1716205 (Refugee)

1716205 (Refugee) [2022] AATA 1338 (22 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1716205
COUNTRY OF REFERENCE:                   Nepal
MEMBER:Jessica Henderson
DATE:22 March 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 22 March 2022 at 3:18pm
CATCHWORDS
REFUGEE – protection visa – Nepal – particular social group – survivors of domestic violence and sexual assault – single women – religion – Christian convert – conversion to Christianity – traditional Hindu background – parental response to conversion – mental health – right to enter and reside in India – Treaty of Peace and Friendship between India and Nepal 1950 – violence against women in India– decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 and Border Protection on 28 June 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Nepal, applied for the visa on 10 February 2016. The delegate refused to grant the visa on the basis of a finding that the applicant had a right to enter and reside in India as prescribed in s36(3) of the Act, that she had not taken all possible steps to avail herself of that right, and that there was not a real chance or a real risk that she would suffer either serious or significant harm in India.
The applicant appeared before the Tribunal on Monday 17 January 2022 to give evidence and present arguments.
The applicant was represented in relation to the review by [Ms A], a legal practitioner at [Law Firm 1].
BACKGROUND
The applicant provided the Tribunal with a copy of her Nepali passport issued [in] 2012, which shows that she was born in Kathmandu, Nepal on [date]. The Tribunal notes that the delegate was satisfied as to the applicant’s identity and validity of her identity documents. The Tribunal is satisfied of the applicant’s identity, nationality and date of birth.
The applicant claims to have completed higher secondary education in Nepal before deciding to study a bachelor’s degree in [Discipline 1] in Australia. For the reasons set out below, the Tribunal finds the applicant’s evidence persuasive and accepts her evidence of her education in Nepal and her reasons for travelling to Australia.
The applicant has otherwise provided the following background, which for reasons set out below the Tribunal accepts as fact.
The applicant arrived in Australia [in] June 2013 on a subclass 573 Higher Education Sector visa (student visa) to study a [Qualification 1] ([Discipline 1]) at [University 1].
Between June 2013 and May 2014 the applicant completed a [Qualification 2] at [Education Provider 1]. In the second part of 2014 she completed a [Qualification 3] at [Education Provider 2]. She then commenced a [Qualification 4].
On 21 January 2015 the applicant’s student visa was cancelled. The cancellation and its circumstances are the subject of other proceedings in this Tribunal. It is clear from those proceedings that the fundamental issue was the applicant’s inability to obtain required scores in English language testing.
The applicant worked as a [Occupation 1] for [Organisation 1] from December 2013 until May 2015 and for [Organisation 2] from November 2015 to the date of her application for protection.
On 10 February 2016 the applicant applied for a protection visa, which was refused on 26 June 2017.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
Section 5J(3) provides that a person does not have a well-founded fear of persecution if he or she could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country. However, this does not apply to a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or that would conceal an innate or immutable characteristic, or to a modification that would require the person to alter his or her religious beliefs (including by renouncing a religious conversion), conceal his or her true religious beliefs, cease to be involved in the practice of his or her faith, conceal his or her true race, ethnicity, nationality or country of origin, alter his or her political beliefs, conceal his or her true political beliefs, conceal a physical, psychological or intellectual disability, enter into or remain in a marriage to which that person is opposed, accept the forced marriage of a child, alter his or her sexual orientation or gender identity, or conceal his or her true sexual orientation, gender identity or intersex status.
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
Subject to s 5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. Section 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The first issue in this case is whether the applicant has a well-founded fear of persecution in Nepal because she has converted to Christianity or for any other reason. If the Tribunal decides that issue in the negative, then the issue will be whether there are substantial grounds for believing that as a necessary and foreseeable consequence of removal from Australia there is a real risk that the primary applicant will suffer significant harm in Nepal. If the Tribunal decides either of the first two issues in the affirmative then the Tribunal will need to consider both those issues in relation to India, where it is put that the applicant has the right to reside.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Evidence before the Tribunal
The applicant’s agent sent comprehensive submissions to the Tribunal dated 10 January 2022 (pre-hearing submissions).
The pre-hearing submissions attached 38 documents, including:
a.The applicant’s passport;
b.A statutory declaration signed by the applicant;
c.Letters from the applicant’s colleagues and mentors in her church;
d.Letters from the applicant’s psychologist and GP, together with a mental health plan for the applicant;
e.Previous AAT decisions said to be relevant; and
f.Publications from DFAT, Freedom House, the Human Rights Council, and multiple media outlets dealing with matters said to be relevant to the applicant’s claims. The Tribunal commends the breadth of research undertaken by the applicant’s solicitor.
Further submissions (dated 14 February 2022) were sent to the Tribunal after the hearing (post-hearing submissions).
The post-hearing submissions attached:
a.a report and CV of [Mr B];
b.documents evidencing the status of single, Christian women in India; and
c.information about the applicant’s employability in India.
Applicant’s English language
The applicant filed a statutory declaration dated 10 January 2022 (Declaration) in which she deposed to the matters that she says are relevant to her claim for protection.
The fluency of the Declaration led the Tribunal to speculate that it might have been written in the words of the applicant’s solicitors rather than the applicant herself. However, the idiom and inflexion of the applicant’s speech during the hearing before the Tribunal were consistent with the Declaration. The applicant’s spoken English is very good; the Tribunal would go so far as to say that it is much better than some witnesses whose first language is English.
It is curious, then, that the applicant’s student visa was cancelled in circumstances where she failed to meet the English language requirements, not once, but multiple times.
The Tribunal invited the applicant to make enquiries as to whether she suffered from a recognised learning disability which was interfering with her ability to read. That invitation led to the applicant providing the Tribunal with the report of [Mr B]. [Mr B] formed the view that the applicant did not suffer from dysgraphia.
The Tribunal nonetheless finds it significant that the applicant has mastered spoken English to such a high level whilst still having demonstrably less capacity to read. That point will be returned to later in these reasons.
Applicant’s relationship with her father and mother
The applicant’s 866C visa application form included the following in response to question 91:
My Father is a very angry and abusive man and has treated me badly right from when I was a small child. If I displeased him he would beat me with a bamboo rod.
as I grew older the emotional and physical abuse continued and i would get a beating for example not being able to read from a book the way that he wanted me too. In my teen years he would beat me with his Policemans riot stick which left me bruised and battered and emotionally and mentally exhausted. I have tried to commit suicide a couple of times because of my feelings of worthlessness and lack of love from my father and family
When I was very young I have witnessed my Father hit my Mom and being disrespected and emotionally abused. Mom tried to commit suicide along with my brother and me.
Since being in Perth I have met some wonderful men who are husbands and and (sic) Fathers and realize how much of a brute my father is.
He will definitely harm or even kill me if I was to return to Nepal
In response to question 92 (reasons why the applicant did not try to seek help) the applicant said:
My Father is a Police Officer in our community and since being very young have been taught to believe that parents have every right to beat or even kill their children if they disobeyed them and it is so needed to keep their standing in the community. So I just got used to the situation and put up with it making the best of it that I could.
The applicant’s evidence to the Tribunal was that both her parents were employed with the police, her father as an [Occupation 2] and her mother as a [Occupation 3].[1] They lived in an accommodation block specifically allocated for [specified] police personnel, together with around 50 other families who had some connection to the police; her childhood friends and acquaintances were therefore all police officers or the children of police officers.[2] As her parents were both relatively senior in the police force they had respected standing in the community, and the applicant did not think they could be challenged or disrespected without there being significant repercussions.[3]
[1] Declaration at [6]
[2] Declaration at [7]
[3] Declaration at [8]
The applicant says that she was abused by her parents from before she can remember until the time when she departed for Australia.[4] The only exception was the period of time that she spent at a boarding school and the period of her [Discipline 1] training when she lived in student accommodation.[5]
[4] Declaration [11]
[5] Declaration [20] – [21]
The earliest incident of abuse that she reports is one that she does not have an independent memory of – she says that her mother told her about it.[6] She says that “…when I was young my father would make me read to him from a newspaper, and when I struggled to read, he would beat me for it.”[7] She goes on to say:
[6] Declaration [11]
[7] Declaration [11]
My father would abuse me for no reason – I was just his punching bag. For example, he used to beat me for watching television when I was not allowed to. This happened all throughout my childhood. Sometimes my father would come home in the evenings and if he saw me watching television he would go downstairs, break a bamboo branch off and use this to beat me. This kind of physical abuse was a regular, almost daily occurrence. His most common form of abuse was to hit me with a bamboo stick.
…
…when I was in my early teens…my father became so angry that I locked myself in the bathroom to try and get away from him. He banged so hard on the bathroom door that I thought he would break it down. He was threatening to break my legs. I asked my mother to try and stop him but she could not do anything. Hiding in the bathroom, I was so scared that I thought I would rather die than be here. I closed my mouth and my nose, and I tried to stop myself from breathing, hoping that I would just die. I could not kill myself though, so I sat for about an hour in the bathroom and waited for my father to calm down. When I eventually came out of the bathroom, my father was less angry, but he still beat me with the bamboo stick.[8]
[8] Declaration [12]-[14]
The applicant says that her father used to show his police revolver to her and tell her that he would kill the whole family and then himself.[9]
[9] Declaration [15]
The applicant says that her mother was also a victim of her father’s physical abuse, and that her mother told her that she had contemplated jumping off the balcony with both the applicant and her brother.[10]
[10] Declaration [25]
The applicant says that for much of her childhood she ‘just wanted to die’ and that she tried and failed to kill herself.[11]
The applicant’s evidence is that her mother also abused her, but it was verbal and mental abuse rather than physical.[12] She recalls her mother calling her a whore and telling her she would not amount to anything; such comments were made on a regular basis and in front of the applicant’s friends.[13]
The Tribunal questioned the applicant about the above evidence at the hearing. The applicant’s matter of fact recitation of the above facts was compelling and persuasive. The Tribunal accepts that the applicant is telling the truth and finds that the above incidents of domestic violence did occur as reported by the applicant.
The Tribunal is also persuaded by the applicant’s logic in not reporting the domestic violence. There is no evidence before the Tribunal to suggest that the applicant’s reporting of her parents’ professions and accommodation is not accurate, and the applicant was a credible and persuasive witness. The Tribunal finds that the applicant’s parents both held senior roles with the police and lived in an apartment complex that was exclusively occupied by families connected with the police. In such an environment, the Tribunal accepts that the applicant had no reasonable expectation of obtaining protection from her father by police intervention.
The Tribunal finds that the applicant is a survivor of severe domestic violence, relevantly including violence connected with her learning literacy skills.
Family religion
[11] Declaration [52]
[12] Declaration [25]
[13] Declaration [25]
The applicant’s evidence to the Tribunal is that she grew up in a strongly Hindu family. She said in her Declaration:[14]
[14] [9]-[10]
9. My family are all Hindu and have a strong tradition of Hinduism going back generations. My mother’s family were High Priests and my mother’s brother-in-law has taken over responsibility as High Priest. When I was young, my family would travel to [Village 1] for significant festivals. Here, the children would be ‘worshipped’ as part of the festival by having their feet washed and being given money. My mother’s older sister would take us to the temples and in the evening my godmother would also take me to the temples. The High Priest would conduct all the traditional ceremonies and we would present a tray to the priest to take inside the temple. Everyone in [Village 1] knew about our family’s importance as a priestly family in the Hindu tradition.
10. Our household also had the traditional temple inside of it. My mother had designated space in our house just to place the idols to worship. Every morning she goes to worship and once a week she would fast. Because she favours the god Shiva, she had to fast on a particular day. My father would also worship with my mother, and he used to put a tika on. Hinduism was a very significant part of my life growing up and an important belief for my family.

The Tribunal accepts the applicant’s evidence and finds that the applicant comes from a traditional Hindu background, in which her family has featured prominently in the traditions of the faith, providing the High Priests and conducting the traditional ceremonies. The Tribunal finds that the applicant’s mother is a particularly devout follower of Shiva.
Sexual assaults
The applicant says that she is a survivor of sexual assault, on two separate occasions.[15] On the first occasion, she was on a date with someone she had met on Facebook and he took advantage of a rain shower to get her into a private room, where he raped her.[16] On the second occasion, she was tricked into going to the home of a casual acquaintance, where he raped her.[17] She told the Tribunal at the hearing that she felt a significant loss of worth after the first rape because she was no longer a virgin. She recalled festivals in which all the girls who were still virgins were worshipped, and she knew that she was no longer special. After the second rape she described feelings of foolishness and disbelief that she had ‘let it’ happen again.
[15] Declaration [26]
[16] Declaration [26]
[17] Declaration [27]
The applicant’s accounts to the Tribunal of both assaults, and her feelings associated with them, ring with authenticity. The Tribunal finds that the applicant has been sexually assaulted on two occasions, in the circumstances described by the applicant. The Tribunal also finds that the applicant’s loss of virginity in violent circumstances whilst she was unmarried had a very strong impact on her sense of self-worth, particularly in light of her mother’s verbal abuse to the effect that she was a whore.
The applicant gave evidence at the hearing that she could not report either rape to the police or her parents because virginity is so highly prized in the Hindu faith. She was unwilling to admit that she had lost her virginity, because “[n]ews that a woman has been raped spreads quickly through the community and if people find out then no one will marry you.”[18]
[18] Declaration [28]
The 2016 DFAT Report for Nepal (which is close in time to the events described by the applicant) included the following paragraph:
[3.50] DFAT assesses as credible reports outlining women’s fear of, and related actual experiences of, sexual harassment and violence on the street (including rape and other forms of physical attack such as murder and mugging) and in the home. DFAT assesses that social stigma, cultural taboos about sexual violence and the fear of retaliation by the perpetrators prevent women from reporting criminal activity. Women’s fear of potential violence or attack can restrict their freedom of movement.
It corroborates the applicant’s fear of social stigma if she reported the assaults to Nepali authorities.
The Tribunal finds that the applicant did not report either assault because she reasonably feared that the risk of social stigma outweighed any benefit of reporting the assaults.
Applicant’s conversion to Christianity
The applicant’s 866C visa application for included the following in response to question 90:
While I was pursuing my [course], I came across a friend from Nepal who was a Christian. (in August 2013) We talked about our faith and beliefs, I was a Hindu,
She invited me to attend her church, [Church 1], which I very much enjoyed and realized the freedom that comes from following Christ and his teachings. I became more interested and continued attending on a regular basis (1 year ) I was confused for a time and was scared about this path I was taking and the impact it will have on my family if they were to find out. Since attending [a named] Christian Fellowship I have become a Christian and this is a total rejection of my Fathers Hindu religion
My family has a strong connection to the Hindu religion , my grandfather being a High Priest and my Father is an important figure in our community being also a Policeman for many years.(He is the local law)
I am now regarded by my father as a traitor and he has disowned me as a daughter and family member (see e-mail attached) he has withdrawn his support from me and has threatened to physically harm me by breaking my legs. ( he has threatened that in the past) I have no standing in our community and country as Christians are not recognized neither do they have any rights or privileges I will have no where to live nowhere to find employment as Christians do not get jobs, no qualifications that would get me employment and will face persecution from my family and friends who will also disown me. I will be completely Alone.
The applicant expanded on the history of her conversion in her Declaration.[19] She set out details of churches that she had attended, and the reason for change. She described staying in touch with the services during the Covid19 lock downs in 2020, and her involvement with the Church choir.
[19] See Declaration [33] – [41]
What has persuaded the Tribunal that she is a genuine convert, however, was the oral evidence that she gave to the Tribunal at the hearing. The applicant described how she had felt when she had heard the parable of the lost sheep and heard that Jesus had died for her (her emphasis), and her dawning belief that there might be a God that would care about her individually and want her to be found and healed. The applicant was clearly fighting tears as she described the moments when she realised that she was important to the Christian God. It is the Tribunal’s assessment that her emotion was genuine.
The Tribunal heard the applicant’s evidence about her Christian conversion in the context of the applicant’s evidence about the prominent role of Hinduism for the people who had abused her in her childhood, and her evidence of feeling ashamed and worthless after the sexual assaults, in part because of the loss of her highly prized virginity.
The applicant provided the Tribunal a letter from the wife of her pastor. The author details meeting the applicant in November 2014 and deposes that the applicant undertook weekly bible readings over a period of about 3.5 years, as well as regularly attending Sunday services.
The author says, and the Tribunal accepts, that the applicant was baptised by the pastor on 18 December 2016. She goes on to say:
While our Bible studies have ceased, I have continued to mentor [the applicant], when needed. Due to distance and work schedule conflicts, [the applicant] stopped attending our church sometime in 2018. I never doubted [the applicant]’s faith in Jesus Christ during the times we met and believed she was genuinely following the Christian faith. I believe that [the applicant] is an asset to our community and workforce. She has been honest, patient and trustworthy as a [Occupation 1] over many years.
The Tribunal finds that the applicant has genuinely put her faith in Christianity and become a committed Christian.
Parental response to conversion
The applicant says that she made the decision to tell her mother about her conversion and her desire to be baptised sometime in early 2016. She reports that her mother told her she was brainwashed, that she could not leave Hinduism, and that it would embarrass the family if she came back to Nepal a Christian.[20]
[20] Declaration [43]
In February 2016 the applicant says that she received an email from her father in which he asked her why she had decided to change her religion when Hinduism had been the family religion for generations.[21] She replied setting out the importance of Christianity to her, and asking him to respect her beliefs, telling him that she loved him.[22] He responded by email that he disowned her as a daughter and forbidding contact with all family members.[23] That email included an explicit threat to break her feet if she came near him again and a reminder of his ‘reach’ across Nepal.
[21] Declaration [44]
[22] Declaration [44]
[23] Declaration [44]
The Tribunal accepts that the applicant’s father has disowned her with threats of violence if she returns to Nepal and finds that the father’s threat of extreme violence is credible in the circumstances. The Tribunal accepts that his reference to his position was a reference to his role in the Nepali police force, which would enable him to locate the applicant anywhere in Nepal and preclude the applicant seeking the protection of the police.
The applicant says, and the Tribunal finds, that she has had no contact with her parents since that exchange.
Summary of background findings
Collectively, the Tribunal’s findings about the applicant thus far are as follows:
a.the applicant comes from a traditional Hindu background, in which her family has featured prominently in the traditions of the faith, providing the High Priest for multiple generations.
b.From an early age until she left for Australia in 2013 the applicant was physically and verbally abused by her parents. Aside from periods when she was at boarding school and living in a [college], the abuse occurred almost daily and included beatings with a bamboo stick, threats of extreme violence, threats of death, being spat on, and being called a whore.
c.Sometime in 2010 or 2011 the applicant was sexually assaulted. She was still a virgin at the time. She was sexually assaulted by a different person in 2012 in circumstances that led her to feel like she was at least partly responsible for the attack because she should have known better than to enter a man’s home.
d.The applicant did not tell anyone in Nepal about either sexual assault.
e.Sometime in late 2013/early 2014 the applicant first attended a Church in Australia with a Christian friend. She has subsequently become a committed Christian and been baptised.
f.When the applicant’s father found out about her conversion he disowned her and made a credible threat of extreme violence if she returns to Nepal. His role in the Nepali police precludes her seeking protection from him from the police and gives him a long ‘reach’ across the whole of Nepal.
Mental health
The applicant gave evidence that she has had suicidal ideations since childhood, and that she has self-harmed by cutting until relatively recently.
The applicant gave evidence to the Tribunal that she first sought counselling in 2014, but that she found the counsellor unhelpful and stopped attending. On 2 December 2021 she was diagnosed with Generalised Anxiety Disorder by her GP and referred to a clinical psychologist for psychological intervention.
The Tribunal has been provided with a psychological assessment report on the applicant from [Mr B] ([Mr B] Report). [Mr B] examined the applicant after the hearing for the purpose of providing an expert report to the Tribunal.
[Mr B] reported that the applicant was a reliable historian who presented with symptoms consistent with severe Posttraumatic Stress Disorder (PTSD), as well as anxiety and depression, and that she ‘currently struggled to effectively function’. He says that she struggles with social connection, and that “[h]er ongoing trauma-symptoms appear to disrupt her self-regulation”.
[Mr B] tested the applicant’s cognitive abilities. On 8 February 2022 he administered the Repeatable Battery for the Assessment of Neuropsychological Status – Form A (RBANS) to measure her neurocognitive status. His report indicates that the RBANS is ‘shown to be a reliable and valid measure’ of neurocognitive ability and that her overall performance was in the low average range, reflecting that she out-performed 19% of peers her age. The language sub-tests (measuring basic language abilities) fell in the low average range, reflecting that she out performed 23% of her age matched peers.
[Mr B] also administered the Wechesler Individual Achievement Test, Third Edition, Australian (WIAT-III) on the same day. The WIAT-III is designed to measure academic achievement; academic abilities learned through schooling. Her Written Expression composite score fell in the high average range, reflecting that she out-performed 79% of age matched peers. In particular, her sentence writing and essay writing both fell in the high average ranges, where she outperformed 87% and 75% of her age-matched peers respectively.
The report concludes that if the applicant were to relocate to India she would “struggle to manage self-care, let alone finding or maintaining employment”.
Whilst [Mr B] emphatically concluded that the applicant does not suffer from dysgraphia he did suggest that “issues with examinations could be driven by her poor mental health”.
The Tribunal finds that the applicant has Posttraumatic Stress Disorder, and that it interferes with her ability to make social connections, her ability to self-regulate, her capacity to find employment, and (importantly) her ability to demonstrate her not inconsiderable academic ability during examination.
Codified refugee criteria
The applicant submits that, if returned to Nepal, she faces a real chance of persecution on the basis of:
a.Her Christian religion;
b.Her membership of a particular social group, namely Christian converts in Nepal;
c.Her membership of a particular social group, namely single women in Nepal; and/or
d.A combination of the above.[24]
[24] Pre-hearing submissions at [37]
75.     The Tribunal finds that the applicant is also a member of a particular social group comprising survivors of domestic violence and sexual assault.
76.     The applicant’s father has perpetrated systemic domestic violence against her since her early childhood and into her early adulthood. He has previously threatened to break her legs, and now threatens to break her feet. The Tribunal accepts that it is likely that there is a real chance that he will do so if she returns to Nepal.
77.     The applicant’s father has not previously sought the applicant out and committed any violent act during times when she was living in Nepal outside the family home. However, the importance of the Hindu faith to the applicant’s family, and the applicant’s repudiation of it, are very significant. The Tribunal is satisfied that there is a real chance that if the applicant returns to Nepal her father may seek her out for the purpose of violently punishing her.
78.     The 2019 DFAT Report on Nepal suggests that authorities generally do not prosecute domestic violence cases, even when the perpetrator is not, himself, a police officer.[25]
[25] 2019 DFAT Report on Nepal [3.67]
79.     The Tribunal finds that the applicant’s father’s [senior role] with the Nepali police adds to the real chance that the applicant will not be protected by the police. DFAT reports that the Nepali police are limited by “nepotism and a culture of impunity”.[26] The Nepali police enjoy a poor human rights reputation, with DFAT reporting that the use of torture to extract confessions is common.[27]
[26] 2019 DFAT Report on Nepal [5.7]
[27] 2019 DFAT Report on Nepal [4.10]
80.     The applicant also fears harm from the broader population and authorities in Nepal. According to the 2019 DFAT Report on Nepal, Christians make up a very small 1.4 per cent of the population.[28] The majority of Christians are reportedly from marginalised groups, for whom Christianity provides an escape from the caste system, and Hindu citizens converting to Christianity have been known to experience ‘low level societal or family discrimination which may vary according to their personal and family circumstances’.[29] Proselytising is banned, and the ban is enforced.[30] Small scale terrorist events against Christians do occur, with Hindu nationalists claiming responsibility.[31]
[28] 2019 DFAT Report on Nepal [3.28]
[29] 2019 DFAT Report on Nepal [3.31]-[3.32]
[30] 2019 DFAT Report on Nepal [3.29]
[31] 2019 DFAT Report on Nepal [3.30]
81.     The 2019 DFAT Report on Nepal relevantly states:
3.64 Nepali women and girls across society, regardless of their economic, caste or ethnic status, are vulnerable to violence in many forms, including rape, sexual abuse and human trafficking. Nepal’s laws contain a narrow definition of rape and have a 180-day limitation period for filing complaints. The 2017 criminal code set new, higher gaol sentences for rape, however DFAT is not aware of whether this provides an effective deterrent. Police frequently fail to register complaints or investigate and prosecute rape cases, and often divert cases to settlement though informal justice mechanisms, particularly in rural areas.
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3.68 Sexual harassment is a commonly reported problem.... penalties are not severe enough to act as a deterrent. Women who work in the informal sector are particularly vulnerable to sexual harassment.
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3.71 Nepali women rarely receive the same educational, employment and economic opportunities as men. Girls in particular are vulnerable to early marriage which disrupts or ends their formal education. Single women and widows are particularly vulnerable. While a widowed woman is legally entitled to her late husband’s estate, many widows are unaware of their rights or unable to enforce them due to traditional attitudes and weak legal protections
...
3.75 DFAT assesses that women in Nepal face high levels of societal and official discrimination and a moderate risk of violence. However, the experience of individual women varies. Women from poorer or lower-caste backgrounds experience a higher risk of discrimination and violence.
82.     USDOS 2018 issued March 2019 adds the following:
NGOs reported that violence against women and girls, including early and forced marriage, was one of the major factors responsible for women’s relative poor health, livelihood insecurity, and inadequate social mobilization and contributed to intergenerational poverty...
Discrimination: Although the law provides protection, women faced systemic discrimination, including in employment and especially in rural areas.[32]
[32] USDOS 2018 issued March 2019     The applicant left Nepal at the age of [age] to travel to Australia. Prior to that, she had never lived independently of her parents; on both the occasions that she lived away from home she stayed in student accommodations paid for by her family. Even so, by the age of [age] she had experienced two instances of sexual assault at the hands of different perpetrators.
84.     In assessing what amounts to serious harm, it is necessary to have regard to personal attributes, including the personal vulnerabilities of the Applicant. The Tribunal has accepted that the applicant is a survivor of sexual and physical assault and abuse. She struggles with PTSD and suicidal ideation as a result of her past trauma. The experiences of abuse make the applicant particularly vulnerable to certain types of harassment and abuse which appear to be prevalent in Nepal. Her inexperience at independent living and the country information that she is likely to experience systemic discrimination in employment conflate the risk of serious harm.
85.     The Tribunal finds that there is a real chance that if the applicant returns to Nepal she will experience serious physical harm, as well as serious mental harm and serious economic hardship.
86.     The Tribunal finds that the essential and significant reason for the harm to the applicant will be a combination of her Christian faith and her membership of two particular social groups being single women and survivors of domestic violence and assault.
87.     The applicant has a well-founded fear of persecution in Nepal for a refugee nexus reason.
Has the applicant taken all possible steps to avail herself of a right to enter and reside in India?
88.     Section 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. They provide as follows:
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.
89.     This means that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s 36(4), (5) or (5A) are satisfied, in which case the s 36(3) preclusion will not apply.
90.     The delegate refused to grant the applicant’s visa on the basis of a finding that the applicant had a right to enter and reside in India as prescribed in s36(3) of the Act, that she had not taken all possible steps to avail herself of that right, and that there was not a real chance or a real risk that she would suffer either serious or significant harm in India.
91.      The applicant has a prima facie right to enter and reside in India pursuant to the Treaty of Peace and Friendship between India and Nepal 1950. The 2019 DFAT Country Report for Nepal reports that relocation is a common experience for Nepalis, and that the open border arrangement with India, as per the 1950 India-Nepal Treaty of Peace and Friendship, allows large numbers of Nepalis to travel to and from India each year or reside in India on a long-term basis.
92.     A December 2020 USAID report, The Impact of COVID-19 on Migrants in Asia and the Pacific - Rethinking Resilience, provides an overview of the general situation for Nepali in India:
Nepalis are legally allowed to work in India and can, in principle, avail themselves of the same privileges as Indian citizens with the exception of voting rights. The ease of cross-border movement to India makes migration to India relatively inexpensive when compared with migration from Nepal to Gulf Cooperation Countries (GCCs) or Malaysia, and as a result Nepali migrants of lower socioeconomic status generally use the Nepal-India corridor. Many of these migrants are seasonal workers from rural areas in Nepal’s West who move to India to work during the agricultural off-season in Nepal. Most of these migrants participate in low-skilled work in India’s informal economy, with no job security and few protections. These migrants’ families are highly dependent on their remittances: 85 percent of remittances from India are spent by households on daily consumption, compared with 50 percent of remittances from GCC countries and Malaysia. The precarity of these migrants’ situations is evident in the fact that 86 percent of cross-border migrants who return to Nepal after migrating to India continue to work in the informal economy in Nepal (compared with 31.2 percent of Nepali migrants returning from overseas destinations). This implies that crossborder migration is, for many of these migrants, an essential survival strategy rather than a path toward upward mobility.[33]
[33] ‘The Impact of COVID-19 on Migrants in Asia and the Pacific - Rethinking Resilience’, USAID, December 2020, pp.41-42, 20210709155324
93.     The Tribunal finds that the applicant does have the right to relocate to India, and the ability to do so directly from Australia given her valid Nepali passport.
Is there a real risk that the applicant will suffer significant harm in India?
94.     Subsection 36(3) of the Act does not apply if the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion in the relevant third country, or there are substantial grounds for believing that, as a necessary and foreseeable consequence of availing herself of her right to enter and reside in the third country, there would be a real risk that she will suffer significant harm in that country: s.36(4).
95.     There is a substantial body of independent evidence that women are at risk of violence in India. The Tribunal refers in particular to the DFAT Report on India, which states:
3.117 Despite the plethora of laws to prevent crimes against women, in practice violence against women in India continues. Violence can occur throughout the life cycle from pre-birth to infancy, childhood, adolescence and adulthood, and can include sexual, domestic and dowry-related violence.
3.118 According to NCRB data for 2018 (latest available), there is one dowry death in the country every 78 hours, one act of sexual harassment every 59 minutes, one rape every 34 minutes, and one act of torture every 12 minutes. Almost one in every three married women experiences domestic violence. The NCRB reports women are most at risk in the states of Assam, Haryana and the union territory of Delhi.
3.119 There are sociodemographic and sociocultural risk factors for various forms of violence and abuse towards women in India. These include patriarchal attitudes towards marriage and motherhood; stigmatisation of unmarried, separated or divorced women; illiteracy and low education levels; low socioeconomic status; and lack of independent income. The custom of dowry and gifts for husbands and inlaws has been found to be strongly related to violence against women in India. According to academics, there is a high risk of violence against women who have a higher economic status than their husbands and who are seen as having sufficient power to challenge the traditional gender roles. [emphasis added]
…
3.125 The PWDVA requires the states to provide shelters, counselling services and legal aid to survivors of domestic violence; however, the quality and availability of services are limited in practice. Local sources claim women’s shelters in India are run very strictly and do not always provide a safe environment. Shelter residents have reportedly described conditions as ‘unhygienic’ and ‘jail-like’. Shelters were first established to ‘protect’ vulnerable women from prostitution and trafficking rackets under the Immoral Traffic and Prevention Act, 1956. As such, there is stigma associated with attending shelters, with women seen as ‘immoral’ or ‘deviants’ for doing so. Researchers report a shortage of data on the facilities available across states, and on the experiences of women residents in state and NGO-run shelters.
3.126 Local sources told DFAT there are about twenty shelters across the state of West Bengal, with many women staying more than a decade in the shelters. Sources report rehabilitation is difficult and few women have viable options to leave. Women accessing shelter services are often stigmatised and their families ‘will not take them back’. DFAT is not aware of shelter numbers in other states.
3.127 Counselling services tend to be of poor quality and limited availability. Lawyers Collective Women's Rights Initiative reports a mismatch between the availability of counselling services ‘on paper’, and the quality, nature and professionalism of such services. The provision of counselling services as mandated by PWDVA envisions empowering survivors. However, in practice, women often choose ‘reconciliation’ with perpetrators of domestic violence due to a lack of alternative options, such as economic and housing support or reliable social security schemes.[34]
[34] DFAT Country Report pp 41-2
96.     The Tribunal notes the emphasised risk factors above, all of which attach to the applicant, who presents as significantly less literate and educated than she is, due to her PTSD and the trauma associated with her past.
97.     The applicant is also a Christian convert. The Country Information with respect to Christians in India is to the following effect:
3.55 A rise in Hindu nationalism has coincided with increasing incidents of violence and discrimination against Christians. Christians have increasingly faced poorly founded legal proceedings and police reports, difficulties for churches and NGOs dealing with local government authorities, public statements by officials denigrating Christians, and threats or acts of violence. India ranked 10th on Christian support organisation Open Doors’ 2020 World Watch List of countries where Christians experience the most discrimination (see Conversion and anti-conversion laws). The organisation claims discrimination is strongest for converts; police rarely intervene when Christians are harassed; and Christians are monitored online and in their communities (but did not specify by whom).
…
3.61 DFAT assesses most Christians live day-to-day with low levels of societal discrimination and violence, although incidents of communal violence against Christians have increased with the rise of Hindu nationalism. DFAT assesses Christian converts and activists, and Christians who are involved (or are perceived to be involved) in proselytisation, particularly to Hindus, face a moderate risk of official and societal discrimination. DFAT assesses the risk is higher for Dalit converts and Christians considered to be of a low caste, given their intersectional identities.[35] [emphasis added]
[35] DFAT Report on India pp 31-2
98.     Further, the DFAT information on reconversion of Christians to Hinduism is disturbing. It is to the following effect:
3.30 Reconversion (‘ghar wapsi’ programs) are carried out by a number of Hindu organisations…
3.31 Local sources report instances of violence linked to religious conversion. According to Indian nonprofit organisation Persecution Relief, in February 2019, 40-year old Anant Ram Gand, a Christian convert, was beheaded in Raigarh Tehsil, Odisha. Villagers who had opposed his conversion nine months earlier allegedly armed local Naxals to carry out the murder, claiming the man would reveal Naxal secrets to the police. A week before the attack, seven villagers had reportedly given Gand an ultimatum to renounce Christianity or face death. In February and May 2019 respectively, two men were killed in Chhattisgarh following opposition to their conversion to Christianity. On 24 October 2019, a Christian, Pastor Saanvi, was beheaded in Odisha after warnings to stop his ministry work.[36]
[36] DFAT Report on India pp 27-8
99.     The Tribunal has found that the applicant is a single woman displaying known risk factors, and a convert to Christianity. It is abundantly clear that, for these reasons, she would face a real risk of violence if she relocated to India.
100.     The Tribunal has previously considered the issue of a female Nepalese individual’s right to enter and reside in India in similar (albeit not identical) circumstances. The Tribunal referred to the DFAT reports for Nepal and India, as well as reports that identified that Nepalese women were a specifically vulnerable target for forced labour and sex trafficking, and remarked that:
it appears that sexually-motivated harassment and violence remain a problem of significant scale in India, and access to police and judicial intervention for victims is often poor. Thus, even with some family support, the Tribunal considers that this applicant faces a small but real risk of harm that would constitute degrading treatment or punishment for the same reasons as those explained above in relation to Nepal.[37]
[37] 1515288 (Refugee) [2019] AATA 4066 at [127]
101.     The Country Information suggests that the situation for vulnerable women has, if anything, degenerated since 2019. There is no evidence on which the Tribunal could find that the applicant would be protected against violence by the local police in India.
102.     Accordingly, the Tribunal is satisfied that for the reasons above, that in the particular circumstances of this case, the conditions prescribed in s.36(4) are satisfied such that s.36(3) does not apply.
103. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
104. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Jessica Henderson
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 1338

22 March 2022

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