1810378 (Refugee)

1810378 (Refugee) [2024] AATA 2382 (7 May 2024)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1810378
COUNTRY OF REFERENCE:                   India
MEMBER:Tony Caravella
DATE OF DECISION:  7 May 2024
DATE CORRIGENDUM
SIGNED:24 June 2024
PLACE OF DECISION:  Perth
AMENDMENT:  The following corrections are made to the decision:

Paragraph 10 of the decision should read:

The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a), or the complementary protection criterion in s 36(2)(aa) of the Act.

Tony Caravella
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1810378

COUNTRY OF REFERENCE: India
MEMBER:Tony Caravella
DATE:7 May 2024
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 May 2024 at 1:17pm
CATCHWORDS
REFUGEE – protection visa – India – particular social group – mixed-caste relationship – fear of forced marriage – lengthy stay in Australia – support organisations – return visit to India – internal relocation – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 March 2018 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 26 May 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act.
The applicant appeared before the Tribunal on 11 April 2024 to give evidence and present arguments.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a), or the complementary protection criterion in s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background and receiving country
The applicant claims she was born in [Village 1], Punjab, India in [specified year]. She claims her ethnicity and religion to be Sikh. She declares she is a citizen of India and also declares she has no right to enter or to reside, whether temporarily or permanently, in any country other than her country of citizenship. I accept, based on the evidence before me, that India is the receiving country for the purposes of assessing the applicant’s protection claims.
The applicant first arrived in Australia [in] February 2009 as the holder of a student visa. Her migration history since then shows the applicant holding a number of student visas and bridging visas until 2014 when an application for further stay as a student was refused in January 2015. She appealed the refusal of that further stay visa to the Migration Review Tribunal (MRT) which affirmed the refusal in December 2015. An application for Ministerial Intervention (s 351) failed in May 2015. The applicant lodged her Application for a protection visa on 3 June 2016.
Claims made to the delegate
In her Application for a protection visa (Form 866C) the applicant declares she left her country because she came to Australia on a student visa in 2009.[1]
She claims that previously she had an inter-caste relationship, however, her parents did not agree with the relationship. She claims if she returns to India now her parents will force her to marry. She claims she does not want to marry another man and claims she will be forcibly and emotionally asked to get married.[2]
In reply to the question, ‘Did you experience harm in that country?’ the applicant replied ‘No’.[3]
She declares she has not sought help within her country because she has not returned to India since 2012.[4]
The applicant declares she has not moved and has not tried to move to another part of India because she has no contacts to move to another part of her country. She also claims she does not have sufficient money to get resources.[5]
She claims she thinks she will be harmed or mistreated if she returns to her country and declares her family and community can harm her and can force her to marry against her wish.[6]
She thinks the authorities in India cannot and will not protect her if she returns and claims she has no expectations in relation to the authorities and that they are not so helpful.
The applicant claims she thinks she cannot relocate within India and claims she has no contacts in any other part of her country. She claims she does not have enough money and claims she wants to stay in Australia peacefully.
Claims made and evidence given at Tribunal hearing
At the hearing held on 11 April 2024, the applicant provided the following additional information.
She remains unmarried in Australia and is not in a relationship with anyone.
Her sister married before the applicant travelled to Australia and she now lives in [Country 1].
Her last arrival in Australia was 2012 and she has not returned to India for 12 years. Her passport expired in 2021 and she has not renewed it.
She does not have a right to work in Australia and has not had work rights since her last student visa application was rejected. She last made an application for work rights in Australia when the delegate refused her protection visa application in 2016.
When I asked how she has survived in Australia without work rights, she explained how she has managed to survive by living with various people over the last 7 or 8 years. She described living with a couple and looking after their daughter in return for food and accommodation. She then moved to live with another family, and then moved in with an old lady to provide care for her.
She told me that in January 2023 she required surgery [for medical condition 1]. The people at the Sikh temple assisted her and she borrowed some money. She does voluntary work at the Sikh temple. She is not on medication now; however she owes [Hospital 1] AUD6,000.
When I pointed out she had answered ‘No’ to the question in Form 866C asking whether she has travelled to any country other than Australia in the last 30 years, she said this was incorrect. She told me in 2005 she and 5 others accompanied a family friend who used to travel to [Country 2]. It was one trip only and they travelled to [other countries], and [Country 2].
She has worked in various jobs in Australia before her work rights were refused. She [worked] with different [business 1s] in Perth. She also did [occupation 1] work with [Employer 1], however she ceased this when her work rights ended. She told me she completed a [Qualification 1] and has completed a number of courses while on various student visas in Australia. She told me she has also completed a [two specified courses]. These were the last courses she completed while on a student visa and before her further stay application as a student was rejected.
The applicant told me that in India people around the age of 25 tend to get married, however she said she is ‘an independent soul’ and she will only get married if she finds a soulmate and if she falls in love. She told me how at family events in India people ask her why she does not get married. This caused her stress so she applied for a student visa to leave that environment. She told me she worked hard to complete her studies in India and in Australia.
She said she returned to India only once, namely in November 2012, returning to Australia the next month.
She said she has no future, no property and no job in India. She said she has peace of mind in Australia and she does not want to be dependent on anyone.
The applicant told me in 2010−11, she met someone called [Mr A] online. He moved to Perth and was a member of the [Group 1] Sikh group whereas the applicant is Jat Sikh. Their respective parents rejected their relationship and would oppose a marriage between them. She has not been in any relationship since then.
When I asked why she could not simply ignore her parents and family, she said she has never lived anywhere but in her home area in India. As she has no job, she would have to depend on her family. She told me she has informed her parents that she has applied for a protection visa on the basis that she does not want them to force her into a marriage.
Her brother uses social media and criticises her for not being married at her age.
The applicant confirmed that her family has never physically harmed her, however she claimed she suffered mental torture because of her family’s conduct. She said they use disrespectful words such as calling her an old lady. He mother puts the most pressure on her, however her sister also asks when she will marry.
I referred to the country-of-origin information (“COI”) in the delegate’s decision record, and to the COI generally available in the DFAT reports which reports on organisations that are established and operate in India to protect people against forced marriage. She responded by telling me she understands that the focus of these agencies is on under-aged forced marriage and not on forced marriage for mature women. She acknowledged there are laws in India against forced marriage. When I referred to reports on non-government organizations (“NGOs”) supporting those wanting to avoid forced marriages, such as the ‘Love Commandos’, the applicant told me she was not aware of that organisation. She told me she does not think there are any organisations that could provide her with the support she needs.
She said how she feels freer in Australia and the people to whom she has provided care services have appreciated her efforts.
When I asked if there was any other reason why she fears harm if she returns to India, she told me she holds no fear other than the fear of being forced to marry.
When I asked whether she has travelled to other parts of India, she told me she travelled with friends in Punjab and to Simla, however these were short, 2–4-day trips only and she has never lived outside of Punjab.
Assessment of claims
Credibility
I have considered the applicant’s written and oral claims and find there is consistency in her claims which were given in writing and her claims made in the Tribunal hearing. I was impressed with the detail and directness of the applicant’s responses at hearing. I found no evidence to suggest she has exaggerated her claims, for example she claimed that although her parents have put pressure on her to marry, they have never physically harmed her. After considering all the claims made by the applicant, I conclude that she is an honest and credible witness. I also find she has an impressive migration history based on the evidence before me indicating she completed the various courses in Australia for which she had been granted student visas. Based on the applicant’s detailed account of her experiences since 2016 when she was refused work rights, I accept that she has managed to survive financially in Perth through her voluntary work and through the generosity of the individuals and groups she detailed at the hearing. I also accept the applicant’s expressed concern over her family exerting pressure on her to marry if she returns to India is a concern that she genuinely holds.
However, although I find the applicant a credible witness, and I have considerable sympathy for her circumstances, I find that on the evidence submitted, and in light of the COI before me, the correct conclusion in this case is that the applicant does not face serious or significant harm for the reasons asserted, or for any reason, now or in the reasonably foreseeable future if the applicant returns to India. I set out my findings and my reasons for drawing this conclusion in the paragraphs that follow.
Does the applicant face a real chance of persecution – s 36(2)(a)?
Relationship with [Mr A]
I commence my assessment of the applicant’s claims by considering her assertion where she claims that she was previously in an inter-caste relationship and that her parents rejected the relationship and it therefore ended. At the hearing the applicant provided details that were not included in her written application. Based on that detail, I accept that in

2010−11, she met someone called [Mr A] online and that he had moved to Perth. I accept a relationship formed between the 2, however, as [Mr A] was a member of the [Group 1] Sikh group, while the applicant is Jat Sikh, her and [Mr A’s] respective families opposed the relationship based on their different castes. I accept her claim that their respective parents rejected a marriage between them and that the relationship came to an end. I accept her claim that she has not been in any longstanding relationship since the relationship with [Mr A] ended. However, while I accept the applicant was emotionally hurt and clearly very disappointed with the family rejection of her relationship, she did not suffer ‘serious harm’ as that term is defined in the non-exhaustive definition in s 5J(5) of the Act.
Turning to the reasonably foreseeable future, I considered whether the applicant faces a real chance of serious harm from her family, or from [Mr A’s] family if she returns to India. I accept the applicant last returned to India between [November] 2012 and [December] 2012, which is after her relationship with [Mr A] came to an end. I find that even though her family might have continued to place pressure on her to marry someone of their choosing, they did not inflict serious harm on the applicant, for her relationship with [Mr A], or due to her refusal to marry an acceptable suitor, at that time, or at any other time. Looking to the reasonably foreseeable future, I find no evidence to conclude that the applicant faces a real risk of serious harm of any kind from her family, or from anyone else, for reason of her past relationship with [Mr A].
Forced marriage
I next turn to the applicant’s claim where she asserts that if she returns to India now her parents will force her to marry against her will. I accept the applicant’s evidence given at the hearing where she told me that if she meets someone who she considered an acceptable soulmate and who she loved she would be open to getting married. I also accept she rejects the notion that she should marry by arrangement with someone of her family’s choosing if she does not love or connect with the person. I accept that if the applicant was in fact forced to marry someone who she did not love and with whom she did not connect, and against her will, this might lead to the applicant suffering serious harm of a kind envisaged in s 5J(5) of the Act. However, for the following reasons, I do not accept the applicant faces a real chance of being forced to marry against her wishes.
To begin, I find the applicant’s evidence is that despite the repeated urging by her family and friends, she has never suffered serious harm as a result of her refusal to marry. I accept that the absence of past harm cannot be determinative on the question of the risk of future harm, however, I find it highly persuasive in the circumstances of this case. I find the applicant was able to refuse to marry in accordance with her family’s wishes while she was living in India before first coming to Perth in 2009. I find that since arriving in Australia almost 15 years ago, it is reasonable to conclude the applicant has gained significant further education, experience and confidence while she has lived and studied in Australia. While I accept it is her preference to remain in Australia, this is not the issue. The issue in this case is whether she has a well-founded fear of serious harm in her country. I am not satisfied that the evidence before me, in particular the conduct of the applicant’s family, coupled with the applicant’s greater education and confidence, would give rise to the applicant’s family imposing such pressure to marry on the applicant such that she would be forced to comply and thereby suffer serious harm. Nor do I find the evidence before me suggests that her family’s ongoing encouragement for her to marry someone of their choosing gives rise to a real chance of serious harm.

I accept it would be distressing and stressful for the applicant to continue enduring constant or ongoing pressure from her mother and other members of her family to marry. I also accept it would be irritating and annoying to answer, or to explain to her family and others why she has not married. I accept she may face this sort of questioning if she returns to live with her family. However, I do not accept the evidence before me suggests this will give rise to a real chance of harm of a kind listed in the non-exhaustive list in s 5J(5).
I accept the COI, in particular the DFAT COI reports that the number of women who are single by choice or by circumstances in India is rising. However I also accept the same reports reveal that being and remaining single in India can be difficult and that marriage is a central feature of social life in many parts of the country. I accept the DFAT reports that a woman who is disinterested in marriage would come under significant pressure from her family to marry.[7] I find this COI is consistent with the applicant’s claims. However, while I accept she may continue to experience pressure and some of the difficulties referred to in the COI, I am not persuaded that the applicant’s circumstances, considered in light of this COI, suggest there is a real chance that her family will direct serious harm at the applicant if she continues to refuse to marry.
I have considered the COI[8] before me reporting on state protection for women in India. In particular, I have considered the DFAT report which states, amongst other things, the Protection of Women from Domestic Violence Act 2005 (the PWDVA) has been enacted to provide more effective protection for female victims of any kind of violence occurring within the family, including physical, verbal, emotional, economic and sexual violence. I accept the COI reports that there are some cultural factors that prevent women from reporting violence and there may be limits to the effectiveness of police in providing state protection. However I find the applicant is a well-educated, confident, and articulate person who would be able to raise her concerns, or make a complaint with the police and she would also be able to pursue the matter with higher authorities if she failed to receive the service necessary, or faced such defects as corruption or maladministration within the system of state protection in India.
In considering whether the applicant would be able to access adequate police protection, if she required it in her particular circumstances, I have also considered the DFAT report which reports on the operation of women’s police desks and women’s police stations where women can report violence. The COI reports that there are ‘one stop’ centres throughout the country that are designed to offer a range of services to victims (legal, accommodation or medical services, for example) in addition to police assistance. I have also taken into account the DFAT reports which state that there are some limitations or shortcomings in these services, however, overall, having regard to the totality of the COI reporting in the services available for women who may be at risk of harm, I am satisfied the applicant does have access to, and can avail herself of, adequate police protection if she requires it in India.
In arriving at my decision in this case, I have also considered the COI published by the UK Home Office, in particular on Access to justice and state support,[9] and on Non-state assistance available to women,[10] which I find further supports a conclusion that the applicant will have access to adequate forms of protection and support in the remote event that she is so pressured to marry by her family as to require protection or assistance.
I have considered the evidence before me that the applicant’s passport has expired and she has not renewed it. I find no credible evidence that this will give rise to any risk of serious harm to the applicant if she returns to India as the holder of a temporary travel document.
I accept the applicant has been absent from India for almost 12 years and that there will be need for a period of resettlement if she returns to her country. I find the applicant has demonstrated her resourcefulness and resilience living in Australia in difficult circumstances where she has not been permitted to work in paid employment. Based on the evidence before me, I am satisfied the applicant will be able to resettle into life in her country and that she will not face serious hardship in resettling. Although the applicant may be pessimistic about her future in India, and may view the situation as one where she has no future, no property and no job, objectively, she has a good education and qualifications, she also has work experience, and she does not suffer serious physical or mental disability. In these circumstances, I find it is not unreasonable to conclude that she would be able to find employment of some sort and eventually find her own accommodation and live a reasonable, and safe life in her country, and a life which can be independent of her parents and family if they continue to exert pressure on her to marry.
I have considered the applicant’s claim where she submitted that in January 2023, she required surgery [for medical condition 1]. I accept her claim that she owes [Hospital 1] in Perth the amount of AUD6,000. However I find no evidence before me suggests she cannot enter into an arrangement to repay that debt to the hospital over time from India. Insofar as her ongoing health is concerned, I find there is no evidence before me to suggest she will be unable to access the necessary after-care treatment in India in relation to her surgical procedure and I find no credible evidence to suggest there is a real chance that she will face serious harm for reason of her medical condition, now or in the reasonably foreseeable future if she returns to India.
Based on my findings and on all the evidence before me, I find the applicant does not face a real chance of serious harm amounting to persecution from her family, or from anyone else, if she returns to her home area in [Village 1] Punjab, India. I also find there is not a real chance of the claimed serious harm, or any serious harm, relating to all areas of the receiving country. Further, I also find she can avail herself of adequate state protection and support in the unlikely event that she requires it. In these circumstances it is not necessary to consider or make findings on the viability or reasonableness of internal relocation.
Based on the evidence before me, and in light of my findings in this case. I find the applicant does not have a well-founded fear of persecution if she returns to India now or in the reasonably foreseeable future. I therefore find she does not satisfy the requirements in s 36(2)(a) of the Act.
Does the applicant face a real risk of significant harm – s 36(2)(aa)?
As I have found the applicant does not meet the criterion in s 36(2)(a) of the Act for refugee protection, I must consider whether the applicant meets the criterion pursuant to s 36(2)(aa) for ‘complementary protection’.
Section 36(2A) of the Act provides that ‘significant harm’ occurs if a person suffers:
(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.
I have considered all the evidence and claims before me and have discussed my assessment of whether there is a real chance of the applicant being harmed in any way for the reasons claimed if she is removed to India. As discussed in the preceding paragraphs, I find there is not a real chance of the applicant being harmed in any serious way for any of the reasons advanced in her claims. For the same reasons, I find there is no real risk the applicant will suffer ‘significant harm’ on any basis identified or cognisable if she is removed from Australia to India. In particular, I reject the proposition that the evidence before me indicates the applicant’s parents, brother, other family, or anyone else would harm her in any way specified in s 36(2A) of the Act.
The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’. I have considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, there is a real risk that the applicant will suffer ‘significant harm’ as that term is defined in the Act. Having considered all the claims, circumstances and findings individually and cumulatively, I find that as a necessary and foreseeable risk of the applicant being removed from Australia to India, there is no real risk that the applicant will suffer significant harm at the hands of her parents, her siblings, her community, or anyone else, as claimed and pursuant to s 36(2)(aa) of the Act.
Conclusion
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 s 36(2)(b) or s 36(2)(c) of the Act and therefore does not satisfy any of the criteria in s 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tony Caravella
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.
…

[1] Question 89 of Form 866C.

[2] Question 90 of Form 866C.

[3] Question 91 of Form 866C.

[4] Question 92 of Form 866C.

[5] Question 93 of Form 866C.

[6] Question 94 of Form 866C.

[7] DFAT Country Information Report India, Department of Foreign Affairs and Trade, 29 September 2023, p 34.

[8] See para 3.126 to 3.131, DFAT Ibid.

Country policy and information note: women fearing gender-based violence, India, November 2022 (accessible) - GOV.UK ( UK Home Office, Ibid, Part 7.

[2024] AATA 2382

7 May 2024

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