1801792 (Refugee)

[2018] AATA 665

1801792 (Refugee) [2018] AATA 665 (8 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1801792

COUNTRY OF REFERENCE:                  India

MEMBER:Alison Murphy

DATE:8 March 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 March 2018 at 1:14pm

CATCHWORDS
Refugee – Protection Visa – India – Religion – Follower of Dera Sacha Sauda – Fear of persecution from authorities – Perceived support for criminal activities - Country information does not support applicant’s claims – Witness credibility – Inconsistent evidence – Fear of persecution not mentioned in previous migration matters

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424A, 499
Migration Regulations 1994, Schedule 2

CASES
Guo v MIEA (1996) 40 ALD 445
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] January 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is [an age] year old male from [City 1] in Punjab, India.  He seeks to invoke Australia's protection obligations so that he does not have to return to India, where he claims to fear harm on the basis of political opinion and religion.

3. The issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether he is 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 of such a person. A summary of the relevant law is set out in Attachment A.

4. In assessing the applicant’s claims, the Tribunal has had regard to policy guidelines prepared by the Department of Immigration (the Department) (PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines) and the two 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.

5. For the following reasons, the Tribunal has concluded that the decision of the delegate should be affirmed.

   History of proceedings

6. The applicant arrived in Australia [in] October 2016 as the holder of a [temporary] visa.  He applied for the protection visa [in] December 2017. The delegate refused to grant the visa on the basis that he wasn’t satisfied the applicant was a person to whom Australia owes protection.

7. The applicant appeared before the Tribunal on 21 February 2018 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

8. Following the Tribunal hearing, the Tribunal wrote to the applicant pursuant to the provisions of s.424A of the Act. That letter invited his comments or response to information the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. The applicant responded to the Tribunal’s letter on 2 March 2018.

9. The applicant was unrepresented in his review application.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Credibility

10. The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[1]  However the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is ‘well-founded’ or that it is for the reason claimed.  Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. 

    [1] Guo v MIEA (1996) 40 ALD 445, per Foster J at 482 (Full Federal Court)

11. Although the concept of onus of proof is not appropriate in administrative enquiries and decision-making, the relevant facts of an 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 accept uncritically any and all of the allegations made by an applicant.[2]  As discussed with the applicant at hearing, the Tribunal has significant concerns about his identity, his account of his immigration history in Australia and his claims for protection.  The Tribunal’s particular findings are discussed below.

    Country of nationality

    [2] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191 and Prasad v MIEA (1985) 6 FCR 155 at 169–70

12. The applicant travelled to Australia on an apparently genuine Indian passport, a copy of which is contained on the Departmental file. The applicant has always represented himself to be an Indian citizen in his dealings with the Department.  The Tribunal finds the applicant is an Indian citizen and has assessed the applicant’s claims against India as his country of nationality.

    The applicant’s personal background

13. The applicant told me he was born in [a particular year] in a village in [City 1], Punjab.  He stated he was educated up to year 8 or 9 and worked [at a workplace] after finishing school.  He gave evidence his parents remain living in the family home while his [siblings] live with their respective in-laws.  I accept these matters to be true.

14. In his protection visa application he states he came to Australia to join his wife who was in Australia on a [temporary] visa, but his dreams were shattered after his arrival when his wife falsely accused him of [performing a particular criminal act on her].  At hearing he gave evidence he separated from his wife shortly after his arrival in Australia and had an upcoming criminal trial scheduled for August 2018.

15. At hearing the applicant submitted a copy of a report from a clinical psychologist dated [in] August 2017 which states he was assessed [in] March 2017 and has since attended [a number of] psychotherapy sessions.  The report discusses the circumstances of the applicant’s separation from his former wife and his anxiety about being in detention and his upcoming court proceedings.  He is assessed as suffering from adjustment disorder and mixed anxiety and depression and I accept that to be true.

    Claims for protection

16. The applicant claims to fear harm if returned to India on the basis of his religious beliefs.  In particular he claims to be a long time devotee of Dera Sacha Sauda (DSS), a spiritual organisation led by the Guru, Gurmeet Ram Rahim Singh.  The applicant claims that since he left India in October 2016, circumstances for DSS followers have changed following the conviction and jailing of Guru Gurmeet Ram Rahim Singh on sexual misconduct charges on 25 August 2017.  He states the government of India conspired against Gurmeet Ram Rahim Singh, falsely accusing him of sexual wrongdoing and spreading riots in Punjab and Haryana. 

17. At hearing I discussed with the applicant information before me from independent sources which indicated DSS was a non-profit social welfare and spiritual organisation headquartered in Haryana.  It reportedly has 44 ashrams across India and claims to have over 40 million followers worldwide.[3]  In 2007, BBC News reported that the DSS counted Sikhs, Hindus, Muslims and Christians among its followers.[4]  The applicant agreed with that information. 

    [3] Dera Sacha Sauda, undated, Dera Sacha Sauda Ashrams Across India < Dera Sacha Sauda, 2010, About Us <

    [4] 18 May 2007 ‘PM urges calm over Sikh protests’, BBC News <>

    Other sources confirm the applicant’s claim that Gurmeet Ram Rahim Singh was convicted of rape and jailed on 25 August 2017, sparking riots across North India with 45 people killed and more than 300 injured.[5] 

    [5] Rao H, ‘After Rahim’s arrest, Dera Sacha Sauda dies a slow death’, Hindustan Times, 11 November 2017

18. At hearing the applicant gave evidence that he attended monthly meetings at the Dera in Sirsa and in between those meetings, he undertook work in the field in his assigned areas.    He stated his activities included [a number of activities].  He gave evidence that while DSS had many hundreds of thousands of supporters, few were given the responsibilities he had for bringing people to the Dera and converting them from other religions to DSS.

19. He claims that since the Guru’s conviction and jailing, the Indian government is trying to reduce and control the DSS membership.  He claims the allegations against the Guru that led to his conviction and jailing were false and DSS members and supporters are now being targeted by the Indian authorities and others.  He claims that as a DSS devotee and follower, he will be targeted for harm if returned to India by the Indian authorities, other extremist groups in Punjab and others who will seek revenge on him because of his role of converting people from other religions to DSS.  He claims that since the Guru’s arrest on 25 August 2017, people from Indian political parties, former supporters of DSS and the Indian authorities have repeatedly come to his family home looking for him and threatening his parents.

    The applicant’s involvement in DSS

20. At hearing I discussed with the applicant a number of concerns I had about his evidence of having been involved with DSS.  Firstly, there are apparent inconsistencies in the applicant’s evidence as to his involvement in and experiences with DSS:

    ·In his protection visa application, he states he has been a member of DSS for a long time, since he was in school (he is now [age]). At hearing he told me he was quite young, perhaps [a young age], when he started attending the Dera with other people from his village. However at his Departmental interview [in] December 2017, he stated he became interested in DSS only four or five years earlier. When this apparent inconsistency was put to him at the hearing, he stated that he meant he started attending the Dera while he was at school but became responsible for the work he was assigned by DSS four or five years earlier. In response to the Tribunal’s letter pursuant to the provisions of s.424A of the Act, he stated he was baptised (given naam daan) about seven years ago, but would go to the meetings to socialise and have food with his classmates.

    ·The applicant stated in his protection visa application that Gurmeet Ram Rahim Singh gave him the authority to conduct Satsangs or congregations. In a written statement accompanying his protection visa application, he states his master loved him and gave him the authority to conduct Satsangs. However at hearing he gave evidence that Satsangs were only conducted by the Guru. When it was pointed out to him that he had stated in his protection visa application that he himself had been granted the authority to conduct Satsangs by the Guru, he stated that he had meant to say that he had the authority to make the arrangements for the Guru to conduct Satsangs. In response to the Tribunal’s letter pursuant to the provisions of s.424A of the Act, he stated that he could provide videos and photos of Satsangs conducted by the master which were attended by thousands of people; however, his work in the weekly or fortnightly meetings or Satsangs was not teaching, but merely spreading his master’s word to the masses.

21. Secondly, I held some concerns about the contents of the documents he submitted in support of his claims. He provided to the Department an undated letter from [Mr A] which states the applicant was a member of the village committee of DSS.  However the applicant did not suggest this in his evidence at hearing; rather, when asked about his role in DSS he stated he attended monthly meetings at the Dera in Sirsa, a city [a distance] away from his village.  He stated that in between these meetings he conducted work out in the [districts] allocated to him. 

22. A further letter submitted at hearing dated [in] June 2011 sets out the various responsibilities the applicant was assigned within that organisation and his allocated districts, including that the applicant will preach about DSS. This is inconsistent with his evidence at hearing that within DSS only the Guru preached. When the apparent inconsistency was pointed out to him at hearing, he stated the preaching referred to in the letter was his role in inviting people from different villages to come to the Dera and hear the Guru preach. Further the date of that letter, more than six years ago, is inconsistent with the applicant’s evidence at hearing that he only assumed his work responsibilities with the DSS four to five years ago. In response to the Tribunal’s letter pursuant to the provisions of s.424A of the Act, he stated he did not mention [Mr A]’s letter in the hearing because he thought the Tribunal already had it and knew all about it, but he would have mentioned it if asked.

23. I note the applicant was not represented in his application and he states the translation of his written claims into English was undertaken by a friend who is not a trained interpreter. His claims to have been a follower of DSS are consistent with the independent sources cited above which indicate the movement is prevalent across the applicant’s home area of Punjab, including within the Sikh community.  The applicant was able to accurately recount the circumstances of the conviction of Gurmeet Ram Rahim Singh, who was convicted of rape and jailed on 25 August 2017, sparking riots across North India with 45 people killed and more than 300 injured.[6] 

    [6] Rao H, ‘After Rahim’s arrest, Dera Sacha Sauda dies a slow death’, Hindustan Times, 11 November 2017

24. In these circumstances I give the applicant the benefit of the doubt and accept his explanations for the apparent inconsistencies in his evidence about his involvement in DSS. I accept he has been attending the Dera since he was at school, that he was baptised approximately seven years ago and that he has been active in the DSS community.  I accept his involvement included attending regular meetings at the Dera and in between those meetings, he undertook work in the field in his assigned areas.  I accept his activities included inviting people from different villages to attend the Guru’s preachings, fundraising and [other activities].  I accept he also [undertook particular activities] and he was involved in bringing people to the Dera and converting them from other religions to DSS.  I accept that if he were to return to India, he would resume his activities with DSS.

    Harm on the basis of DSS involvement

25. For the reasons set out above, I have accepted the applicant’s claimed involvement in DSS prior to travelling to Australia in November 2016.  However for the following reasons I do not accept his claims that he or his family have been targeted or threatened as a result of his work with DSS.

26. There are a number of apparent inconsistencies in his evidence about the threats he and his family have received in India.

    ·The applicant stated in his protection visa application that he would be targeted by the Indian authorities and others in India because it will be perceived that he came to Australia to fund the killings and because the local community think he was involved in illicit activities and funded riots in his area which killed a number of youths. However, at hearing, he repeatedly stated the reason he would be targeted if he returned to India was that people would take revenge for the fact that he had converted so many people to DSS from other religions. When it was put to him at hearing that his evidence appeared inconsistent with his statements in his protection visa application, he stated that he had forgotten to mention at hearing that he would also be targeted because people would believe he had been involved in murders the Guru had been accused of and because they believe he came to Australia to raise funds and send them back to DSS. In response to the Tribunal’s letter pursuant to the provisions of s.424A of the Act, he stated that people had different views about religion and their understanding of the world varies accordingly, and some people believe he funded the killings, while others think he was brainwashing people to convert and become DSS members.

    ·In his protection visa application, he stated his family was targeted many times. At the Departmental interview he stated that the police called his family to come to the police station because they wanted people to stop going to the Dera. When asked if anyone from his family was harmed or mistreated, he stated they talked about making false cases against them. When asked if any false cases were brought against his family, he stated they were not but the police wanted the applicant to come so they could prepare a case against him. However, at hearing, when asked about the threats made to his parents, the applicant gave evidence that people from different religions and the police repeatedly came to his house looking for him and threatened his family. In response to the Tribunal’s letter pursuant to the provisions of s.424A of the Act, he stated that both things were true, that the police were inconsistent and corrupt and influenced by politicians and extremist groups. He stated the police had summonsed family members, especially males, to the station and threatened them. He stated a packet of illicit drugs could be put in the pocket of he or his family members in order to register a case and the police threatened his family to take money from them. He stated he feared the police would involve his family in a criminal case such as supporting terrorist activity.

27. As noted above, the applicant was not represented in his application and the translation of his written claims into English was undertaken by a friend who is not a trained interpreter.  In such circumstances I place little weight on relatively minor inconsistencies in his evidence.  However I have significant other concerns about the applicant’s claims that he and his family have been targeted for harm since the arrest of Gurmeet Ram Rahim Singh in August 2017.

28. Firstly, the applicant’s evidence as to threats he and his parents have been subjected to in India is vague and unpersuasive.  Although he claims his parents have been repeatedly threatened by persons coming to the house looking for the applicant, he has provided little detail as to when those threats started, who made them and how often they occurred.  When first asked when the threats started, he stated he could not remember.  When asked how long after the jailing of Gurmeet Ram Rahim Singh the threats started, he stated it was maybe a [a particular time] afterwards, later stating it was [a different period of time] afterwards.  He was unable to name any of the people he claimed were threatening him, other than to say they included people from different religious groups, police officers and members of the community.  He was unable to say how many times threats had been made to his parents, other than that they occurred many times and have continued for the whole six months since Gurmeet Ram Rahim Singh was jailed. 

29. Secondly, the applicant’s claims that the Indian authorities are targeting or failing to protect DSS supporters is inconsistent with the independent sources before me.  It is reported that as a consequence of its popularity, DSS was a significant electoral force and Guru Gurmeet Ram Rahim Singh was routinely courted by leaders of the major political parties in Punjab, namely the Shiromani Akali Dal – Badal, Indian National Congress and the Bharatiya Janata Party (BJP).[7]  When this was discussed with him att hearing the applicant agreed that had been the case in the past, but stated the situation had changed since Guru Gurmeet Ram Rahim Singh’s conviction and jailing in August 2017.  He claimed that since that time, DSS supporters have been targeted by other religious groups and the Indian police and denied state protection by the Indian authorities, who are trying to reduce its numbers. 

    [7] Garg B, ‘Political leaders court Dera on poll eve’, The Tribune, 29 January 2012 <

1. However as set out in the delegate’s decision (a copy of which was provided to the Tribunal by the applicant), independent sources report the riots which broke out following the conviction occurred because DSS followers went on a rampage after the conviction of  Gurmeet Ram Rahim Singh, burning down gas stations and train stations, torching vehicles and clashing with police.[8]  Contrary to the applicant’s claims, DSS supporters were the instigators and not the victims of that violence.  As discussed with the applicant at hearing, in October 2017 the Haryana state assembly made a point of paying homage to the DSS followers killed in the violence.  It is reported that sympathetic representatives in the assembly came from a wide range of political parties, noting that DSS had been an important vote bank for the parties for at least a decade.[9]  At hearing I put to the applicant that this did not appear to support his claim that the Indian authorities targeted or otherwise failed to protect DSS supporters The applicant has provided no further country information to the Tribunal that would indicate that DSS supporters are being targeted by the Indian authorities or any other group or person since the conviction and jailing of Gurmeet Ram Rahim Singh in August 2017.

   [8] Phartiyal S and Verma N, ‘After deadly protests, Indian states in lockdown for ‘godman’s’ rape sentencing’, Reuters, 27 August 2017

   [9] Rao H, ‘After Rahim’s arrest, Dera Sacha Sauda dies a slow death’, Hindustan Times, 11 November 2017

2. Thirdly, the applicant attended a hearing before the Tribunal (differently constituted) on 25 October 2017 when it was conducting a review of the decision to cancel his [temporary] visa.  At that hearing, he was asked among other things about any compelling need he had to remain in Australia, any hardship he would suffer if his visa was cancelled and whether there was any reason he could not return to India.  He responded that his life was now in Australia, he had friends here and went to the Sikh temple, he had got a liking for Australia and he wanted to live here.  He stated he did not want to return to India because he liked Australia and wanted to live here.  He stated he was seeing a psychologist and his parents were stressed about the visa cancellation.  However he did not suggest at any time in his evidence that he or his family were experiencing difficulties in India because of his involvement in DSS, that he feared harm for any reason if returned to India or that his family were receiving threats in India. This is despite his evidence that people had been coming to his home looking for him and threatening his parents starting about [a period of time] after Gurmeet Ram Rahim Singh’s conviction on 25 August 2017. 

3. When this was discussed with the applicant at hearing, he stated he forgot to mention those things at the hearing. In response to the Tribunal’s letter pursuant to the provisions of s.424A of the Act, he stated he was not aware that mentioning the threat to his life or his family in India would assist in any way and he only found out about the protection visa much later. While I accept the applicant may not have been aware he could apply for a protection visa at the time he attended the hearing for his [temporary] visa cancellation, I do not consider this explains his failure to mention the claimed threats to his life and his family in India when questioned about any compelling need he had to remain in Australia, any hardship he would suffer if his visa was cancelled and whether there was any reason he could not return to India.

4. The combination of these matters causes me not to accept the applicant or his parents have been threatened by any person or group for reasons of the applicant’s involvement with the DSS. I do not accept the applicant has been accused of funding illicit activities or participating in the criminal activities of Gurmeet Ram Rahim Singh or he will be perceived as having done those things.  I do not accept the police or any other person or group has attended his family home making threats against the applicant or his family, or that his family members have been summoned by the police who wish to concoct false cases against them.  I do not accept there to be a real chance that if he returns to India, people will take revenge on him because of his conversion of people to the Dera from other religions.  Nor do I accept there to be a real chance he will be targeted for harm by the police or any other arm of the Indian authorities, other extremist groups or any other group of persons on the basis of his activities with DSS if he returns to India.

5. I have considered what may happen if the applicant was to return to India and resume his former activities for DSS.  However as noted above, none of the information before me indicates that DSS supporters are being targeted by the Indian authorities or any other group or person since the conviction and jailing of Gurmeet Ram Rahim Singh in August 2017.  Rather the sources cited above and discussed with the applicant at hearing suggest that DSS was a significant electoral force regularly courted by the leaders of the major political parties in Punjab[10]. Even after the conviction and jailing of Gurmeet Ram Rahim Singh in August 2017, the Haryana state assembly made a point of paying homage to the DSS followers killed in the violence[11].  On the evidence before me, I do not accept there to be a real chance the applicant will be harmed by the Punjabi police or any other arm of the Indian authorities, other extremist groups or any other group of persons if he returns to India and resumes his activities with DSS.

   [10] Garg B, ‘Political leaders court Dera on poll eve’, The Tribune, 29 January 2012 <

   [11] Rao H, ‘After Rahim’s arrest, Dera Sacha Sauda dies a slow death’, Hindustan Times, 11 November 2017

6. For these reasons I do not accept there to be a real chance that the applicant would suffer serious harm from the Punjabi police, any other arm of the Indian authorities, extremist groups or any other group of persons if he returns to India.  It follows that I do not accept the applicant has a well-founded fear of persecution for any reason claimed if he returns to India, now or in the foreseeable future.

   Complementary protection

7. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it 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 will suffer significant harm. In this case, the Tribunal has found that the applicant is a national of India and the Tribunal therefore finds that India is the ‘receiving country’ for the purposes of s.5(1) of the Act.

8. For the reasons set out above, I have not accepted the applicant or his parents have been threatened by any person or group for reasons of the applicant’s involvement with the DSS. I have not accepted the applicant has been accused of funding illicit activities or participating in the criminal activities of Gurmeet Ram Rahim Singh or that he will be perceived as having done those things.  I have not accepted the police or any other person or group have attended his family home, making threats against the applicant or his family, or that his family members have been summoned by the police who wish to concoct false cases against them.  I have not accepted there to be a real chance that if he returns to India, people will take revenge on him because of his conversion of people to the Dera from other religions.  Nor have I accepted there to be a real chance he will be targeted for harm by the police or any other arm of the Indian authorities, other extremist groups or any other group of persons on the basis of his past activities with DSS, or if he returns to India now or in the foreseeable future and resumes his former activities with DSS.

9. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee definition.[12]  For the same reasons I do not accept there to be a real risk that the applicant would face significant harm on this basis. 

   [12] MIAC v SZQRB [2013] FCAFC 33 per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297] and Flick J at [342]

10. For these reasons I do not accept there to be a real risk that the applicant would face significant harm if returned to India.

    CONCLUSIONS

11. 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).

12. 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).

13. 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

14. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Alison Murphy
    Member

    
    

    ATTACHMENT A -  CRITERIA FOR A PROTECTION VISA

    The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

    A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

    Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

    If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)that is not inconsistent with Article 7 of the Covenant; or

    (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)for the purpose of intimidating or coercing the person or a third person; or

    (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    receiving country,  in relation to a non-citizen, means:

    (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5J Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)   the real chance of persecution relates to all areas of a receiving country.

    Note: For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note: For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)   conceal an innate or immutable characteristic of the person; or

    (c)   without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)   the persecution must involve serious harm to the person; and

    (c)   the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)   a threat to the person’s life or liberty;

    (b)   significant physical harassment of the person;

    (c)   significant physical ill‑treatment of the person;

    (d)   significant economic hardship that threatens the person’s capacity to subsist;

    (e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K  Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)   disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L  Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)   a characteristic is shared by each member of the group; and

    (b)   the person shares, or is perceived as sharing, the characteristic; and

    (c)   any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)   the characteristic is not a fear of persecution.

    5LA  Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)   protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)   the person can access the protection; and

    (b)   the protection is durable; and

    (c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (2A)A non‑citizen will suffer significant harm if:

    (a)   the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)   the death penalty will be carried out on the non‑citizen; or

    (c)   the non‑citizen will be subjected to torture; or

    (d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)   the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …