1718327 (Refugee)

1718327 (Refugee) [2022] AATA 1085 (15 February 2022)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1718327
COUNTRY OF REFERENCE:                   India
MEMBER:Alan McMurran
DATE OF DECISION:  15 February 2022
DATE CORRIGENDUM
SIGNED:10 March 2022
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

Amend the Cover Sheet to read:
MEMBER: Alan McMurran
DATE OF DECISION: 15 February 2022
Alan McMurran
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1718327
COUNTRY OF REFERENCE:                   India
MEMBER:15 February 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 15 February 2022 at 12:43pm

CATCHWORDS
REFUGEE – protection visa – India – religion – Hindu in Sikh-majority area – general corruption and difficulty finding employment – credibility – no harm experienced – expressed intention to remain in Australia – two voluntary returns – delay in applying for protection – applied after further student visa refused – employment and relationship with Muslim woman – country information – endemic corruption does not give rise to well-founded fear of persecution – relatively high risk of unemployment and general risk of violence and crime affects population generally – government mechanisms and possibility of relocation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1), 5J(1)(a), 36(2)(a), (aa), (2B)(c), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1993) FCR 220
MIMA v S152/2003 (2004) 222 CLR 1
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Selvadurai v MIEA& Anor (1994) 34 ALD 347
SZLVZ v MIAC [2008] FCA 1816

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 17 August 2017 for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 27 July 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 India, applied for the visa on 12 November 2015. The delegate refused to grant the visa on the basis that the applicant is not a refugee and not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or 36(2)(aa) of the Act. The delegate found that the applicant had not presented any information that he faces a well-founded fear of persecution for any refugee reason and does not face a real risk of harm if returned to India.
The applicant appeared before the Tribunal by video using MS Teams on 25 January 2022 to give evidence and present arguments. The Tribunal hearing was conducted in the English language, at the request of the applicant and without the need for an interpreter. The Tribunal formed the view that the applicant spoke fluently in English. The applicant did not raise any concern reflecting any language issue, and the Tribunal did not detect any. The hearing was conducted in accordance with the Tribunal’s COVID-19 Practice Direction, which the Tribunal deemed appropriate in accordance with its statutory objective of providing a mechanism of review that is fair, just, economical, informal, and quick.
The applicant was not represented in relation to the review. The applicant indicated he was willing and ready to proceed, having provided all relevant information. The applicant has had a representative to assist him in the past and told the Tribunal he did not think he needed assistance on this occasion and did not want an adjournment.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case are:
a.Whether the applicant meets the refugee criterion and is a refugee and entitled to a protection visa because of a well-founded fear of persecution, and that there is a real chance, if the applicant returns to his country of nationality, that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion;[1]
or if not,
b.whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his country of nationality, there is a real risk that he will suffer significant harm.[2]
[1] The Act, s 36(2)(a), and s 5H (“refugee”) and s 5J (“well-founded fear”) definitions.
[2] s 36(2)(aa).
The Tribunal has had regard to the Act and Regulations; an electronic copy of the Department’s file and record of interview, the Department’s Refugee Guidelines[3] and relevant country information, the applicant’s oral evidence, and information generally available from the internet.
[3] PAM3.
Nationality
It is accepted that the applicant is a national of the Republic of India (“India”) on the basis of his Indian passport submitted to the Department, and his oral evidence, and the Tribunal will assess his claims on that basis.
The Tribunal finds that India is the receiving country for the applicant for the purposes of

s 36(2)(aa).
Background and claims
The Tribunal explained to the applicant the requirements for meeting the refugee threshold for the protection visa. The Tribunal indicated in summary that the facts needed to establish that there is a real chance the applicant has a well-founded fear of persecution, should he return to India. The Tribunal explained that the applicant must show not only that he was afraid, but that his fear was well-founded based on persecution for one or more reasons being his race, religion, nationality, or membership of a particular social group, or his political opinion.
The applicant is a citizen of India and said at the hearing that his birthdate was [Year], not [an earlier year] as recorded. He said he is currently [Age] years old and living in Adelaide where he moved approximately six weeks ago. He said he is also known as “[Nickname]” at his workplace. In Australia, the applicant has two [cousins], both Australian citizens, living in Sydney.
In India, the applicant’s father passed away in May 2017, and his mother who is on a pension, lives in the Punjab with his [brother] who is married with [children] and works as [an Occupation 1]. He also has [a] sister who is married also living in Punjab in Kapurthala.
The applicant came to Australia [in] May 2008 on a student visa, where he has lived continuously save for two return visits to India in July 2012 and March 2013. The applicant developed a gambling habit while in Australia and did not complete his student courses, which for reasons associated with enrolments, resulted in cancellation of his student visa in March 2015. The applicant sought a Protection visa in November 2015 and has been awaiting the outcome while living and working in NSW. He is currently living [in] South Australia where he recently moved to be near his partner and is being trained as [an Occupation 2] by [Employer]. He currently earns enough to be self-sufficient and does not wish to return to India for the reasons set out below.
Claims
The applicant sets out in his application in November 2015 that he left India in May 2008 for a better life in Australia and to study. He says that he does not believe he could live in India as well as he lives in Australia. He said his family have a lot of expectations of him personally.
The applicant claims that he comes from Kapurthala, a city of approximately 100,000 people in Northern India, and the capital of Punjab state. He is part of the Hindu minority living there where he states there is religious unrest due to “holy book desecration”. He believes if he returns to Punjab, he will be threatened and attacked because people in Australia were responsible for the “desecration”. He said there was a riot and that people were killed.
He believes after such a long time in Australia, he will be psychologically harmed and his life radically impacted because his parents would not have the support they need on his return. He claims the public system is corrupt and cannot help him. He believes the Sikh community will mistreat him mentally and physically evidenced by recent (2015) unrest in Punjab, where minority Hindus are targeted. He does not believe public authorities can protect him as they do in Australia and he would not be able to relocate anywhere in the country as it is all “the same”.
In a Department interview on 16 December 2016, the applicant stressed his parents were worried about him, that his father was ill on [Treatment] and his mother [Physical condition]. The applicant said at that time (2015) he had no income, no money and credit card debt. He said he had neglected his studies through gambling and could not return to India because of family expectations, having told them he had gained permanent residency in Australia. He said returning to India he would become depressed living at home and that the country is corrupt and not a good place to live. He said he would find it difficult to get employment. He said his brother-in-law had been injured in a fight, which could happen to him as well.
At the Tribunal hearing, the applicant claimed he has two [cousins] living in Sydney who are now Australian citizens. Both have been in Australia for several years. He told the Tribunal his father had now passed away in May 2017, and his mother was living with his [brother] and his family in Kapurthala city, Punjab. He said his mother receives a pension through her husband’s former [employment]. His brother is [an Occupation 1] and self-supporting and his [sister], who also lives nearby in Kapurthala is married with [children]. The applicants family are Hindu. He thought he may have more distant relatives in Delhi or other parts of India but does not speak with them. He said he regularly communicates with his mother but is estranged from his [brother], who is “only concerned about money”.
He said he had never worked in India, having obtained a university degree (Bachelor of [Subject 1]) from university in Punjab in 2007, before coming to Australia in 2008. He said he had discussed the matter with his father about corruption in India and talked about going overseas with a friend who came to Australia to study, about that time. He decided he should leave India and would need to complete an English-language course as part of his student visa application. Someone in Punjab had helped him with his student visa application which was approved on 12 May 2008 for him to travel to Australia to study [Subject 2]. He said after arriving in Sydney, he started his [Subject 2] at [College 1], while living in [Suburb 1]. He lived with some Hindu and Sikh friends and commuted to complete the course. He said he had failed a subject and did not obtain his diploma and he did not have the money to pay for further course fees. He said he had worked approximately 20 hours per week during the course [in] Newcastle, where he stayed with Indian friends, as the course involved only two student days per week and left him free to work shifts for the remainder.
He claimed he had developed a gambling habit and had saved very little from his weekly income ($350), which is why he could not pay further course fees. He said he became addicted using [Gambling provider] and spent almost everything he earned other than for rent and food. In 2010, he said he borrowed money from his cousin in Sydney to commence a course in [Subject 3] at [Suburb 2] in Sydney. He said he continued working in a [Workplace] in Sydney earning between $350-$450 a week but again spent most of his income gambling. He said in 2011 as he knew his student visa was ending, he was looking for a sponsor for permanent residency, for a job as [an Occupation 3], but was unsuccessful. He said he tried enrolling in another course at [College 2] in Sydney and obtained a third student visa for the period 25 November 2011 to 30 September 2013. He said he only attended the course for approximately six months in 2012, and which he did not complete. He said he was unable to concentrate on his studies or focus on his career, as his only interest was gambling. He said from about 2011, he was only interested in attempting to find ways legally to remain in Australia. He said when his fourth student visa application was refused in March 2015, he had read the decision by the Department which he felt was “correct”, as it was true that he was trying to remain in Australia.
He said although he had applied to the Tribunal for a review of the student visa refusal, he did not stay in contact with his agent and did not participate in the Tribunal process or the review. The Department’s 2015 student visa refusal was affirmed by the Tribunal as the applicant did not appear.
He said he was left with only one option to try and remain in Australia, by seeking protection. He said the agent advised him he would need to return to India unless his protection application was successful and which meant he would need to demonstrate his life was in danger. When asked to explain this claim, he told the Tribunal he did not think he could survive in India now, mentally, after having lived in Australia since 2008. He claimed he had not told his family about his course enrolments, his non-attendance, and the refusal of his student visa application, telling them instead that he was “proceeding to permanent residency”. He told the Tribunal his protection visa was due to his concerns he would not be able to survive in India and because he had misled his parents about their expectations.
The Tribunal asked the applicant about his understanding of the situation currently in Punjab. The applicant said he believed it was “getting worse” as the majority of the population were Sikhs. He said Hindus comprise less than 20%, and every day there are “some hate things going on”. He said the current Modi government is hard-line Hindu and confronting minorities all over India, which does not help in Punjab where Hindus are the minority. The applicant said he cannot see himself “mentally handling the system and the corruption” and the existing hate between the different religions. He said it affects everyone, and particularly him after living for so long in Australia. The Tribunal referred the applicant to a DFAT report[4] on corruption in India which it states is endemic, and which affects all Indians. He agreed.
[4] DFAT Country Information Report India (10 December 2020)
He was asked if he returned to India, who might harm him, and he responded that “no one directly wants to harm me”. He gave an example of his brother-in-law who got caught up in an affray in India in 2014/15 and was attacked along with his sister. He said there was an ongoing police case against the group that made the attack, and that there had been no harm since that time. He was not involved.
The Tribunal discussed with him whether his fear was well founded based on particular facts and objective information the Tribunal should consider. He said he could only speak “theoretically” on the basis of his understanding and personal belief that he might be at high risk of being harmed. He says he is personally afraid to return and does not want to try and prove to the Department that his theory is “well-founded” by returning to India and then being harmed. He said he does not want to risk his life and suffers from anxiety at the thought of returning and facing the corruption and being harmed and does not want “to risk it”. He said the broader community in India may be “used to it”, but after so long in Australia he would find it very difficult.
He was asked if there were any other reasons for him fearing his return to India. He said he has another personal reason which he has not disclosed to his family, as he has found a Muslim girlfriend in Australia. He said that being her partner means both he and she might be targeted if they return to India. He said she is currently a student in Adelaide, which is where he has also relocated a few weeks ago. He said he has found work as [an Occupation 2] with [Employer] and is paid approximately $700-$750 per week. He said he ceased his gambling habit about one year ago and is still regretful of his previous gambling activity which had led to him dropping out of his studies. He said the day-to-day life in India and political activity there from various political parties leads to intermittent conflict and mistreatment of minorities, all of which will cause him mental harm and has fuelled his personal fear.

He was asked why he could not relocate somewhere else in India, outside Punjab. He said he would not want to return to his hometown or anywhere else in India. He said he wants to remain in Australia and bring his mother to live here, if granted protection. He said he would find it very difficult to obtain employment in India. He said in summary he claimed he would not survive living in India, his life would be at risk and he would be at high risk of being harmed, especially after living in Australia since 2008. He said he would not want to be part of Indian society and the corruption involved in finding and then keeping employment.
The Tribunal referred the applicant to information it relied upon in the current DFAT report from December 2020. The Tribunal has set out relevant information from the report below raised with the applicant, but in response, the applicant did not agree the report was factually accurate. He said the level of corruption in India is underestimated, considering the size of its economy and population, which is on a par with China and Russia and other dictatorships. He said Australia is in a far better position than India, and he rejected the suggestion the DFAT report meant India is still a safe place for him to return.
He was asked how he was affected personally and in a different way as compared to living conditions for Indian people generally, and why it would be so different for him. He said he could produce information from media about reports on what is really happening in India and wanted an opportunity to provide the Tribunal with information on current conflict. The Tribunal agreed he could have a short period to do so. The Tribunal reminded him he had returned twice to India safely and he agreed he had visited for periods of a total of nine weeks but was “just visiting”. He said he had lived there for [Number] years and 14 years in Australia and said he is now much involved in the community in Australia and has employment. He said he has never worked in India because of corruption and does not want to be involved in corruption to become employed in India in order to survive. The Tribunal put to the applicant that his desire not to return to India because he disliked it was not evidence of a well-founded fear of persecution. The applicant maintained that he could not return because he had lived in Australia so long that he would find it impossible now to accept an Indian lifestyle with its corruption and unemployment.
The Tribunal reminded the applicant he had already had more than four years to provide further information and submissions since his protection application had been refused but accepted the applicant’s request to provide further information and submissions by 7 February 2022. The Tribunal suggested that providing generalised information about life in India and corruption alongside the current DFAT information may not be particularly helpful and his submissions should reflect his evidence supporting his personal concerns of fearing persecution, which was what he needed to address. Merely reflecting upon life in India currently in a generalised way may not be sufficient as evidence of the applicant’s well-founded fear of his own persecution for reason of race, religion, nationality, membership of a particular social group or his political opinion.
Following the hearing, no further submissions were received from the applicant.
Consideration
When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of credibility of the applicant. When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness, and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons.
The Tribunal formed the view at the hearing that the applicant did not appear unduly anxious or nervous and that his memory as to dates and names and some detail overall was aligned with what might be expected when asked questions covering a period since 2013. The applicant made no complaint that he did not understand the questions and was able to update the Tribunal on events, including the death of his father and the current family circumstances in Punjab.
The Tribunal found the applicant to be candid in his responses to the Tribunal. The mere fact, however, that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed.
Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[5]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[6]
[5] s.5AAA Migration Act 1958.
[6] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[7] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted. In this instance, the Tribunal found the applicant was not dissembling in his responses and was generally credible, even where those responses did not support his claims, such as agreeing that all he intended by the application was to try and find a means to remain lawfully in Australia and not to have to return to a lifestyle in India which he does not want or enjoy.
[7] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p.482
The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.[8] This approach is endorsed in the Department’s Refugee Law Guidelines[9] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (‘UNHCR Handbook’).[10] The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (See MIMA v Rajalingam (1993) FCR 220).
[8] SZLVZ v MIAC [2008] FCA 1816 at [25].
[9] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines). Note that Ministerial Direction No. 84, made under s 499 of the Act, requires the Tribunal to have regard to those Guidelines, where relevant.
[10] UNHCR, re-issued February 2019 at [203]–[204]. Note that the Handbook is not binding on decision-makers.
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[11]
[11] See Selvadurai v MIEA& Anor (1994) 34 ALD 347 at [348].
The applicant is unrepresented. The applicant made no written submissions and relies upon his statements in the Department application form and interview, which he confirmed at hearing are correct, together with his statements and answers in oral evidence to the Tribunal and summarised above. Despite an opportunity to do so, the applicant did not provide any post-hearing submissions.
As set out in Appellant S395/2002 v MIMA, McHugh & Kirby JJ explained that:
The central question is always whether this individual applicant has a well-founded fear of being persecuted for reasons of ... membership of a particular social group.[12]
[12] Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [58]. Similarly, in MIMA v S152/2003 (2004) 222 CLR 1, McHugh J explained at [82] that in determining whether an asylum seeker has a well-founded fear of persecution, the decision maker usually needs to know a good deal more than that other persons holding similar beliefs, opinions or membership of races, nationality or particular social groups have been persecuted. It will ordinarily be necessary to know whether the circumstances of those persons were similar in all material respects to those the asylum seeker is likely to face. Only then will the experience of other members of the relevant category, such as the group referred to by the applicant in this instance, throw light on whether there is a real chance that the asylum seeker will be persecuted for being or having been a member of that group.
The applicant appeared quietly spoken but certain nonetheless in his view that Indian society and government is corrupt and he wants no part of it. He is certain in his own belief that he will find it difficult if not impossible to reconcile living there after so long in Australia. He was also uncertain as to how he might survive as part of the Hindu minority living in Punjab.
The Tribunal is conscious that the applicant must establish on reasonably credible objective information that he will face persecution as outlined in the Act, and not simply because of his personal beliefs. He must demonstrate a well-founded fear of persecution, usually established, and supported by past events, such as threats or harassment or mental or physical injury from known and identifiable persecutors whether individuals or State authorities, and due to the applicant’s political opinion, membership of a particular group, ethnicity, race, or religion. The ‘fear’ element needs to be real in the sense of not fanciful or imaginary and more than just a possibility.
The Tribunal has had regard to current DFAT information, as set out below in detail, discussed with the applicant about India in general, and about the circumstances of Hindus and Sikhs co-existing, and whether there is a risk to the applicant in those circumstances giving rise to a well-founded fear of persecution.
DFAT Country information
The DFAT report notes the following[13]:
[13] DFAT Country Information Report India (10 December 2020)
Corruption
India is a party to the United Nations Convention Against Corruption. The landslide victory of the BJP in 2014 was attributed among other factors to a strong focus on rooting out corruption. The Indian government’s aim with demonetisation of the Indian economy in 2016 was to remove corruption and curb the circulation of ‘black money’ in the Indian economy. However, reports on the effectiveness of demonetisation to meet its stated objectives have been mixed. Some critics argue demonetisation affected the rural and informal cash-based economy more than other sectors. In 2018, parliament passed the Prevention of Corruption (Amendment) Act, which is the major legislative tool covering corruption offences.
Prime Minister Modi has publicly expressed a zero tolerance policy for corruption in government and punitive action has been taken against bureaucrats in departments such as revenue, income tax and customs. Mainstream media and opposition parties, however, have criticised a perceived lack of commitment to take action on high-profile alleged graft cases. GAN Integrity’s India Corruption Report claims corrupt practices such as facilitation payments and bribes persist in India, with corruption particularly prevalent in the judiciary, police, public services and public procurement sectors. The World Justice Project Rule of Law (WJP ROL) Index 2020 measured the rule of law based on a range of factors, including absence of corruption. Factors considered included bribery, improper influence by public or private interests, and misappropriation of public funds or other resources across the executive, judiciary, military, police and legislature (see also Police and Judiciary). In 2020, India ranked 85 out of 128 countries on the index for absence of corruption in government. Within this category, the report found the legislature the most corrupt, followed by the police/military and executive branch. The judiciary was perceived to be the least corrupt. Since 2014, India has consistently ranked low on the WJP ROL indices measuring absence of corruption across government. Similarly, India ranked 80 out of 198 countries on Transparency International’s Corruption Index, 2019 (down from 78^th place in 2018). The presence of corruption in India can lead to high levels of cynicism about new government initiatives and makes anti-corruption a common electoral theme. Access to justice, particularly dealing with Police, is a common complaint, although people’s experience varies greatly from state to state and within states. DFAT assesses corruption remains a part of daily life across India, with facilitation payments and bribes common, particularly at the local level.
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Employment
According to the International Labour Organization (ILO), approximately 67.7 per cent of the population is of legal working age (15 to 64 years). In 2018, the labour force participation rate was 48 per cent (men 74.6 per cent; women 20.8 per cent). The ILO estimated a total unemployment rate of 5.4 per cent in 2019, with youth unemployment at 23.3 per cent (see Economic Overview). Much of India’s labour market is not organised and these figures may not accurately reflect the rates of unemployment. As noted above, unemployment rose significantly in the first half of 2020 as a result of job losses sustained during the COVID-19 pandemic. India’s October 2020 unemployment rate was 6.98 per cent (urban rate 7.15 per cent; rural rate 6.90 per cent), according to data from the Centre for Monitoring Indian Economy. The vast majority of working people are employed in the informal sector. Individuals in this sector experience low job and income security, as well as lower coverage by social protection systems and employment regulation. Over time, workers have been shifting out of the agriculture sector and into the services and manufacturing sectors. However, many of those who are more educated, particularly graduates, cannot find suitable employment. In 2019, graduates aged 20-24 years reported an unemployment rate of over 60 per cent, with non-graduates in this age-group reporting 37 per cent unemployment.
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Security Situation
The security situation in India varies over time and from place to place due to its size and diversity. Civil unrest, including violent rioting, is not uncommon. Drivers of civil unrest are complex and varied and may include: tensions between different religious, social and ethnic communities (see Religion, Caste System and National Register of Citizens); insurgencies, terrorist attacks or protests motivated by ideological or political objectives; tensions along disputed border areas; and tensions within communities over issues such as land ownership and marriage-related disputes.
Crime rates across India vary. Over 5 million cognisable crimes (crimes allowing arrest without a warrant) were reported in 2018, according to government statistics. This represented a rise of 1.3 per cent over the previous year. Crime rates are significantly higher in large cities. Most Indians live their lives with a relatively moderate risk of criminal violence, although violence against women and LGBTI individuals occurs at higher incidences (see Women and Sexual Orientation and Gender Identity).
Misinformation spread on social media occasionally leads to violence. Rumours spread using social media platforms, such as Facebook, Snapchat, Twitter, WhatsApp and YouTube, about alleged crimes including child sexual abuse or human trafficking have led to occasional vigilantism. These events are unpredictable, but tend to occur in rural areas and tend to be localised. In 2020, there was a proliferation of unverified messages and misinformation communicated on digital platforms about the COVID-19 pandemic, contributing to a sense of panic and alarm during the crisis.
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Religion
Religion plays a significant role in daily life in India. According to 2011 census data, almost 80 per cent (more than 1 billion people) in India are Hindus. Another 14.2 per cent are Muslims (just under 200 million), 2.3 per cent are Christians (around 32 million), 1.7 per cent are Sikhs (just over 23 million) and less than 1 per cent are Buddhists (just under 10 million). A further 1.3 per cent (around 18 million) follow other religions including Jain, Zoroastrian, Jewish and Baha’i faiths, and tribal religions.
The level of communal violence (between different religious communities) has ebbed and flowed since independence, but remains an issue in India. Official data shows more than 822 incidents of communal violence in 2017, with around 7,484 communal incidents reported over the 2008-17 period, or two incidents a day, killing more than 1,110 people. The actual figures are likely higher as many incidents go unreported. Religious minorities are especially vulnerable to the threat of communal violence. Muslims, while less than 15 per cent of the population, have typically made up the majority of victims.
Article 15 of the constitution prohibits discrimination against any citizen on the grounds of religion. Article 25 guarantees the right to freely profess, practise and propagate religion, and Article 26 guarantees every religious denomination or any sect the freedom to manage its own religious affairs. National 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.
In 1992, the Government of India set up the National Commission for Minorities (NCM), under the National Commission for Minorites Act. The Act extends to the whole of India and has the powers of a civil court. Five religious communities were included under the Commission’s remit: Muslims, Christians, Sikhs, Buddhists and Zoroastrians (Parsis). Since 2014, the Jain community has also been included. State Minorities Commissions exist in Andhra Pradesh, Assam, Bihar, Chhattisgarh, Delhi, Jharkhand, Karnataka, Maharashtra, Madhya Pradesh, Manipur, Rajasthan, Tamil Nadu, Uttarakhand, Uttar Pradesh and West Bengal. The functions of these Commissions, like the NCM, are to safeguard and protect the interests of minorities provided in the constitution and laws enacted by Parliament and the State Legislatures. Aggrieved persons belonging to minority communities may approach the relevant State Minorities Commission for redressal of their grievances. They may also approach the NCM, after exhausting all other remedies available to them.
In 2018-19, the NCM received 1,871 complaints and heard 44 cases. In 2013-14 (the period encompassing the May 2014 national election), 2,638 complaints were received, the highest number over a ten-year period (2009-19). The top three complaints consistently relate to matters of law and order, service and education. The top three minority complainant communities are Muslim, Sikh and Christian.
In 2006, the Ministry of Minority Affairs (MMA) was established. Its mandate is to formulate overall policy and planning, coordination, evaluation and review of the regulatory framework and development of programs for the benefit of minority communities. Like the NCM, minority communities under its remit are Muslim, Christian, Buddhist, Sikh, Parsis and Jain. The MMA implements various national schemes across educational and economic empowerment, infrastructure development, special needs and financial support to institutions.
The Lok Sabha passed the Citizenship (Amendment) Act (CAA) on 11 December 2019. It came into force on 10 January 2020 and makes religion a criterion for citizenship for the first time. International observers have expressed concern about the CAA. The UN High Commissioner for Human Rights said the law was ‘fundamentally discriminatory’.
Researchers and lobby groups state government officials can be indifferent or complicit in acts of targeting religious minorities. In 2019, Forbes Magazine claimed ‘the discrimination of religious minorities in India is far-reaching and deeply enshrined in law.’ The article cited anti-conversion and anti-cow slaughter laws being used to discriminate against religious minorities or ‘to justify extrajudicial killings, violence and forced conversions of non-Hindus to Hinduism.’ In 2019, Amnesty International reported ‘scores of hate crimes’ against Muslims and other religious and ethnic groups across the country. Human Rights Watch (HRW) reported incidents of mob violence against minorities, especially Muslims, by extremist Hindu groups, and claimed the government was criticised ahead of the 2019 elections for failing to stop such attacks. HRW notes, however, that PM Modi called for inclusive politics after the elections. The Indian Government has rejected as ‘biased’ the United States Commission for International Religious Freedom (USCIRF) 2019 report, which designates India as a country of particular concern for engaging in or tolerating religious freedom violations.
……………………
Muslims
Islam is the second-largest religion in India, with 14.23 per cent of the population identifying as Muslim (approx. 172 million people) (up from 13.4 per cent in the 2001 census). Muslims are the second largest minority group within India after SCs. According to 2019 estimates, India’s Muslim population is roughly the world’s second largest (sitting at 11 per cent of the world’s Muslim population, just behind Indonesia) and the world’s largest Muslim-minority population. Based on 2011 census figures, Muslim majority states or territories are (the erstwhile state of) J&K (68.31 per cent, approx. 8.5 million people) and Lakshadweep (96.58 per cent, approx. 62,270 people). Muslims are a minority elsewhere, although are often concentrated in Muslim residential areas. States with significant Muslim populations include Uttar Pradesh (38.4 million), West Bengal (26.4 million), Bihar (17.5 million), Maharashtra (12.9 million), Assam (10.6 million) and Kerala (8.8 million).
Muslims in India are not a homogenous group; they differ in language (mainly Urdu, but also regional languages), ethnicity, culture and economic position. The vast majority are Sunni Muslims; the remainder are Shia and diverse sects. Indian Muslims are not granted the same constitutional safeguards as SCs or STs, and are not entitled to reservations in employment or education. Although Muslims are not entitled to reserved constituencies in the central or state government assemblies, Muslim parliamentary representation is common, including at the Cabinet level. However, Muslims are under-represented as a proportion of their population. There have been several Muslim Chief Ministers in various states and, to date, two Muslim Presidents of India.
Despite their large numbers, Muslims in practice are under-represented in some areas of employment and administration – although there have been improvements in representation in the civil service in recent years. Muslims are often employed or self-employed in small businesses, artisanship, fishing and unskilled work. Media reports the rate of Muslim migration to large cities is decreasing because Muslims are ‘shut out of the labour market’.
Reported instances of communal tension involving Muslims in recent years, include violence, assaults, riots, religiously motivated killings and discrimination. According to a July 2019 survey by the Pew Research Center, which researched religious restrictions in the 25 most populous countries, India ranked among the top five countries with the highest levels of social hostilities. Hindu nationalist groups, such as the Shiv Sena or the RSS, have been responsible for some incidents, in what some observers claim is a permissive environment (see Hindu nationalist organisations). In March 2019, the UN High Commissioner for Human Rights warned India over ‘divisive policies’ and harassment of minorities, particularly Muslims, Dalits and Adivasis.
Indian Prime Minister Modi and other senior government leaders have emphasised the importance of community harmony and religious groups supporting each other during the COVID-19 pandemic. In an address to the HRC on 30 June 2020, however, the UN High Commissioner for Human Rights expressed concern at reports members of India’s Muslim minority were being targeted by stigma and hate speech associating them with COVID-19. In March 2020, Indian authorities linked cases of COVID-19 to a Muslim missionary movement, Tablighi Jamaat, that had held a religious gathering in Delhi, allegedly in violation of social distancing rules. Subsequently, tweets with the hashtag #CoronaJihad trended on Twitter in India, with Time Magazine reporting its use nearly 300,000 times between 28 March and 3 April 2020. Digital human rights group, Equality Labs, claimed many of the social media posts had not been removed, despite violating Twitter’s rules on hate speech and coronavirus.
………………………………….
Ayodhya – Babri Mosque and Hindu Temple
The centuries-old Babri Mosque, in Ayodhya, Uttar Pradesh, was destroyed in 1992 by Hindu mobs. This led to thousands of deaths across India – mostly Muslims – in subsequent riots. Hindus believe the mosque was built on the same spot Hindu God, Lord Ram, was born, and where a Hindu temple had stood centuries earlier.
In the lead-up to the May 2019 federal election, the BJP made the construction of a new temple at the site an election promise. On 9 November 2019, the Supreme Court ruled that, while the demolition of the mosque was illegal, the site of the destroyed mosque must be handed over to a trust to oversee the construction of a Hindu temple, with land allocated to the trust for construction of a new mosque nearby. Prime Minister Modi welcomed the court’s decision. Following the judgement, the Modi government constituted the 15-member trust (Shri Ram Janambhoomi Teertha Kshetra Trust), with construction initially due to commence in April 2020; however, the nation-wide lockdown due to COVID-19 delayed commencement. On 5 August, a ground-breaking ceremony was held.
During the civil case over the site, union and state governments deployed Special Forces extensively and restricted access to social media in an attempt to maintain law and order among communities. According to media analysis, the Muslim community’s relatively low-key reaction to the ruling was partly driven by fear given the large deployment of police in many cities in the days leading up to the judgement. The main opposition parties largely support the construction of a Hindu temple at the site.
Triple Talaq
In July 2019, The Muslim Women (Protection of Rights on Marriage) Bill, 2019 became law. The law makes void and illegal talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband. Under the law, it is illegal to pronounce talaq (Arabic for ‘divorce’) three times in spoken or written form, or through SMS, WhatsApp or any other electronic chat in one sitting. Any Muslim who pronounces the illegal form of talaq upon his wife can be punished with imprisonment for up to three years, and be liable to a fine. India joins Afghanistan, Bangladesh, Egypt, Morocco, Pakistan, Saudi Arabia, and the United Arab Emirates in banning triple talaq. On the passing of the law, Prime Minister Modi stated on Twitter ‘An archaic and medieval practice has finally been confined to the dustbin of history! Parliament abolishes Triple Talaq and corrects a historical wrong done to Muslim women. This is a victory of gender justice and will further equality in society. India rejoices today!’. Opponents to the law stated it was ‘another attack on Muslim identity under the BJP and marginalises Muslim women even more’.
Campaigners have stated it is not possible to quantify how many cases of triple talaq occur in India. Despite the law, the practice continues, with police investigating cases when reported.
DFAT assesses Muslims face a low risk of official discrimination. DFAT assesses many Muslims live day-to-day with low levels of societal discrimination and violence. Communal violence has occurred in India for many decades. The Muslim community has often been disproportionately affected and the February 2020 Delhi riots marked the latest episode. Hindu nationalist politics has heightened communal tensions in parts of India in recent years. In this climate, there are higher levels of fear in the Muslim community. The risk of societal discrimination and violence is higher for Muslims who are involved in cow slaughter; however, these incidents, while widely reported, have not affected the day-to-day lives of most Muslims.

The Tribunal concludes based on the available country information set out above, and as it may affect the applicant’s claims, as follows.
Firstly, it is accepted that India is a country where corruption is endemic, affecting all Indian citizens. It is part of daily life and not attributable to any particular personal characteristic pertaining to the applicant’s description of his life there with his family. It is part of the general situation in that country. The applicant does not like corruption, especially after experiencing life in Australia. That, however, is not a reason giving rise to a well-founded fear of persecution based on the statutory definitions in s.5J(1) and the ‘real chance’ of being persecuted for any one or more of those reasons. It reflects the state of general society and living conditions in that country which affect the entire population.
The Act sets out[14] that there is not taken to be a ‘real risk’ that a non-citizen will suffer significant harm in a country if the Minister is satisfied that the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. This is the circumstance acknowledged and accepted by the applicant to be the risk confronting him on his return to India. His concern as to possible harm arising from being a member of the minority Hindu population living in Punjab alongside the majority Sikh population is dealt with below.
[14] s.36(2B)(c)
Secondly, it is accepted there is a relatively high risk of unemployment facing graduates in India, such as the applicant. However, the risk of unemployment facing graduates is not personal to the applicant as a graduate, but because the expectations for employment created by higher education have not been realised across the population. Being at risk of unemployment is not persecution for one of the statutory reasons, or because graduates as a particular social group are being targeted. It is because there are not sufficient employment opportunities for them, and which again affects the entire population of young graduates.
Thirdly, it is accepted that crime rates and security in the country will vary from time to time and place to place. As DFAT reports, most Indians across the country live their lives with a moderate risk of criminal violence. The continued risk of violence and crime is not persecution of the applicant for any personal issue he faces, but one affecting the population at large.
Fourthly, it is also accepted that there is a risk of some communal violence facing minority groups throughout the country. DFAT notes that the population is not a homogenous group. The risk pertains to minorities from the majority Hindu population. The Tribunal accepts that the Indian population at large is divided on the issues confronting minorities. The government has taken steps through the implementation of the National Commission for Minorities, and the ability of citizens to bring complaints. The applicant is part of the majority Hindu population, outside Punjab, and where he can reside safely without persecution based on any religious reason in other parts of the country and there is no evidence that as a Hindu, he faces any risk of persecution.
Fifthly, the applicant has not provided evidence of persecution of himself or his family while living in Punjab where the majority population are Sikh, and he faces the same risk as any other Hindu living in that province. He has returned there twice for a total of nine weeks since coming to Australia, and without any harm or threat or injury, and where he lived with his family for [Number] years. The applicant has pointed to no objective evidence to support a finding that he is at risk of being harmed if he returns to Punjab. He claimed in 2015, there were “some hate things going on” and a temple had been desecrated involving Australians. When offered an opportunity to support the claim, nothing was produced, and the Tribunal defers to the DFAT information currently available.
The applicant claimed to be concerned about living in Punjab as part of the Hindu minority and returning to family where he is now estranged from his brother. He gave no examples of the family having any issues or of being persecuted while living there, over many years or having been harmed himself or threatened. The Tribunal accepts that there is an ongoing risk of violence in that province between Sikhs and Hindus, but which is generally at a low level. The Indian Express has recently reported[15] that more recently [emphasis added]:
The year 1984 that saw Operation Bluestar followed by the assassination of Prime Minister Indira Gandhi and anti-Sikh riots in the country did not lead to any communal disturbances in Punjab though the distrust between the two communities was at its crescendo, and terrorists targeted Hindus several times. The militancy was finally defeated not just due to strong police action and political will but also because it lost grassroots support. The villagers ran out of sympathy for the “boys (munde)” as the militants were called. Today, the embers of the movement continue to be stoked in lands abroad by a handful of NRIs but it has little resonance in the state. Targeted killings of right wing Hindu leaders in the state in 2017 were quickly stamped out by the then Capt Amarinder government.
[15] Written by Manraj Grewal Sharma | Chandigarh | September 21, 2021 6:43:34 am
Further, following a recent killing in Kapurthala in 2021 for an alleged potential theft from the Golden Temple, the officiating Director General of Police is quoted as saying:
“I have taken serious note of the unfortunate incidents in Amritsar and Kapurthala. Any attempt to violate the communal harmony in the State will be dealt with a firm hand. Stern action will be taken against all those disturbing the law and order in Punjab.”[16]
[16] The Hindu Times KAPURTHALA/AMRITSAR, DECEMBER 19, 2021
This indicates to the Tribunal that the Sikhs and Hindus generally co-exist peacefully in Punjab, and the State has a mechanism in place to protect the general population. The applicant can expect to receive a measure of protection from that quarter. The Tribunal does not accept the submission that the applicant will not be safe upon his return, any less than any other member of that community. The Tribunal rejects the claim that the applicant is at a risk of significant harm if he returns there and lives among the Sikh population of Punjab. The Tribunal rejects the applicant’s claim that his life is in danger and that he does not wish to prove that by having to retrun.
The applicant has claimed at the hearing that he now has a Muslim girlfriend in Australia. Very little information was forthcoming about the relationship, but the Tribunal can accept that were the relationship ongoing, such that both return to India, the applicant in that relationship would face the same issues affecting other Indian couples, and which may concern the Muslim minority population. Inter-marriage between Hindus and Muslims however is not uncommon and DFAT assesses that many Muslims live day-to-day with low levels of societal discrimination and violence in India, and there is no evidence to find that the applicant would personally face persecution for reason of partnering with a Muslim. DFAT refers to examples of cow-slaughter giving rise to violence against Muslims, but absent any such involvement, such incidents have not affected the lives of most Muslims, who in general face a ‘low risk of official discrimination’. The Tribunal rejects the claim that the applicant would face a well-founded fear of persecution for partnering with a Muslim girl if returning to his family. There is no evidence that the applicant’s family would oppose the relationship or threaten or harm the applicant as a consequence.
In summary, the Tribunal finds that the applicant’s claims that he fears persecution are based on a generalised fear of returning to India on account of the societal conditions he can expect upon return, and which confront the whole population as opposed to the applicant personally or individually. The Tribunal finds there is no evidence of a real chance that the applicant would be persecuted for a Convention reason as set out in s.5 J(1)(a) of the Act.
The applicant has not provided any evidence that he cannot continue to reside with his family in Punjab. He claims instead that anywhere in the country is affected by his same concerns and that nowhere will he be safe in India. The Tribunal rejects entirely that submission and finds that the applicant could relocate anywhere freely within the country should he choose to do so.
The applicant says that he will be mentally affected because he has lived in Australia for such a lengthy period. There is, however, no evidence of any particular mental issue or medical circumstance confronting the applicant, other than a generalised apprehension and anxiety, which is understandable. The Tribunal can accept that it may be confronting for the applicant to have to return after so many years. The applicant, however, came to Australia initially as a student with his parents’ support and to obtain a better education. He concedes that he gave up his studies early on, and then tried to find work instead and a subsequent sponsorship, without success. He has conceded that his application for protection is a last resort on his part, having been advised otherwise that he must leave.
The applicant has not presented evidence of a well-founded fear of persecution for reason of his race, religion, nationality, or membership of a particular social group and as a Hindu living in Punjab. His claim to be persecuted for disliking the current government does not of its own express more than an opposing view of the existing circumstance and politics generally, and there is no evidence of any political activism or opposition on his part or that he has drawn attention to himself in that regard. It is not submitted as a reason for him being personally targeted and the Constitution in India protects non-violent freedom of expression for political beliefs for all Indian citizens.
The Tribunal is also troubled by the applicant’s significant delay – over five years -- in applying for a protection visa. A delay in applying for protection can often be readily explained. However, where the applicant fails to adequately explain their delay in applying for a protection visa, it is legitimate to take into account this delay in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347). The only explanation offered by the applicant is that he was unsuccessful in his fourth student visa application, and that he then had no alternative but to consider a refugee protection visa.
While the Tribunal acknowledges that there are circumstances where applicants may, because of language barriers or other impediments, be unaware that they have the right to apply for a protection visa in Australia, the Tribunal is not persuaded that this is such a case. The applicant was able to apply for and obtain a student visa, which he did on three occasions. The applicant has a reasonable command of English which he demonstrated at the hearing. He failed to prosecute an appeal in respect of his fourth student visa application refused in 2015, accepting that he was not a genuine student. The Tribunal does not accept that the applicant has adequately explained his lengthy delay in applying for protection from 2008, other than stating it was an attempt of last resort not to have to return to India because he prefers the lifestyle in Australia, and because he had received advice to that effect.
Taking into account the findings set out above and the country information referred to in this decision and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to India now or in the foreseeable future he would face a real chance of persecution for reason of his religion, or imputed political opinion, nationality, ethnicity, or membership of a particular social group.
Conclusion
Refugee
The Tribunal finds that it rejects entirely the applicant’s claims to be a refugee for reason of a well-founded fear of persecution for one of the statutory reasons in 5J(1)(a).
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). For the same reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Member of the same family unit
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Alan McMurran
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 1085

15 February 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness