1719118 (Refugee)

1719118 (Refugee) [2023] AATA 453 (16 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1719118
COUNTRY OF REFERENCE:                   India
MEMBER:David McCulloch
DATE:16 January 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 January 2023 at 8:47am
CATCHWORDS
REFUGEE – protection visa – India – homosexual – provided false claims – economic reasons – generalised fear of harm based on security issues – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 2 August 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 5 July 2016. An interview with the delegate of the Minister was conducted on 10 February 2017. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 11 January 2023 at 9.30am to give evidence and present arguments. The applicant communicated in English.
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. The Tribunal has before it the DFAT Country Information Report – India, 10 December 2020, a copy of which was provided to the applicant at the hearing.
CONSIDERATION OF Claims and evidence
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s migration history is extracted from the delegate’s decision record. The applicant was granted a [temporary] visa on 12 November 2014. He arrived in Australia on [date] November 2014. From 4 January 2015 to 30 January 2015, the applicant became an unlawful non-citizen. The applicant was granted a Bridging visa C in association with a [temporary] visa application valid from 3 February 2015 until 12 March 2015. From 13 March 2015 to 26 August 2016, the applicant was an unlawful non-citizen. The applicant was granted a Bridging visa C in association with his protection visa application from 27 August 2016. The applicant visited [Country 1] on three occasions, once in 2011 and twice in 2012.
The following information is apparent from the application for protection forms. The applicant was born on [date] in Jammu, India. The applicant is a Sikh of Punjabi ethnicity who speaks, reads and writes English, Hindi and Punjabi. His parents and two siblings reside in India and the applicant is in contact with them by telephone. He lived at five addresses in India from birth until November 2014. The applicant attended years one to nine in India. The applicant worked for three employers in a [business] in Australia. On the basis of the application forms, it was unclear whether he was employed at the time of application because he gave conflicting information about his then current employment.
In the application forms, the applicant provided the following responses (not corrected for spelling or grammar):
Q: What do you think will happen to you if you return to that country(s)?
A: The reason I seek protection in Australia is based on my fear that I would be seriously harmed and will be subjected to torture, degrading and inhuman treatment because of my gay sexual orientation. From my young age, I am very shy. It developed due to my sexual preferences. When I was [age] years, I developed intimate sexual relationship with [Mr A] which continued for 4-5 years. After that, I met [Mr B] and had sexual relationship with him. \^en I was in Kolkata, met [Mr C] and had sexual relationship with him. I lived [Mr C] from April 2011 to April 2013 and had intimate relationship. I even travelled with [Mr C] to [Country 1]. After I came to Australia. I met [Mr D] at [a venue]. [Mr D] lives in [Suburb 1] and I used to visit house and we engage in sexual relationship. I also used to go to [a] Hotel to enjoy by life as an openly, gay male. I used to go to [the] Hotel with [Mr D]. I fear my family, relatives and the Indian conservative society will target me for violating the Indian values and engage in homosexual activities. They consider homosexual activities as sin and disease. I fear my family will harm me to protect their honour. I fear my family will force me to many which would seriously affect my mental condition. I fear I can not get protection from the police because authorities under the current BJP government consider homosexuality is against Indian and Hindu values. In addition, after the Supreme Court decision in end 2013, the police used to arrest gay males. I fear even if I move to other parts of India, I will continue top face harm because my family will look for me to target me. Further, homophobia is entrenched in the Indian culture and even if I move to other parts of India, I will face harm.
See my detailed statement to follow.
Q: Did you experience harm in that country(s)?
A: No. I was discreet.
Q: Did you seek help within the country(s) after the harm?
A: No. I was discreet.
Q: Did you move, or try to move, to another part of that country(s) to seek safety?
A: No. I was discreet.
Q: Do you think you will be harmed or mistreated if you return to that country{s)?
A: Yes
Q: Give details (including the type of harm or mistreatment you are likely to experience, the person/people who would be responsible for the harm or mistreatment, why they would harm or mistreat you)
A: The reason I seek protection in Australia is based on my fear that I would be seriously harmed and will be subjected to torture, degrading and inhuman treatment because of my gay sexual orientation. From my young age, I am very shy. It developed due to my sexual preferences. When I was [age] years, I developed intimate sexual relationship with [Mr A] which continued for 4-5 years. After that, I met [Mr B] and had sexual relationship with him. When I was in Kolkata, met [Mr C] and had sexual relationship with him. I lived [Mr C] from 2009-2014 and had intimate relationship. I even travelled with [Mr C] to [Country 1]. After I came to Australia. I met [Mr D] at-[a venue]. [Mr D] lives in [Suburb 1] and I used to visit house and we engage in sexual relationship. I also used to go to [a] Hotel to enjoy by life as an openly gay male. I used to go to [the] Hotel with [Mr D]. I fear my family, relatives and the Indian conservative society will target me for violating the Indian values and engage in homosexual activities. They consider homosexual activities as sin and disease. I fear my family will harm me to protect their honour. I fear my family will force me to marry which would seriously affect my mental condition. See my detailed statement to follow.
Q: Do you think the authorities of that country(s) can and will protect you if you go back?
A: No
Q: I fear my family, relatives and the Indian conservative society will target me for violating the Indian values and engage in homosexual activities. They consider homosexual activities as sin and disease. I fear my family will harm me to protect their honour. I fear my family will force me to marry which would seriously affect my mental condition. I fear I can not get protection from the police because authorities imder the current BJP government consider homosexuality is against Indian and Hindu values. In addition, after the Supreme Court decision in end 2013, the police used to arrest gay males. I fear even if I move to other parts of India, I will continue top face harm because my family will look for me to target me. Further, homophobia is entrenched in the Indian culture and even if I move to other parts of India, I will face harm. See my detailed statement to follow.
Q: Do you think you would be able to relocate within that country(s)?
A: No
Q: Give details about why you are unable to relocate
A: I fear my family, relatives and the Indian conservative society will target me for violating the Indian values and engage in homosexual activities. They consider homosexual activities as sin and disease. I fear my family will harm me to protect their honour. I fear my family will force me to marry which would seriously affect my mental condition. I fear I can not get protection from the police because authorities under the current BJP government consider homosexuality is against Indian and Hindu values. In addition, after the Supreme Court decision in end 2013, the police used to arrest gay males. I fear even if I move to other parts of India, I will continue top face harm because my family will look for me to target me. Further, homophobia is entrenched in the Indian culture and even if I move to other parts of India, I will face harm. See my detailed statement to follow.
Through his migration agent, of Parish Patience Immigration, the applicant indicated in a letter dated 5 July 2016 that he would submit a detailed statutory declaration shortly. There is no indication that the applicant did indeed submit a statutory declaration or any other supporting material to the Department.
An interview was conducted by the delegate with the applicant on 10 February 2017. The applicant was represented by an individual from the migration agent, Parish Patience. The Tribunal notes the following from the interview.
The applicant is asked if there is anything he wants to change in relation to his claims. The applicant indicates that he is not homosexual. The circumstances surrounding the applicant making claims that he is homosexual is explored in detail by the delegate. The applicant indicates that his migration agent ’David’ said if he wants to stay in Australia he needs to apply for a ‘homosexual visa’. The applicant indicates that the written claims for protection in the application form were written by the firm. They are not true. The delegate expresses to the representative of Parish Patience her previous high regard for the firm and her disappointment at the revelations. The representative indicates that the matter is generally being handled by a person in the office who is currently overseas as a result of which she is attending the interview.
The applicant is asked in the interview why he cannot return to India. The applicant says that ‘they’ can get me in India and there is always trouble – bombing and shelling. The applicant indicates that he likes life in Australia. He indicates it is even difficult in India to feed yourself. The applicant is invited to make any further claims of harm but does not do so.
Independent information
The 2020 DFAT report on India provides the following information:
Sexual Orientation and Gender Identity
3.155 Local sources told DFAT lesbian, gay, bisexual, transgender and/or intersex (LGBTI) persons lack protection, have poor education and health outcomes, and face intolerance, abuse and violence in their daily lives. Attitudes towards and experiences of LGBTI individuals can vary, in part due to disparities between urban and rural India, language, caste, class and gender. According to a 2019 International Commission of Jurists (ICJ) report, LGBTI persons face extensive rights violations in relation to:
-housing and within the home, including discrimination in the rental market, denial of housing, segregation into poorly resourced neighbourhoods, violence and harassment (from landlords, neighbours, family and police), and homelessness;
-all stages of the employment process, including unequal access to educational opportunities, discrimination during the recruitment process, discriminatory and gendered work conditions, and lack of job security; and
-access to public spaces, including harassment, physical and verbal violence, denial of access, invasive surveillance and discriminatory pricing.
3.156 In urban areas, there are reportedly venues for the LGBTI community to meet and socialise, although not openly. In 2016, an online dating platform for the LGBTI community, ‘Amour Queer Dating’, was launched. There are also groups focused on support and advocacy for LGBTI women in Bangalore (ASQ), Mumbai (Labia), Kolkata (Sappho for Equality) and Chennai (Sahodaran) and trans-specific groups including Sampoorna, Tweet Foundation and Telangana Hijra Trans Intersex Samiti.
3.157 The constitution (Articles 14 and 21) guarantees the right to equality before the law and equal protection under the law. Article 15 prohibits discrimination on the grounds of sex. In 2014, the Supreme Court of India ruled the rights and freedoms of transgender people were protected under the constitution, including the right to self-perceived gender identity in the absence of gender reassignment surgery. In August 2020, the Government of India formed a National Council for Transgender Persons, to advise on relevant policy and legislation affecting transgender persons.
3.158 The Indian Armed Forces ban LGBT persons from openly serving. In December 2018, a member’s bill was introduced into parliament to amend the Army Act, (1950), Navy Act, (1957) and the Air Force Act, (1950) to allow LGBT persons to serve in the Armed Forces. In 2019, however, the Indian Army Chief General stated homosexuality would continue to be considered an offence in the armed forces. Under the Army Act, any person found guilty of unbecoming or, disgraceful conduct of a ‘cruel, indecent or unnatural kind’ can be imprisoned for up to seven years. Despite not detailing such conduct explicitly, the euphemistic language in the Act is interpreted to include same-sex sexual relations.
3.159 According to Human Rights Watch (HRW), LGBTI youth face harassment and bullying, and often skip school or drop out altogether to avoid humiliation and violence. HRW claims educators lack training to respond to the needs of LGBTI students and, at times, participate in harassment against them. In 2019, UNESCO reported bullying, harassment and violence resulted in the denial of educational training opportunities to LGBTI students. According to ICJ, barriers to LGBTI students’ participation include gender specific uniforms, lack of access to toilets and difficulties in obtaining accurate identity documents. ICJ cited cases of teachers beating and berating ‘effeminate’ male students and forcing transgender students to sit separately from their peers.
Gay men
3.160 Until a September 2018 Supreme Court judgement, section 377 of the Penal Code criminalised homosexuality. In 2018, however, the court decriminalised adult consensual same-sex relationships and declared section 377 unconstitutional. Sources told DFAT attitudes towards gay men have not changed, despite the change in the law. Sources claim police still use many ‘nuisance laws’ to arrest, harass, manipulate and bribe gay men whose families are not aware of their sexual orientation. Sources told DFAT it is possible for middle class, educated gay men to relocate in India. However, this had to be weighed against the concept and custom of family ties, which were hard to break. Local sources claim while there are ‘gay nights’ in a few bars, there are no safe spaces for gay men.[1]
[1] DFAT, Country Information Report – India, 10 December 2020, pp. 46-47.
…
INTERNAL RELOCATION
5.29 India has a long history of internal migration; however, in practice, it remains predominantly intrastate rather than interstate. The complementary rights to reside and move freely throughout India are found in Articles 19(1)(d) and (e) of the constitution. Article 19(1)(d) guarantees all citizens of India the right to move freely throughout the territory of India including from one state to another or from one place to another in the same state. This right can be curtailed under the ‘reasonable restrictions’ in Article 19(5); that is, in the interest of the general public or for the protection of the interest of any ST. Article 19(1)(e) gives every citizen the right to reside and settle in any part of the territory of India, subject to the reasonable restrictions in Article 19(5). The freedom of movement and residence may be curtailed and suspended during an emergency. Equally, any restriction which maintains public peace or safety can been considered in the interests of the general public.
5.30 According to the World Bank, while internal migration in India grows, interstate movement remains low. Drawing on the 2011 census (latest figures), internal migrants numbered 450 million, an increase of 45 per cent over the 309 million recorded in 2001. Internal migrants as a percentage of population increased from 30 per cent in 2001 to 37 per cent in 2011. However, the nature of movement remains relatively unchanged from the 2001 Census. The bulk of movements (62 per cent) were within the same district, with 26 per cent between districts within the same state. Only 12 per cent of movements were across state borders. Interstate migrants represented 4 per cent of India’s population in 2011, a rate almost unchanged since 2001. Women made up the majority of intra-state migrants (63 per cent) with over half attributing marriage as the reason for migration. However, such migration tended to be a change in the usual place of residence across the village and town boundaries. Urban-to-urban migration remained the largest migration flow (46 per cent). Rural-to-urban migration flows remained stable and were roughly half of urban-to-urban flows (22 per cent). India’s census data does not capture seasonal, temporary and circulatory migration (mostly for employment) which is around 13.6 million persons annually and seven times larger than permanent/semi-permanent migration.
Limits to Internal Relocation
5.31 According to the World Bank, factors that may limit interstate relocation include non-portability of entitlements, preferential norms in educational institutions, and domicile requirements for state government jobs. Other factors, some historical, that limit mobility/interstate migration include: the prevalence of the caste system; traditional values; the diversity of language and culture; exploitation and political exclusion; lack of education; limited access to financial services and resources; and predominance of agriculture and semi-feudal land relations in India.
5.32 Inability to access social protection is a further deterrent. In practice, difficulties in procuring registration documents including proof of residency and legal tenancy can restrict internal migrants’ access to public services including health and education and social security programs. These difficulties include complicated regulations and administrative requirements, and act as a disincentive, especially for temporary and seasonal migrants. Such people often face barriers in obtaining subsidised food and housing until they can establish identity and local residence.
5.33 The absence of informal social networks that would normally assist with accommodation, employment and informal social protection may also limit relocation. Where local language and culture is different from region of origin, Indian nationals may also face harassment and political exclusion. Multiple sources told DFAT relocation in India is not straightforward, and many cultural, socio-economic and gender-based obstacles, in addition to language differences, prevail.
Relocation of single women, women with children or victims of family violence
5.34 The Aadhaar Card provides access to government social welfare services, benefits and subsidies (see Unique Identification Numbers (UID) / Aadhaar) and its introduction may assist entitlement portability. However, requirements to provide details of a husband’s or father’s name can exclude single women, single women with children, and domestic violence survivors from government services and accommodation. While income tax provisions do not directly require women to use their husbands’ or fathers’ names, the Aadhaar card and passport both have this requirement.
5.35 Local sources told DFAT safe relocation for women and girls fleeing domestic or family violence within Indian states or elsewhere in India is practically impossible. There is limited availability of shelters/centres and, even where they are available, it is important to consider the situation a woman will face upon leaving such centres, where social support networks are unlikely. According to local sources, some women fleeing domestic violence stay in shelters for more than 10 years. There is little ability of state and NGO resources to reintegrate these women into the community. Sources in West Bengal told DFAT that, due to a shortage of women’s shelters, women from other states seeking accommodation in shelters were repatriated to their home states.
5.36 Local sources advised relocation would generally be possible for a single woman without children, who was able to access accommodation and support networks, or who was educated, skilled or wealthy enough to support herself.
Relocation based on sexual orientation
5.37 Local sources told DFAT middle-class, educated, same-sex oriented males would be able to relocate internally to major cities in India more easily than could same-sex oriented males who are poorer or less well educated. DFAT does not have specific information on the ability of same-sex oriented women to relocate within India, but notes factors such as education level, socioeconomic status, financial independence and location (rural or urban) will impact on an individual’s ability to relocate safely (see Sexual Orientation and Gender Identity).
5.38 DFAT assesses individuals seeking protection from discrimination or violence may be able to access internal relocation options, although these may be more limited for some individuals depending on their personal circumstances. In particular, DFAT assesses women, including single women with children or those fleeing family violence, have limited access to internal relocation options.[2]
[2] DFAT, Country Information Report – India, 10 December 2020, pp. 64-65.
Hearing, credibility, findings, and assessment

The mere fact that a person claims fear of persecution for a particular 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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant, the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by suppliants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of India and accordingly his claims will be assessed against India.
In the hearing, when initially asked why he cannot return to India, the applicant indicated that it was for economic reasons, as he would face difficulties surviving. The Tribunal asked the applicant if these were the only reasons and he indicated that they were.
The applicant indicated in the hearing that in the 10 years prior to coming to Australia he suffered no difficulties. No prior difficulties were referred to.
The Tribunal noted that the applicant had previously indicated that he could not return because of ‘bombing’ and ‘shelling’. The applicant indicated that this was an issue of concern.
The applicant in the hearing had referred to problems due to living close to the border with Pakistan and political tensions and issues generally.
When the Tribunal explored specific bombing and shelling incidents involving him, he referred to an incident in which there was gun fire. However, when this was explored further, it was apparent that this was not an event in which the applicant had been specifically involved, but was one that had occurred in his state.
After further exploration, it was clear that the applicant himself had not suffered any specific harm as a result of violence or political tensions or difficulties. This is reinforced by the fact that no claims on this basis were made in the original application for the protection visa.
The Tribunal in the hearing indicated that it could have general credibility concerns in relation to the applicant as a result of, firstly, his acknowledgement in the hearing that the employment details provided to secure his [temporary] visa to enter Australia were concocted, and secondly, him providing false claims as part of his original protection visa application that he was homosexual. In relation to the latter, the applicant indicated that he had made these claims on the advice of his migration agent.
The Tribunal put to the applicant that economic difficulties would not meet protection criteria as the harm would not be for a refugee criterion reason or be harm that would fall within the definition of significant harm. The applicant indicated that he had no comment.
Given that the applicant has retracted his claim of being homosexual, the Tribunal is not satisfied that the applicant is homosexual, would be identified as homosexual or that there is a real chance of him suffering serious or significant harm on return to India on this basis.
On the evidence, the Tribunal is not satisfied that the applicant has been subject to any specific event of serious or significant harm during his time in India. The Tribunal is not satisfied that the applicant is of adverse interest to authorities or individuals in India that would result in him being subject to a real chance of serious or significant harm on return.
The Tribunal put to the applicant in the hearing that generalised concerns as a result of security issues as a member of the population in India generally would not meet protection criteria. There would not be the required discriminatory conduct for the purpose of the refugee criterion. For the purpose of the complementary protection criterion, the harm would be faced by the population generally and not the applicant specifically and therefore would be excluded under s 36(2B)(c). The applicant had no comment.
Given what the Tribunal put to the applicant in relation to economic harm and generalised fear of harm based on security issues, the Tribunal is not satisfied that the protection criteria are met on these grounds.
Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reason set out in s 5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, he faces a real risk of significant harm.
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).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
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.
…

[2023] AATA 453

16 January 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction