence of seven years imprisonment in Australia for intentionally causing serious injury to Mr [B], intentionally causing injury to Mr [C], having had an affair with Ms [C], and publicity surrounding these matters.
Background
At the hearing Mr [A] indicated that his parents, who are [a certain age], are still living in their family home which is [near] Amritsar city in Punjab state India. He said he has [siblings, including one] who is married and lives with her husband’s family and [another sibling] who is unmarried and lives with his parents. He said he is in contact with his parents and ‘definitely’ has a good relationship with them. He commented that he respects them and it is his duty to look after them.
Mr [A] indicated that he was born into a Sikh family as a Punjabi but he never had a chance to learn to read and write Punjabi as he was schooled outside of Punjab state because his father [held a specific job] and he grew up attending [schools] where they learnt English and Hindi. He indicated that his lack of ability to read and write Punjabi affected his ability to learn about the Sikh religion because all the Sikh holy books are written in Punjabi.
Mr [A] said he now follows the Anglican religion. He said he was baptised [in] September 2018. When asked if he had told his parents that he had been Baptised he said told his [sister] and she probably told his parents. He said he had not disclosed it to his mother and when she saw him wearing a cross she asked him why and he told her that it made him feel a little bit safe. The Tribunal asked Mr [A] whether his father had raised the matter with him. He replied that his sister told him she had a conversation with his parents about it and his father had commented that God is one and that he was happy that his son was connected to God in his own way.

The Tribunal asked Mr [A] about his caste. He said he is a Mazpi and commented that the Mazpi come under the scheduled castes in India and are a lower caste in Indian society. He said they have different temples and are not allowed to go to higher caste Jatt Sikh temples. He added that Jatt’s discriminate against Mazpis a lot and that he still hears stories about this. He commented that Mazpis do not have much opportunity to sit with higher society.
Mr [A] indicated that he spent the first 20 years of his life living in different places in [India]. He said his family moved to Amritsar, which is his father’s home town, in 1998 when his father [moved for work to] Chandigarh (the joint administrative capital of Punjab and neighbouring Haryana state), and that he completed Year 12 of his schooling in Punjab. He indicated his father retired [in] 1999.
Mr [A] said he completed a [degree] at [a] College in Punjab, indicating that he selected that college because of his lack of Punjabi language skills. He indicated that he can speak a little Punjabi and learnt more in Australia because he was living with Punjabi people in Australia.
Mr [A] indicated that he worked for a [company] in Punjab for [a number of] months involved with [a certain product] and then after doing some training in Ahmedabad in Gujarat state was a [Occupation 1] for a [organisation] for just under a year. He indicated he was selected for this role because his English language skills meant he could talk with [customers]. Mr [A] commented that he did not really like Punjab because of the language and the way people interacted with each other.
Mr [A] indicated that he studied [a course] when he came to Australia on a Student visa in 2006, completing his course [in] 2008. He said he also did some [courses] while he was in prison. Mr [A] indicated he worked in various jobs while he was in Australia including doing [work] experience at a [Business 1] as well as work at a [Business 2], [Occupation 2], and at a [Business 3].
Fear of harm from Mr [C], Ms [C] and Mr [B] and their families, associates and agents.
At the hearing Mr [A] reiterated that he considers there is a threat to his life from Mr [C], Ms [C] and Mr [B]. He indicated that he believes this is especially the case in relation to Mr [C]. He said he has heard that Mr [C] has separated from his wife (Ms [C]), is in India, and blames him for what has happened. He added that Mr [C] is from a Jatt caste family and they did not know his caste at the time. The Tribunal asked Mr [A] why he thought there was a threat to his life. He replied that the situation was really bad when he was living with them. He said he had helped them, including financially, but they consider that he betrayed them. Mr [A] added that it was not his call to disclose his relationship with Ms [C] and she had not been living there when he returned to live with Mr [C] but came back while he was still living there.
Mr [A] said Mr [B] was also really angry with him and was sending messages, including on [social media]. He said his sister was accessing his [social media] site and she told Mr [A] that Mr [B] was trying to ruin his friendship circle. Mr [A] added that they know his father’s address. He indicated that Mr [B], who used to exchange greetings with his father when Mr [A] called his father before he was arrested, had talked with his father after he was arrested. The Tribunal asked Mr [A] if Mr [B] is still in Australia. He replied that he thinks Mr [B] has been in [Country 1] since around 2013. The Tribunal asked Mr [A] if Mr [B] had had any recent contact with his family. Mr [A] commented that his father said he would contact Mr [B] after Mr [A] was arrested to see how he was feeling. He indicated that this was in January 2012, a few weeks after he was arrested but commented that he did not know what was said. He added that he did not want to put his family in that kind of trouble and it was affecting their health, commenting that his father had [a health incident] after his arrest. The Tribunal noted that his father’s first [health incident] was in 2010, before the incident in which Mr [C] and Mr [B] were injured, which was [in] December 2011.
The Tribunal asked Mr [A] about the [social media] messages. He indicated they were from Mr [C]. He said his sister had access to his [social media] account but she has deactivated it now. He said a message was sent at the start of 2012 commenting on a photo of his [details deleted]. He said another message was posted [details deleted].
The Tribunal also asked Mr [A] about the threat calls to his father, asking if these were from Mr [C]. He indicated he had not said that and the calls were anonymous. He said there were two calls, one in late March or early April 2012 and another about a year later. When asked what the callers said Mr [A] indicated that he asked his father but his father did not disclose what they had said as Mr [A] was in prison and was having his ups and downs so his father did not give him much information. He added that he did not know much about what was happening in their lives and even when his father had a second [health incident] and was hospitalised for [a number of] days they did not tell him. He said they knew he was suffering and he understands why they did not want to give him stress.
The Tribunal also asked Mr [A] about the comment in his recent submission that Mr [C] had been deported to India. He replied that he met [Mr E] in prison as Mr [E] was serving time for assaulting Mr [C], and Mr [E] told him that was the case. He indicated he did not know when this occurred, commenting that he had not tried to contact anyone since he sent letters of apology in 2012. He added that intervention orders had been taken out against him by Mr [B], Mr [C], Ms [C] and [their] son after he sent the letters of apology in 2012.
The Tribunal queried Mr [A] that his evidence seemed to indicate that he had not been threatened personally by any of these people and his family had not been harmed as a consequence of his offences in December 2011. The Tribunal noted that Mr [B], Mr [C] and Ms [C] had not responded to his letters of apology when they could have responded indicating that they did not accept the apology or indicating they wished him harm, but did not, suggesting that they simply want nothing to do with him. The Tribunal added that the [social media] messages, while not pleasant, were not threatening or indicating a strong desire to harm him. Mr [A] replied that they could not initiate contact with him while he was in prison as all contact was vetted and they did not know where he was. He added that his case [details deleted]. He added that Mr [C] and Mr [B] had not known about his relationship with Ms [C] prior to that. The Tribunal asked Mr [A] whether Ms [C] had disclosed their relationship. He said he was not sure if she had or not and commented that she did not want it disclosed in court. He indicated that he thought she was still in Australia but did not know if she had remarried.
Considering the available evidence the Tribunal does not consider Mr [A] faces a real chance of serious harm from Ms [C] should he return to India. There is nothing in the evidence to indicate or suggest that she or her family members in India have ever threatened Mr [A] or his family members. She appears to still be living in Australia where she has formed a new relationship and to have no interest in Mr [A], adverse or otherwise.
Considering the available evidence the Tribunal also does not consider Mr [A] faces a real chance of serious harm from Mr [B] should he return to India. The evidence indicates that Mr [B] is now living in [Country 1] and has been living there since approximately 2013. While Mr [A] thought his father may have talked with Mr [B] after Mr [A] was arrested in December 2011 and Mr [B] may have sent messages to Mr [A’s] [social media] page in 2012, there is nothing to indicate or suggest that he is intent on seeking revenge on Mr [A] or his family. While the Tribunal notes Mr [A’s] comments that his father did not tell him about the nature of any discussions he may have had with Mr [B] in 2012 because he did not wish to cause his son stress, the Tribunal would expect that if it was the case that Mr [B] in the past or subsequently had threatened to cause Mr [A] serious harm Mr [A’s] family would be aware of such threats and would have warned Mr [A] about them.
Considering the available evidence the Tribunal finds that it cannot rule out the possibility that Mr [C] may still harbour a desire to take revenge on Mr [A]. The Tribunal considers this is the case because it accepts Mr [A’s] evidence that Mr and Ms [C’s] relationship broke down, that Mr [C] may blame Mr [A] for this because Mr [A] had an affair with Ms [C], because Mr [A] was convicted of intentionally causing injury to Mr [C], and because the Tribunal accepts Mr [A’s] evidence that Mr [C] has been deported or removed to India. The Tribunal considers that in these circumstances Mr [C] may harbour a grudge against Mr [A]. This is even though the Tribunal finds that there is no firm evidence of this in terms of clear or persistent threats from any party to cause harm to Mr [A] or his family. In this context, and as discussed with Mr [A], the Tribunal finds that the messages sent to Mr [A’s] [social media] account in [2012], while unpleasant, are not threats to do him physical harm, make him pay for his past actions or to kill him. The Tribunal also accepts that caste differences between Mr [A] and Mr [C], and notions of family and caste honour, could play into any desire on the part of Mr [C] to seek revenge on Mr [A], noting relevant country information regarding the significance of caste in parts of India and indicating that honour crimes do continue to occur, particularly in northern India.[10] As discussed with Mr [A], the Tribunal notes that the country information indicates that the risk of harm based on family ‘honour’ varies depending heavily on individual family beliefs and that the risks tend to be lower in the case of more educated and urban based families.
[10] DFAT Country Information Report, India. 17 October 2018, sections 3.42-3.46.
Relevantly to s.5J(1)(c), however, the Tribunal considers that the real chance of harm Mr [A] faces from Mr [C] relates to Punjab state and does not relate to all areas of India, the receiving country. In reaching this finding the Tribunal notes that Mr [A] indicated that Mr [C] and Mr [B] had both lived close to where his father lives in Punjab state. The Tribunal considers that there is nothing to indicate or suggest that Mr [C], his family, associates or agents are actively threatening or pursuing Mr [A] or his family. Mr [A’s] family have not come to harm in the seven years since his offending against Mr [C]. The Tribunal considers that if Mr [A] and Mr [C] were in close proximity in India or came into contact with each other, there may be a real chance that there would be violence, but considers that if Mr [A] lived in another part of India away from Punjab state and took reasonable measures to ensure his return to India and location was not well known (such as avoiding social media) he would not face a real chance of serious harm from Mr [C], his family and associates or agents in another part of India.
The Tribunal discussed the issue of relocating within India with Mr [A] at the hearing. Noting his evidence that he had lived outside of Punjab for the first 20 years of his life and preferred living outside Punjab, the Tribunal put to Mr [A] that India is a country of nearly 1.3 billion people with approximately 50 cities with more than a million inhabitants,[11] and commented that he could live in Mumbai or Pune in Maharashtra state, or in Delhi, and in the context of his conversion to Christianity, the Tribunal suggested he could live in the southern states of Kerala or Tamil Nadu, where there is a stronger Christian presence. Mr [A] said he did not like the idea of living in Delhi at all. He also referred to an example where an Indian national wanted for sex offences in Australia [had] been arrested in Delhi after Punjab police harassed his family so that they revealed his whereabouts. He said he wanted to be a free person and to be able to live his life as a free man and not experience such things. He added that he also did not want his parents and family to have to face harassment due to him. The Tribunal put to Mr [A] that the circumstances of the example he gave and his circumstances are quite different in that he is not wanted for any crimes either in India or in Australia, so police would not harass his family to find his location so that he could be extradited to Australia. The Tribunal also put to Mr [A] that he could return to India but not tell his parents where he was living so if questioned by police or anyone else about his whereabouts they could honestly say they did not know where he was living. He replied that is not an easy argument for them to make as he is their son. While the Tribunal accepts that this might be uncomfortable for his parents it considers it is not unreasonable for Mr [A] not to disclose his whereabouts to his parents if he is concerned that they may be pressured to reveal where he is living and this could put him at risk of harm from Mr [C].
General caste issues
[11] UK Home Office, Country Policy and Information Note, India: Internal relocation, January 2019, section 3.1.3.
The Tribunal asked Mr [A] why he thought his being a Sikh and his caste could lead to massive issues (as claimed in his submission of 22 June 2017). He replied that he was having a relationship with a married Jatt woman. He added that could be a big deal including for his parents. The Tribunal finds that the evidence indicates that his parents remain supportive of Mr [A]. There is nothing in the evidence to indicate or suggest that they wish to cause him any harm.
In relation to caste issues generally, the Tribunal put to Mr [A] that his evidence did not indicate that his caste had proved a barrier to him in past as it was clear that his caste had not stopped him achieving in his education, work or in having friendships with people from a wide range of backgrounds. The Tribunal commented that despite his caste he had lived with Mr [B], Mr [C] and Ms [C] in Australia. Mr [A] replied that it was 28 years before he found out what his caste is and that he had only found this when he went to Punjab state. He said he does not judge people by caste and did not disclose his caste. He added that he did live with people from the Jatt caste and with Hindus but commented that he is quite fair. He indicated that if asked about his caste he said he was a Jatt so people did not know. He said it was only when he went to Punjab that he found caste is this big thing stopping him being successful and not marrying. Mr [A] also indicated that [the] community is aware of his circumstances. The Tribunal finds that Mr [A’s] evidence indicates that his caste background has not been a big determining factor in his life. As put to Mr [A] at the hearing he had not raised his caste in his original statement of claims and it did not appear to have been a big issue for the first thirty years of his life. The Tribunal commented that he was able to attend [a] school where he leant English, undertake tertiary level study, secure good employment where he used his English language skills communicating with [customers] about [products], travel to Australia for further study, and appears to have had a wide circle of friends from various backgrounds in India. The Tribunal also notes that Mr [A] has provided four recent character references from four different Indian friends. Considering Mr [A’s] past history the Tribunal does not accept that his caste will prevent him from marrying or being successful if he returns to India. The Tribunal concludes that there is not a real chance that Mr [A] will suffer persecution involving serious harm due to his caste and/or being of Sikh origin should he return to India.
Fear of harm from the Indian authorities
The Tribunal asked Mr [A] why he thought he would be mistreated by the Indian authorities if he returned to India. He said he had heard many stories and had cited the example of Mr [D] who had been at [prison] with him and had been deported to India when he finished his sentence. He said [Mr D] later told him that he had been held for 11 hours at the airport and interrogated about what had happened and why he had been arrested and deported. Mr [A] commented that [Mr D] had been imprisoned for [what] was not a very serious offence and yet was still questioned for 11 hours. He said it has happened to others as well. He added that what he has put in his application is what he has heard from people because he did not have access to search engines like Google when he was in prison. He suggested that the delegate was quoting information from Google which does not reflect what happens currently. The Tribunal put to Mr [A] that the delegate has quoted information which is from DFAT which Departmental delegates as well as the Tribunal is required to consider, and noted that it is also quite common to also consider information from the Canadian and UK governments as the three countries all experience high rates of immigration from India which raises common issues and the three countries share this information.
The Tribunal put to Mr [A] that if someone is deported to India the Australian authorities have to let the Indian authorities know they are bringing that person back against their will and let the authorities know when they are arriving. The Tribunal commented it is understandable that the Indian authorities would want to question that person to satisfy themselves both regarding the person’s identity and also that the person does not present any risk to India and is not wanted for any offences in India. The Tribunal put to Mr [A] that the relevant country information seems to indicate that if someone has served time for offences in Australia for offences committed in Australia, they would not be charged in relation to those offences in India. The Tribunal quoted from the DFAT Country Information Report in relation to the Treatment of Returnees which indicates that DFAT is not aware of any evidence of mistreatment of returnees, including failed asylum seekers, by Indian authorities. The report states that India does not have a centralised registration system in place to enable police to check the whereabouts of inhabitants in their own state, let alone in other states or union territories. It notes that the Department of Home Affairs is required to notify Indian authorities prior to the arrival of removals from Australia but does not track returnees after their arrival in India and that a February 2015 report by the UK Home Office considered it unlikely the police, or any person or body would be able to locate a person who had fled to another state or territory.[12]
[12] DFAT Country Information Report, India, 17 October 2018, section 5.20.
The Tribunal also noted that UK Home Office reporting drawing on a 2014 UK Upper Tribunal decision commented that the Upper Tribunal (UT) held that ‘India is a country of 1.2 billion people and we have not been drawn to any evidence that there is a central registration system in place which would enable the police to check the whereabouts of inhabitants in their own state, let alone in any of the other states or unions within the country. We consider the possibility of the police, or any other person or body, being able to locate, at the behest of an individual’s family, a person who has fled to another state or union in India, to be remote.’ The report also states that tracking and surveillance systems appeared to be limited and there is no centralised registration system in place to enable police to check the whereabouts of inhabitants in their own state or in other states or union territories (see Police ability to locate a person). Each state and union territory has responsibility for its own separate police force and effectiveness and conduct varies across states.[13]
[13] UK Home Office, Country Policy and Information Note, India: Internal relocation, January 2019, section 2.3.

Mr [A] commented that he had obtained the same wording off the internet some years ago and the wording comes from India rather than from the UK, and he does not believe that what it says is actually the case. He said India does not provide correct information to other countries. He commented that Canada, the UK and US is the ‘highlighted spot’ for Indians and India would never want to disclose the ‘dark secret of that country’ to a country where Indians are seeking to go for a better life. The Tribunal commented that the wording is from an Upper Tribunal decision in the UK rather than from Indian authorities. The Tribunal also added that it is not sure that it is a dark secret to have information systems that can record where people are across different parts of India rather than having people think India does not have the technological capability to be able to monitor the movement of its people. Mr [A] commented that they do have knowledge because he got his passport in Delhi and they definitely know he is here because it was written in the papers and when the Indian consul visited him in 2011 he had information about him. He said his local police station would know he is not in that city at the moment. When asked how he knows that he commented they definitely share information. He commented that three years ago the Prime Minister of India indicated that he wanted to know how many people went to Australia and they asked every house to provide information so they could match what they had. He said he asked his parents not to fill in that form because the government already had the information.
The Tribunal accepts that Mr [A] would likely be questioned by Indian authorities on his return to India, and that this would include questioning about his offending in Australia. The Tribunal accepts that this could take 11 hours or more, as in the example he gave. The Tribunal does not consider that such questioning amounts to persecution. Mr [A] indicated that he is weary of talking about his offending and would not cooperate with Indian authorities who sought to question him about it. The Tribunal considers this unlikely, as it would only delay his re-entry to India and make the situation more unpleasant and protracted than it need be. The Tribunal finds there is nothing to indicate or suggest that Mr [A] would be arrested or mistreated as he has not committed any offences in India and has fully served his seven year sentence for the offences committed in Australia.
The Tribunal accepts that the Indian authorities at the airport may pass on advice to the authorities in his home area that he has returned to India, and that those authorities may be aware or may be made aware of his convictions in Australia. The Tribunal does not accept that there is any evidence to indicate or suggest this would result in Mr [A] being harassed by local police or framed for crimes that might occur in the local district.
In relation to the issue of Mr [A] relocating to another part of India, to remove the risk of him coming into contact with Mr [C], his family, associates or agents, and whether police authorities across India would be aware of his background, the Tribunal prefers the advice from DFAT and the UK Home Office to Mr [A’s] view. The Tribunal finds that Mr [A’s] comments are based on speculation and considers that his example of Indian authorities writing to households to confirm who is in Australia undermines his claim that the authorities already have this information and have the capacity to share it. The Tribunal finds that the country information indicates that Mr [A] could relocate away from Punjab to another area of India without the local police being advised of and aware of his background and that there is not a real risk that he would be harassed or questioned by police in his new location in relation to crimes that occurred there or that he would have false charges framed against him, or that police in the new location would advise the police in his home town of his new address, enabling third parties such as Mr [C] to locate him.
Conversion to Christianity
The Tribunal asked Mr [A] about his conversion to Christianity. He said he did that for himself, commenting that he had a very tough life from the beginning when he moved to Punjab and had never seen success. He said when he came to Australia he was going to a Sikh temple in [a location] every day but when he was sent to prison he stopped praying to God because he was unhappy within himself. He added that he was in depression for three years, [details deleted] and was not able to make an appointment with the psychologist to deal with this thing. He commented that his situation was really bad and he could not see a way out and that he felt stuck with people who were taking advantage of him and had made their lives based on his life.
He said that when [details deleted] in August 2018 he saw the prison chaplain [and] decided to become a Christian, because he can read English and understand what is going on and pray every day. He commented that it is not a desperate attempt to get a visa so he can stay here rather he did it for himself for peace of mind. Mr [A] added that that was why he had not sent a copy of his Baptism certificate to the Tribunal.
The Tribunal asked Mr [A] whether he had any concerns regarding his having embraced Christianity if he was to return to India. He commented that his parents will definitely say something about it and his relatives are already talking about it but he just wants to do what makes him happy. He added that he does not want to give anything negative to his children if he has children adding that he will not marry an Indian girl as while he is related to them by community or blood he does not feel related to them.
The Tribunal discussed with Mr [A] the following country information about religion drawn from the DFAT Country Information Report:[14]
·Section 25 of the Indian Constitution guarantees the right to freely profess, practise and propagate religion, and section 26 guarantees every religious denomination or any sect the freedom to manage its own religious affairs. Section 15 of the Constitution prohibits discrimination against any citizen on the grounds of religion.
·Federal law provides minority community status to six religious groups: Muslims, Sikhs, Christians, Parsis, Jains and Buddhists. State governments can grant minority status to religious groups that are minorities in a particular region.
·Christians constitute approximately 2.3 per cent of the population.
·Christianity is the majority religion in the north-eastern states of Mizoram, Nagaland and Meghalaya, and has a strong presence in the southern states of Goa, Kerala and Tamil Nadu.
·DFAT assesses that most Christians live day-to-day without societal discrimination or violence. Christians engaged in proselytising, or perceived to be proselytising, particularly to Hindus, face a moderate risk of official and societal discrimination, and a moderate risk of societal violence.
[14] DFAT Country Information Report, India, 17 October 2018, sections 3.11-3.15.
Mr [A] commented that he does not have any problem with the country information, adding that even in Punjab they have Christians. He said he is not against any religion and becoming a Christian was just his choice to be what he wants to be, and reiterated that he did not do it to get a positive outcome from any visa process.
The Tribunal accepts Mr [A’s] account of why he became a Christian and finds that it was not conduct engaged in to strengthen his claims to be a refugee. Accordingly, the Tribunal finds that this conduct does not raise issues under s.5J(6) of the Act. The Tribunal finds that Mr [A’s] evidence indicates that he does not fear harm as a consequence of having converted to Christianity. The Tribunal finds that the relevant country information also indicates that Mr [A] does not face a real chance of suffering persecution involving serious harm on return to India as a consequence of having become a Christian.
Mental health issues
The Tribunal accepts that Mr [A] has suffered depression in the past and that he may have [details deleted] while he was on remand and in prison. The Tribunal accepts that he was assisted by the Chaplain at [Prison] and that his having embraced Christianity has assisted him. The Tribunal accepts that Mr [A] is also getting some assistance from the mental health service provider in immigration detention. The Tribunal notes that Mr [A] has not made any claims that he would not be able to access appropriate mental health support services in India if required for any reason, including one of the five reasons set out at s.5J(1)(a) of the Act.
Conclusion – refugee ground
Having carefully considered Mr [A’s] claims both individually and cumulatively, all the available evidence and the relevant country information, the Tribunal concludes that Mr [A] does not face a real chance of suffering persecution involving serious harm from Mr [B], Mr [C] or Ms [C], their families, associates and agents, his family, the Jatt caste Sikh community or the Indian authorities due to his nationality, race or religion or because he is a member of particular social groups comprising his lower caste group members or people convicted of having committed a crime, or because he had an affair with Ms [C], if he returned to India.
As the Tribunal does not accept that Mr [A] faces a real chance of persecution involving serious harm the Tribunal finds that he does not require the protection of the Indian authorities.
For the reasons given above, the Tribunal is not satisfied that Mr [A] 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 there is not a real chance that Mr [A] would suffer persecution involving serious harm from Mr [B], Mr [C] or Ms [C], their families, associates and agents, his family, the Jatt caste Sikh community or the Indian authorities due to his nationality, race or religion or because he is a member of particular social groups comprising his lower caste group members or people convicted of having committed a crime, or because he had an affair with Ms [C], if he returned to India.
In considering whether there is a real risk that the applicant would suffer significant harm if returned to India, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[15]
[15] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
The applicant has not advanced any claims indicating that he considers he would face a real risk of significant harm if returned to India other than for the reasons discussed above relating to his claims under the refugee criterion. Given the Tribunal does not accept that the applicant faces a real chance of suffering persecution involving serious harm if he returns to India, the Tribunal, having regard to the findings of fact set out above, also finds that there are not 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 would suffer significant harm in the form of being arbitrarily deprived of his life; having the death penalty carried out on him; being subjected to torture; being subjected to cruel and inhuman treatment and punishment; and/or being subjected to degrading treatment or punishment by Mr [B], Mr [C] or Ms [C], their families, associates and agents, his family, the Jatt Sikh caste community or the Indian authorities, or anyone else, as a necessary and foreseeable consequence of his being removed from Australia to India.
In reaching this conclusion the Tribunal is mindful of its finding above that Mr [A] might face a real chance of persecution from Mr [C], his family, associates and agents if he returned to Punjab state but that this real chance of persecution does not relate to all areas of the receiving country. The Tribunal notes that in relation to internal relocation the complementary protection criterion requires consideration of whether it is reasonable in the sense of practical for the applicant to relocate to a location in his receiving country away from his home area.
The Tribunal has given consideration to whether in Mr [A’s] individual circumstances it is reasonable for him to relocate to a place in India away from Punjab state where he would not face a real risk of significant harm from Mr [C], his family, associates and agents. The Tribunal finds that this is the case. This is because Mr [A] is a single man without children who speaks English well and also speaks Hindi, two major languages in India which are spoken in most states in India (as well as the native state language). He is tertiary educated in India and has acquired further qualifications [in] Australia. In the past he has secured employment in India in [a certain] sector and in [Occupation 1], where his English language skills were of particular assistance to him because [customers] speak English. Mr [A] also secured a variety of work in Australia, including in a [Business 1], [Business 3], [Business 2] and [Occupation 2]. He has shown a degree of adaptability in travelling to Australia to undertake study and finding accommodation including living with other Indian nationals to minimise costs and in finding employment. He has indicated that in the first twenty years of his life he lived in four other states of India and that he did not particularly like living in Punjab. He has indicated a desire to live his life independently of his family. His level of education, past work experience and English and Hindi language skills suggest that he should be able to find employment quickly on his return to India and relocation to an area outside of Punjab. He could access an area of India outside of Punjab by flying in to an international airport outside of Punjab state such as in Mumbai or Delhi or Chennai or Kolkata. Considering his personal circumstances the Tribunal concludes that it would be reasonable in the sense of practicable for Mr [A] to relocate to an area of India outside of Punjab to avoid a real risk of suffering significant harm from Mr [C], his family, associates and agents.
In reaching this conclusion the Tribunal has considered Mr [A’s] past mental health concerns and that he indicated that he is currently engaging with mental health support services while in immigration detention. As noted above, Mr [A] has not made any claims that he would not be able to access appropriate mental health support services in India if required for any reason, including to assist him with dealing with the pressures of relocating to a new location within India.
The Tribunal also considers there is nothing to indicate or suggest that Mr [A] would be denied mental health services if he sought to access them anywhere in India because there was an intention by the relevant authorities or service provider to cause him to be subjected to cruel and inhuman treatment and punishment and/or degrading treatment or punishment.
Consequently, the Tribunal is not satisfied that Mr [A] 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.
…

[2019] AATA 2305

12 April 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice