1727087 (Refugee)

1727087 (Refugee) [2023] AATA 473 (27 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1727087

COUNTRY OF REFERENCE: India
MEMBER:Luke Hardy
DATE:27 January 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 27 January 2023 at 2:35pm
CATCHWORDS
REFUGEE – protection visa – India – religion – Muslim – political opinion – refusal to assist Shiv Sena politician – threats to destroy the applicant’s business – police corruption – fear of physical violence – social media postings – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
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 for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants protection visas (PVs) under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, apparently husband and wife, claim to be citizens of India. They arrived in Australia [in] August 2016 on what were subsequently identified by the Department of Home Affairs on illegitimately obtained passports. I shall refer to them by the aliases under which they travelled as these continue to be the identities logged in the Department of Home Affairs (the Department) and this Tribunal.
The applicants applied for the visas on 19 August 2016. Only the husband made claims of his own, the wife appearing to depend on those claims for the outcome of her own application. [The applicant] was interviewed by the delegate, who refused to grant the visas on 19 October 2017.
[The applicant] appeared alone before the Tribunal on 4 January 2023 to give evidence and present arguments. [The applicant’s wife] declined the invitation to appear.
The Tribunal hearing was facilitated by an interpreter in the Gujarati-English medium. [The applicant] occasionally spoke English.
The applicants’ Department file contains a “non-disclosure” certificate, covering documents discussing the applicants’ identities and how alleged identity fraud was detected. The certificate provides guidance to the Tribunal about how to discuss the documents discreetly with the applicants to avoid disclosing confidential investigative methods to the public. I am confident that I have followed natural justice in disclosing the relevant particulars to [the applicant] and that he is not disadvantaged by my not having referred to any actual investigative methods.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the "refugee" criterion, or on other "complementary protection" grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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 issues
The key issue in this case is whether, on accepted evidence, either or both applicants are entitled to Australia’s protection as refugees or, if not, on complementary protection grounds.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims to the Department
In his original PV application, [the applicant] claimed to be a Muslim for Gujrat. He claimed that a “politician” who had never previously met, and whose identity he never came to know, asked him to do [an occupation 1] job and told him that the job would be a government project. He claimed the alleged client asked him to make an invoice for four times the cost of the project, three quarters of which was to be creamed off, as it were, by the client and his political cronies, who, it turns out, were all members of the right-wing Hindu nationalist Siva Sena party. [The applicant] claims that when he refused, the client reminded him he was Muslim and could be seriously harmed by false cases against him and even destruction of his [occupation 1] business.
[The applicant] claimed he informed an anti-corruption bureau in his state. He claimed the Siva Sena found out and sent goons to his house, threatening his wife and demanding to know his whereabouts. He claimed he was hiding at her father’s house. He claimed a friend then suggested he and [his wife] go to Australia because it was a “very popular country giving protection to those who need it.”
[The applicant] claimed fear of being persecuted because he is a Muslim refused to be involved in corrupt practices and called these out to the authorities. He claims the anti-corruption authorities are also corrupt.
[The applicant] claimed to have heard of [Town 1] before coming to Australia. He to have travelled there within a few days of arriving in Melbourne VIC.
At his PV interview with the delegate, [the applicant] claimed that all the information in his original PV application was true, correct and complete. He said he did not need to change or correct any detail. He said he was assisted in filling out the application by a friend called [name], who he then said was not a friend, but, rather a friend of his friends. He then said he had never even met these “friends.”
At the PV interview, [the applicant] claimed never to have found out the name of the alleged “politician.” The delegate, asking if this was not implausible in the claimed circumstances, flagged this as a credibility issue.
Because [the applicant] provided no time-frame for these events, the delegate asked him when these things happened. [The applicant] said the “politician” first approached him in December 2015, some eight months before he left India.
The delegate put evidence to [the applicant] of an identity confirmation search having disclosed that he and his wife had previously applied for visas to enter [Country 1] under different, evidently Hindu, identities. The passports they used for travel to Australia were evidently legitimately manufactured documents but both were assessed to have been fraudulently altered. The applicants had meanwhile evidently applied for visas for [Country 1] in February and June 2015, both times on other passports, in which their family name was [Name 1], and on both occasions unsuccessfully. The delegate put to [the applicant] that the evidence of these two attempts to travel to [Country 1] indicated that the applicants’ desire to travel out of India long preceded any of the events he had described in his substantive claims, adding doubt to existing concerns as to the significance and factuality of those events.
At the PV interview, [the applicant] denied ever having made these visa applications. He essentially denied being Mr [Name 1]. He was given ample opportunity to set straight any part of the record that needed to be corrected. The delegate ultimately disbelieved [the applicant’s] substantive claims on credibility grounds.
For the purposes of this review, [the applicant] submitted a copy of the delegate’s decision record. He made no other submissions between 3 November 2017, the date of his review application, and 4 January 2023, the date of the Tribunal hearing, a period of five years in all.
At the Tribunal hearing, [the applicant] took an Oath on the Hindu Gita and asked about formally changing his name to [Name 2]. I asked him if he had ever denied telling the delegate he was really [the applicant’s name]. Initially he said he had not and then said he had. He admitted that he had previous applied for visas for [Country 1] under the name of [Name 2]. He said he had lied to the delegate because he was scared at the time that something bad would happen to him. He said that he was afraid that his case would not remain confidential and that people in India would find out he was claiming protection here.
[The applicant] the proceeded to tell me that there never was [an occupation 1] company, or the Siva Sena “politician,” or the demand for a hugely over-quoted invoice, or threats from the “goons” described, and that his problems did not start in December 2015 as previously claimed. He said all of these claims arose from a fear on his part of information leaking back to the people who really intend to harm him.
[The applicant] now claimed that his problems began in the middle of 2014, several months before he and his wife first tried unsuccessfully to flee India for [Country 1] under their own true identities in February 2015.
[The applicant] now claimed, in his oral evidence, that he is a Hindu. He said he used to run a business selling [products 1]. He claimed a stranger offered to sell him a particular [type] of [products 1] at a better wholesale price than he paid to his usual supplier. He claimed that this seemed like good news until his own clients complained about the quality of the produce from these [products 1] and demanded refunds. He told me he tried to contact his new supplier but was unable in any way to do so. He claimed he went to the police to complain about the situation and was told by the police that the vendor had a “big name and that it would be better not to pursue the matter at all.
[The applicant] told me that upon hearing this advice from the police, which he claimed to believe, he complained about the seller on social media. He claimed the seller then contacted him and blamed him for the selling of bad [products 1]. He also claimed the seller and the local police chief came to his shop and vandalised it, threatening to harm him further. He claimed the seller was able to have his shop closed down and dealership cancelled.
I asked [the applicant] if this problem dragged out for all of the two years between mid-2014 and mid-2016 when he came to Australia. He said it went on for a year and a half. He said he “tried” to relocate during that period but apprehended that it would be useless because the vendor was famous. I asked for the vendor’s name and he declined to provide it. I asked again, and he gave me a name, but then described this person as the [Official 1] of the Police Department whose vending in [products 1] was a side-business.
I asked [the applicant] if he could provide any material in support of any aspect of these new claims, even material that might confirm some of the background to the newly-disclosed facts. He said he could not because the police had refused to log his complaint. I asked him if he could show me his own social media complaints and he said these had been removed by the vendor who had been able to remove all of his social media accounts.
I asked [the applicant] if he was fabricating a new set of claims in order to create a history that preceded and might appear to give a relevant reason for his attempts to travel to [Country 1] in 2015. He said he was not. He referred to his oath. I put to hi that nothing appeared to have happened to him during the year since his second [Country 1] visa application. In reply he said his “torture” continued. He did not, however, describe anything that could reasonably be called “torture.” He did say that he had been smacked on the back a few times when he visited the [specified] market. He said he had also been “verbally harassed” there. His claim about being subjected to “torture,” even when considered as a cumulative sequence of actions, struck me as a much-exaggerated one.
I asked [the applicant] why the vendor did not kill him, given that he was described as someone who could do just that with impunity. [The applicant] said he did not know.
I put to [the applicant] that this new set of claims, in seeming to substitute [products 1] for [occupation 1], 2014 for 2015 and a corrupt policeman for a corrupt politician, seemed similar in quality to the false set of claims previously provided to the Department. In reply, [the applicant] said these claims were all true.
I asked [the applicant] if he could provide any documentary evidence of the existence of the person he identified in his new claims as the [Official 1] of Police; he said he could not. I asked if the person might be locatable through an Internet search, and [the applicant] said “I can’t tell whether he’s there. I never searched.” I asked [the applicant] if this might suggest indifference on his own part as to whether his persecutor remains an active threat, or is even still alive. In reply, he said, “I never thought of that.”
I asked [the applicant] if he had any more claims to discuss and he said he wanted to revert to his real name, as previously discussed.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[1] 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.[2]
[1] MIMA v Rajalingam (1999) 93 FCR 220 .
[2] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[3] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[4]
[3] 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
[4] Sun v MIBP [2016] FCAFC 52 at [69].
Key to the success of [the applicant’s] claim to a PV is my being satisfied that he had a good and plausible reason for lying to the Department, as he put it, in his primary application, and for continuing to do so even after the delegate disclosed to him his true identity, being [Name 2]. The reason [the applicant] gave me for his reticence was that he never trusted that the protection visa process was safe and confidential. Meanwhile, he claimed in his original statement of claims that he conducted “thorough research” of the Department’s website and other sites on “goggle [sic.]” before applying for his PV and noted that his claimed fear of persecution in India would need to be “well founded.” At the hearing, however, [the applicant] provided no explanation as to what new information or impulse made him more trusting of the refugee determination process, except to say that he felt he could believe my verbal assurance about Tribunal proceedings being confidential.
I have given full consideration this explanation for the arguably late change of claims. However, I note that [the applicant] took an oath of the Hindu Gita even before I assured him of the confidentiality of the process he had instigated in having applied for protection at the primary and review stages. This is evidence of my assurances arguably having been irrelevant, or at least superfluous in [the applicant’s] eyes, as the triggering motivation for changing his claims. In my opinion, he decided to change his claims prior to the hearing in which I gave that assurance. Looking at what happened before that, I see the primary decision, submitted to the Tribunal by [the applicant], in which the delegate reasoned disbelief in his substantive claims and found him to be [Name 2].

There is no good reason before me for the significant new claims [the applicant] has made and I am not persuaded that he was being truthful or genuine when he told me that my assurance regarding confidentiality cause him, essentially, to change his claims and present a substantially and comprehensively different set of facts.
In this situation it is reasonable not to accept the new claims with an uncritical eye. On this note, I found [the applicant’s] new claims lacking in detail and credibility. I consider it inconceivable that he would have been at any time unable to contact or locate a person providing wholesale stock to his business. I also note that this claim echoes the implausible claim about dealing with a “politician” whose name he never found out. Looking at the evidence cumulatively, I find that I disbelieve the claim about having purchased wholesale stock from a person he could not contact anywhere.
There is also the claim about [the applicant] being advised by the police to desist in his complaints against the vendor as he had a “big name.” It is reasonable to expect that after being told this by the police, a person might take time to marshal his thoughts and plot carefully what action might and might not be best to take, whereas [the applicant] claims he proceeded straight to publicising the matter in social media, seemingly not expecting anything bad to happen. I consider this far-fetched in the claimed circumstances and I give some cumulative weight to my concerns about the claim not being factual.
My impression is also that [the applicant], who has evidently improvised claims in the past, improvised again when he said that the vendor was also a [Official 1] of Police who closed all his social media accounts. I give, cumulatively, some negative weight to this issue.
[The applicant] did not provide satisfactory evidence about how he was able to remain living where he was, even maintaining some kind of pattern of visiting the local [specified] market, without his problems escalating. Also, I find that his claims about being tortured an exaggeration of the alleged treatment he described in detail; I find them ultimately unreliable. Hence I find no reliable and compelling explanation for how long [the applicant] continued to live and operate in his home town in the period between mid-2014, when his newly-claimed troubles started, and mid-2016, when he came to Australia.
I find on the evidence before me that [the applicant] has very likely changed his claims not out of newfound faith in the confidentiality of the PV application process, but in the hope that they clash less with his true identity, his status as a Hindu and his two unsuccessful attempts to travel to [Country 1] in 2015 and for no other significant reason.
For all the reasons given above, I find [the applicant] a comprehensively unreliable witness in this matter.
I note [the applicant] having sought out [Town 1] as a place to live even before he came to Australia and some time before he applied for a visa granting him permission to work. On the evidence overall, which I have found to be comprehensively unreliable, I find that [the applicant’s] true and exclusive motivation for coming to and staying in Australia is the availability of remunerated work here.
I find that [the applicant’s] claims have no nexus with any criterion in s.5J(1)(a) of the Act.
Having considered all of the evidence in its entirety, I am not satisfied that [the applicant] faces a real chance of being persecuted in India in the reasonably foreseeable future for any reason cited in s.5J(1)(a) of the Act. His claimed fear of being persecuted is not well founded. He is not a refugee.
[The applicant’s wife] did not respond to the Tribunal’s invitation to appear before it. She was duly notified that if she did not attend without a good reason, the Tribunal might make a decision in the matter without offering a further opportunity for her to attend a hearing. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
“Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR.
“Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that the applicants are nationals of India, I find that India is the receiving country in this matter.
The applicants’ claims to complementary protection are essentially the same as their refugee claims. Their respective claims have failed for want of credibility on [the applicant’s] part and insufficient information provided by [the applicant’s wife] on hers. Accordingly, neither meets the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, the applicants’ protection claims can no more succeed as complementary protection claims than they have as refugee claims.
On consideration of the evidence in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to India, there is a real risk that either applicant will suffer significant harm as exhaustively defined under s.5(1) of the Act.
Accordingly, I am not satisfied that either applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Conclusions
For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the respective decisions not to grant the applicants protection visas.
Luke Hardy

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 473

27 January 2023

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