1810682 (Refugee)

1810682 (Refugee) [2022] AATA 795 (1 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1810682
COUNTRY OF REFERENCE:                   India
MEMBER:Jessica Henderson
DATE:1 February 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 February 2022 at 3:25pm
CATCHWORDS
REFUGEE – protection visa – India – fear of harm from uncle because of property dispute – father’s death attributed to uncle – economic hardship and capacity to subsist – credibility – delay in applying for protection – applied only after all other visa options exhausted – good relationship with uncle and no harm or direct threats – uncle now full legal owner of property and living in third country – applicant’s education and experience of living in another country – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5J(1)(a), (5), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), 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 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 Home Affairs on 20 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 28 April 2016. The delegate refused to grant the visa on the basis that it appeared that the applicant had applied “only after all of his visa options were exhausted” which led the delegate to “believe he applied for a Protection visa because he wishes to remain in Australia rather than fear of returning to India”.
The applicant was represented in relation to the review by [Mr A].
A hearing was initially listed on 8 December 2021. On 2 December 2021 [Mr A] requested that the hearing be postponed by 14 days “for an extension of time for written submissions”. The reason was said to be “we had been unable to collate the documents from our client who did not receive our email as it had been caught by his spam filter”. The Tribunal allowed the adjournment on that basis and rescheduled the hearing to 22 December 2021.
The applicant appeared before the Tribunal on 22 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
[Mr A] did not appear at the hearing on 22 December 2021. The applicant indicated that he wished the hearing to proceed without his representative.
At the hearing, the Tribunal enquired of the applicant whether he had sent any submissions or evidence to the Tribunal, noting that none had been received. He replied that he had not.
The Tribunal enquired as to the reason for the adjournment request from 8 December to 22 December, and the applicant said that he had felt unwell ‘mentally’ prior to the hearing, and he had gone to his agent’s office in [Suburb] to see if an adjournment could be arranged. He thought this had happened about 3 days before the hearing but wasn’t sure. The applicant said that he had not sent any documents to [Mr A] and had not discussed filing submissions with him.
The Tribunal has not drawn any adverse inference against the applicant for the inconsistency between his evidence and the letter from his agent requesting time to file submissions. The Tribunal accepts that the applicant was not aware of the content of [Mr A]’s correspondence with the Tribunal and was not a party to any misrepresentation that may have been contained therein.
The applicant spoke of his feeling of being unwell mentally in the past tense. He did not provide any evidence of diagnosed mental illness, and he did not appear to the Tribunal to demonstrate any indicia of mental ill health on 22 December 2021. The Tribunal did not have any doubts about his capacity to give evidence and present arguments at any time during the hearing. The applicant did not seek a further adjournment or indicate any unwillingness to proceed with the hearing on the basis of mental ill-health or otherwise.
At the conclusion of the hearing the applicant was given until 6 January 2022 to revert to his agent and to provide any written submissions to which he would like the Tribunal to have regard. As at 6 January 2022 no further submissions had been received by the Tribunal, and no late submissions or request for extension of time has been received at the date of this decision.
BACKGROUND
The applicant is a [Age] year old citizen of India. He holds a Bachelor of [Subject 1] from [University], from which he graduated in 2006 at the age of [Age].
On 28 April 2016 the applicant applied for a Protection (XA-866) on the basis that his “life is under threat because of my family property dispute with my uncle (father’s brother)”.
CLAIMS AND EVIDENCE
The applicant stated in his application that his reason for leaving India was to study [in] Australia and “make my future better”. He conceded that he had not previously experienced harm in India but said that his parents “do not want me to come back as my life is under threat”. He said that the authorities would not protect him because “my family has limited approach to seek help from any authority, however my uncle is having strong connections with few corrupt politicians and officers. He can use their power to harm me and my family any time.” He said that he could not relocate within India because “my house, my family and our source of income is at the same place”.
The applicant provided the following evidence about the history of the property and his family to the Tribunal during the hearing before the Tribunal on 22 December 2021:
a.The property originally belonged to the applicant’s grandfather. It has three bedrooms and two bathrooms.
b.The property incorporates a [store], which was the family’s primary source of income.
c.About two years before he died, the applicant’s grandfather transferred the property to the applicant’s father and uncle. The applicant recalls a time when the house was occupied by his uncle, his parents, his grandfather, his siblings and himself.
d.At the time of the transfer, the applicant’s father and uncle ran the [store] together. They were very busy and had no time for any friends or meaningful hobbies. Only customers came to the house; no friends ever visited.
e.The applicant’s mother and the applicant’s uncle’s wife are sisters (ie the two brothers married two sisters).
f.About 3-4 years after his grandfather died, his uncle moved to [Country]. That was about 20 years ago, and his uncle has lived in [Country] ever since.
g.The applicant said that prior to visiting his parents in India in 2013 he had understood them to have a good relationship with his uncle. His uncle lent them money for the applicant’s support.
The applicant said that in 2013 he returned to India and moved into the property with his parents because he had nowhere else to go. At the time the property was occupied by his parents, his two brothers and his sister.
Although the applicant repeatedly said during the hearing before the Tribunal that his uncle threatened him during the applicant’s 2013 visit to India, he conceded on questioning that he had not been directly threatened by his uncle. His uncle had, in fact, been in [Country] the entire time that the applicant was in India and had not spoken directly to the applicant by telephone.
During the 2013 visit the applicant had heard his mother’s side of a telephone conversation with a person that he understood was his uncle. He could not hear what his uncle said, but he heard his mother say: “my son won’t interfere” and “if you need this house, come back”. The applicant recalls that his mother was upset and crying during the phone call. After the phone call his mother said to the applicant: “your uncle wants this house. His kids are growing up, he needs it.” The applicant said that his mother had been clear that his uncle had threatened him if he didn’t leave the house saying words to the effect of “tell your son to stay away from this problem”.
The applicant told the Tribunal that his uncle had had his father killed [in] June 2017, and that after that had occurred his mother inherited his father’s share of the property and co-owned it with his uncle. She remained a co-owner until she died in 2020 of a [Medical] problem.
On the applicant’s mother’s death, the applicant said that his uncle became the full legal owner of the property. His uncle continues to live in [Country] and the applicant’s brother now resides in the property. The applicant said that his brother did not pose a threat to his uncle because he (the brother) is “into” drugs and alcohol and doesn’t work. The applicant said that he thought his brother was a drug dealer. As far as the applicant is aware, no-one is currently running the [store].
The applicant said that the reason he feared returning to India was that his return would lead his uncle to assume that the applicant would interfere with the property, and his uncle would harm him to prevent him from interfering. He was unable or unwilling to be specific about the form that the harm would take but he was clear that it was likely to be deadly harm.
The applicant said that he would have no work to do if he returned to India and nowhere to live. He said that there has been too great a gap since he finished his degree and it would be hard for him to get a job. He said that he does not have any family who could assist him; his maternal grandfather is deceased, and his maternal grandmother is [disabled]. His mother’s younger generation family have relocated to Europe and don’t have the resources or inclination to assist him.
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.
A family is capable of constituting a particular social group for the purposes of s 5J(1) of the Act. However, this is subject to s 5K, which provides that, in determining whether a person has a well-founded fear of being persecuted for reasons of membership of a particular social group that consists of the person’s family, the Tribunal must disregard:
(a) 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) any fear of persecution, or any persecution, that the applicant or 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 (a) above had never existed.
Therefore, a person who is pursued because he or she is a relative of a person targeted for a reason other than those specified in s 5J(1)(a) (race, religion, nationality, membership of a particular social group, or political opinion) will not have a well-founded fear of being persecuted within the meaning of s 5J.
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.
‘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.
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.
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, on accepted evidence, the applicant is entitled to protection in Australia as a refugee or on complementary protection grounds. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s uncle and the shared property
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) arising out of an alleged property dispute with his uncle. Even if the Tribunal accepted that there was a real chance of serious harm to the applicant (which for the reasons set out below, the Tribunal does not accept) such harm would not flow from a refugee nexus reason but from a private property dispute between the applicant’s father and uncle.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). For the following reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) on this ground.
The applicant’s claim to have been threatened by his uncle is not sustained on his own evidence. The applicant has never heard his uncle issue a single threat against him. His direct experience of his uncle has been, on the applicant’s evidence, entirely positive. The applicant’s claim that his uncle poses a risk to him is based on conversations that he says he had with his parents, in which his parents allegedly warned him against his uncle.
The Tribunal finds the applicant lacking in credibility, based on what he said to the Tribunal during the hearing. He did not provide complete or forthright accounts of the conversations he says that he had with his mother in India, and it took significant questioning by the Tribunal to establish the specific bases for the applicant’s belief that his uncle posed a threat to him. He was unwilling or unable to be specific about the nature of the harm that his uncle posed, notwithstanding repeated questions from the Tribunal.
The Tribunal does not accept the applicant’s evidence that his mother and/or father told him that his uncle was threatening him with violence. The only detailed conversations that the applicant was able to repeat the gist of to the Tribunal did not contain any threats of violence. The words “tell your son to stay away from this problem” are not, without more, a threat of violence against the applicant. The applicant’s relationship with his uncle was, prior to that date, a friendly and financially supportive one. There is no evidence of any relationship or history between them that would give the words “tell your son to stay away from this problem” any threatening overtones.
There is no evidence that the father’s death can be laid at the uncle’s doorstep. The suggestion that the uncle would go so far as to murder his brother in order to gain complete control of the property is undermined by the uncle’s apparently peaceful co-ownership of the property with the applicant’s mother after the applicant’s father’s death.
Further, there is no evidence before the Tribunal that the uncle currently has any motive to harm the applicant. The uncle is now, on the applicant’s evidence, the full legal owner of the property. He may call on local law enforcement to protect his proprietary rights if the applicant attempts to interfere with them.
The applicant’s uncle is living in [Country] and has been for the last 20 years. On the applicant’s evidence his uncle did not have an opportunity to make and sustain meaningful friendships prior to leaving India. The applicant was unable to articulate a reasonable basis for his belief that his uncle has some unusual degree of political influence or access to corrupt authorities.
The applicant seemed to think that his uncle would easily be able to arrange a hired killer to act for him in India, without being able to articulate how his uncle might accomplish that from [Country].
The applicant’s ephemeral idea that his uncle will hire someone to kill him in order to protect his possession of a house that he already legally owns is not well-founded (for the purpose of s 36(2)(a)) and does not comprise substantial grounds for believing that there is a real risk of significant harm to the applicant (for the purpose of s 36(2)(aa)).

The Tribunal is unable to be satisfied that the applicant has a well-founded fear of persecution, and unable to be satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of a removal to India there is a real risk that the applicant will suffer significant harm at the hands of his uncle, either directly or by way of a hired assassin.
Economic hardship and capacity to subsist
The applicant suggested during the hearing that if he was removed to India he would be unable to support himself financially. The Tribunal asked the applicant why he held this view, noting in particular that the applicant was qualified and spoke very good English.
The applicant told the Tribunal that he will be unable to obtain employment on his return to India. He says that it has been 12 years since he completed his [Subject 1] degree from [University], and that the elapse of time renders him unemployable, particularly as he has no relevant recent work experience in his field of study.
The applicant did not advance any other reason why he would be unable to find employment.
There is no evidence before the Tribunal, other than the mere assertion of the applicant, to support the proposition that the elapse of 12 years since the completion of his degree will make it ‘very difficult’ for the applicant to obtain a relevant job. Nothing in the Country Information suggests that a degree, whether in [Subject 1] or otherwise, becomes worthless to an employer after an elapse of time.
The Tribunal notes Country Information to the effect that those who are more educated may have difficulty finding “suitable employment” in India. In 2019, graduates aged 20-24 years reported an unemployment rate of over 60 per cent, with non-graduates in this age-group reporting 37 per cent unemployment.[1] The Tribunal notes that the applicant does not fall within this age group, but accepts that it may comprise evidence that qualified positions are harder to secure in India.
[1] DFAT Country Information Report India (10 December 2020) p 17 [2.48]
However, even if the Tribunal accepted the applicant’s assertion that his degree will not now secure him employment, s 5J(5) provides that instances of serious harm include significant economic hardship that threatens the person’s capacity to subsist and/or denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist. Denial of the opportunity to obtain better paid employment or professional employment will not cover this instance of harm unless it is the only kind of employment available to the person and threatens the person’s capacity to subsist.
The applicant did not advance any evidence or provide any reason why he would be unable to obtain subsistence level employment anywhere in India. Aside from his concern that he would no longer get a job on the basis of his degree, his submissions were limited to the loss of his family’s [store], and his lack of any other pre-secured source of income.
The Tribunal has had regard to the Country Information Report for India (10 December 2020) with respect to the economic conditions in that country. Although India’s economy has been impacted sharply by the COVID-19 pandemic, resulting in it entering its first ever technical recession in its second quarter of FY2020-21, its recovery continues to gather pace and is widely expected to return to sustained levels of growth.[2]
[2] DFAT Country Information Report India (10 December 2020) p 13 [2.23]
Unemployment rates pre-COVID-19 were high, particularly among the youth. Pre-COVID data suggests employment rates in the agriculture, manufacturing and construction sectors had been declining since 2012 resulting in a significant rise in youth unemployment, including among those who are educated.[3] Unemployment rose significantly in the first half of 2020 as a result of job losses sustained during the COVID-19 pandemic.[4] India’s October 2020 unemployment rate was 6.98 per cent (urban rate 7.15 per cent; rural rate 6.90 per cent), according to data from the Centre for Monitoring Indian Economy.
[3] DFAT Country Information Report India (10 December 2020) p 13 [2.26]
[4] DFAT Country Information Report India (10 December 2020) p17 [2.48]
The applicant is [Age] years old and speaks fluent English. He has the practical benefits of higher education, irrespective of whether his degree assists him on his resume, and the practical benefits of having lived away from his family and support network overseas.
The Tribunal finds that there is no real chance that the applicant will be unable to secure employment sufficient to support himself on his return to India. He does not meet the refugee criterion in s 36(2)(a) on this ground.
The Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal repeats the above reasoning and finds that there are no substantial grounds for believing that the applicant will be unable to find subsistence level employment.
There is no evidence before the Tribunal nor any submission to the effect that significant harm as exhaustively defined in s 36(2A) would flow to the applicant if he is limited to subsistence level employment rather than having access to a professional or higher paid role.
The Tribunal finds that there are not substantial grounds for believing that there is a real risk that the applicant will suffer significant harm if he returns to India. The applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) on this ground.
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 Tribunal finds that the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Jessica Henderson
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 795

1 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction