1832305 (Refugee)

1832305 (Refugee) [2024] AATA 4325 (26 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Miss Ghasemi Saemeh
CASE NUMBER:  1832305
COUNTRY OF REFERENCE:                   India
MEMBER:Mark O'Loughlin
DATE:26 September 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 26 September 2024 at 3:21pm

CATCHWORDS
REFUGEE – Protection Visa – India – religion – conversion to Christianity – abandoned Hinduism in favour of Christianity – applicants had contracted a love marriage without the approval of their families – applicants both abandon the claims – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 56, 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

The applicants in this matter applied for protection visas on 26 April 2018.
On 11 October 2018, under s 65 of the Migration Act 1958 (Cth) (the Act), a delegate of the Minister for Home Affairs decided to refuse to grant either applicant a protection visa. The applicants have applied to the Tribunal for review of that decision.
The delegate refused to grant the visas on the basis that they were not satisfied that the applicants had contracted a love marriage, and neither was therefore a person in respect of whom Australia has protection obligations.
The applicants, having been invited to do so pursuant to the Act, appeared before the Tribunal on 28 May, 18 June and 11 July 2024 to give evidence and present arguments.
The applicants’ representative attended via video link.
The Tribunal was assisted by an interpreter in the Hindi language.
At the beginning of the third hearing the first applicant expressed a concern that the interpreter, who assisted the Tribunal at all 3 of the hearings, had missed a few sentences. The Tribunal asked whether he believes anything important had been missed. He said he did not remember what had been missed so the Tribunal suggested it may not have been important. The first applicant was content with that and the applicants’ representative advised that her assistant, who was also present, understood Hindi and would advise if anything was missed.
There was no suggestion that anything relevant had been missed to that point.
There was no apparent difficulty with interpretation for the remainder of the evidence. No reservations were expressed by the applicants, their representative or by the interpreter. The Tribunal is satisfied there was no relevant shortcoming in the interpretation of the testimony in this matter.
Background
The first applicant came to Australia in July 2009 on a student visa in his birth name, [Name 1].
In December 2009 he applied for a skilled visa as a dependant.
His student visa was cancelled on 23 October 2010, and he remained in Australia until June 2012 as an unlawful non-citizen.
On 6 June 2012 he applied for a protection visa. That application was invalid and the related bridging visa ceased on 21 September 2012.
The first applicant remained in Australia as an unlawful non-citizen for 3 more years. On 2 October 2015 he was granted a bridging visa to enable him to return to India. He left Australia on [date] October 2015, a little over six years after he arrived.
He and the second applicant were married about two weeks after he returned to India.
The first applicant soon decided he would return to Australia.
By early [2016] he obtained a passport in a new name so he could get a visa to Australia.
He and the second applicant returned to Australia on [date] March 2018 on a visitor visa.
The first and second applicants applied for protection visas on 26 April 2018, making the false claim that they faced persecution and harm in India because they had entered into a love marriage against the wishes of their families.
The first applicant was charged and spent about 3 months in prison in relation to his provision of a false identity when obtaining his earlier visas.
In May 2024, about 6 years after their protection visa applications, both applicants abandoned their claims to have faced harm in India because they entered a love marriage.
They now claim they fled India because they faced harm arising from their conversion to Christianity.
Consideration of Claims and Evidence
The issue in this case is whether, based on what is accepted of the claims made or arising on the evidence, either applicant is a person to whom Australia has protection obligations.
Pre Hearing Claims
The first applicant set out his claims in the Protection Visa Application (PVA) signed on 26 April 2018 at his answers to questions 75 to 83.
The second applicant set out her claims in her Protection Visa Application (PVA) signed on 26 April 2018 at her answers to questions 75 to 83.
It is evident that the claims set out in the first applicant’s application in fact relate to the second applicant and vice versa.
The claims might be summarised as being that the applicants had contracted a love marriage without the approval of their families, and as a consequence had been threatened with violence by the second applicant’s family.
In anticipation of the Tribunal hearing the applicants provided submissions in May 2024 and subsequently they signed statutory declarations in support. The first applicant’s declaration was dated 23 May 2024 and the second applicant’s was dated 14 June 2024.
The applicants both abandon the claims that they had angered their families by contracting a love marriage.
The new claims are that tension arose between the second applicant and the first applicant’s family shortly after their wedding in October 2015. The tensions increased after the applicants started to follow Christianity.
The applicants claim they left India to avoid the consequences of their decision to embrace Christianity.
They claim to fear harm because they have abandoned Hinduism in favour of Christianity.
Documentary Evidence
The Tribunal has had regard to documents and submissions the applicants provided in support of their claim including:
·Certificates of baptism for each applicant both dated 19 April 2019.
·Character references, Pastor [A] of [a] Church and church members [names deleted].
·Bundle of photographs demonstrating applicants’ involvement in Christian worship.
·Submissions Gold Migration Lawyers 21 May 2024.
The Tribunal is satisfied the applicants were baptised on 19 April 2019 and have engaged in Christian worship from time to time since then.
Applicants’ Submissions and Country Information
The applicants’ representatives provided submissions of 21 May 2024 with attachments.
The submissions set out some background and clarify the claims for protection the applicants now make.
They refer extensively to the relevant DFAT report[1] and some other country information.
[1] DFAT Country Information Report India, 29 September 2023.
The submissions state on the second page under the heading ‘Background of the Applicant’ that the applicants ‘…seek protection in Australia on the grounds of their religion (Christianity) and the risk of suffering persecution and severe harm if forced to return to India.’
The detail of these claims is not clearly identified but the following can be extracted from the submissions;
Background of India (page 2 and following)
a.That there is discrimination against religious minorities which often leads to significant levels of communal violence. The submissions do not cite support for this assertion.
b.The submissions state that the DFAT Report ‘alerts the real risk of severe harm being suffered by religious minorities in India owing to the creation of ‘a permissive environment for Hindu nationalist groups to intimidate members of minority religions through violence [and ] hate speech’. The Tribunal notes the report does not suggest there is a real risk of severe harm arising as asserted in the submissions, and the quote referred to is not a finding by DFAT but a claim made by ‘some analysts’.
c.The submissions assert that Hindu nationalist groups act to suppress the expression of Christianity including the shutting of churches. On considering page 25 of the report, which is cited as support for that proposition, the Tribunal notes that it says more than 100 churches were closed in 2018 for building code violations and similar. Hindu nationalists were allegedly sometimes associated with those closures. The Tribunal does not accept there is said to be an ongoing issue or that it represents a potential source of relevant harm to the applicants if they are returned to India in the near future.
d.The submissions refer to a Human Rights Watch report[2]. They say it highlights “…the risk stemming from laws in India forbidding forced religious conversion, being ‘misused to target Christians, especially from Dalit and Adivasi communities’’[3]. The report gives one example of six Dalit women being arrested in Uttar Pradesh. The Tribunal accepts that there has been an instance of the misuse of anti-conversion laws against Dalit Christians in Uttar Pradesh. The applicants are not Dalit and do not come from Uttar Pradesh. The Tribunal is not satisfied that the report supports a finding that there is a relevant risk or chance of harm to the applicants arising from misuse of anti-conversion laws.
[2] Human Rights Watch, “World Report 2023:India:Events of 2022   World Report 2023: India | Human Rights Watch (hrw.org)
[3] Submissions Gold Migration Lawyers 21 May 2024, page 4 paragraph 2.
e.The submissions refer to a report by the United States Commission on International Religious Freedom[4]. They say that on page 1 of the report it states that ‘…legislation criminalising religious conversions in certain contexts are contrary to ‘Article 18 of the Universal Declaration of Human Rights’. Although the report does not make such a statement, the Tribunal accepts that is a fair interpretation.
[4] India’s State-Level Anti-Conversion Laws | USCIRF
f.The Tribunal notes that in the article, the term ‘conversion’ is generally used to refer to the act of converting another person to a religion, although sometimes it does appear to use the term in the sense of a person converting to a religion. Having considered the article the Tribunal is not satisfied that it supports a submission that the applicants face relevant harm by reason of having converted to Christianity in 2019 while they were in Australia.
g.On page 7 the submissions refer to a further Human Rights Watch article[5]. The article sets out criticisms that have been made of India’s human rights record. The submissions observe that, included in these criticisms are assertions that India has been urged to ‘improve its protection of freedom of religion and rights of religious minorities.’ The submissions suggest that the issue of protection of religious minorities includes the Christian community. Although that is not explicit in the online version to which the submissions refer, the Tribunal accepts that there may have been some criticism of India’s general human rights record. However, the Tribunal does not accept the report supports a submission that the applicants face relevant harm.
[5] Human Rights Watch 18 November 2022 India: Serious Concerns Raised at UN Rights Review | Human Rights Watch (hrw.org)
h.On page 9 the submissions assert that the applicants, from country information about the persecution of minority groups in India, would suffer serious harm based on:
i.A threat to the person’s life or liberty.
ii.The suffering of significant physical harassment of the person.
iii.The suffering of significant ill-treatment of the individuals.
The Tribunal is not satisfied that the country information to which the applicants have referred establishes those contentions either individually or in combination.
i.At the top of page 10 the submissions assert that the applicants face a risk of persecution in India due to their conversion to Christianity and to their religious beliefs and lack of capacity for state protection.
j.On pages 10 and 11 the submissions refer to some case law and to the Act.
k.Near the bottom of page 11 of the submissions the applicants say they come within Australia’s complementary protection obligations. They say the applicants face a real risk of suffering significant harm as defined for the purposes of the complementary protection criterion. The submissions say the applicants are exposed to such risk due to their Christian religion. By implication the submissions say the applicants also face such risk because of their conversion to Christianity.
l.The submissions conclude by saying the real risk of persecution and harm derives from:
i.India’s poor track record on rights for religious minority classes exacerbated by discriminatory abuse of anti-conversion legislation.
ii.The lack of adequate state based protection for religious minorities in the face of the rise in Hindu nationalistic sentiment since 2014.
In considering the country information the applicants have referred to, the Tribunal has regard to the DFAT report, which at 3.59 finds that ‘…Christians face a low risk of societal violence’ noting that the risk is higher for low caste converts. The applicants are not low caste converts.
Evidence before the Tribunal
First Applicant
The first applicant told the Tribunal that his birth name had been [Name 1] but that he had changed it to [name] which is the name he now uses.
The Tribunal asked why he had changed his name. He said he used to live in Australia but had changed his name due to some circumstances. He later said he changed his name so he could get a visa to Australia.
The Tribunal asked about the applicant’s travel and visa history. He said he had first come to Australia on [date] July 2009 on a student visa.
He said he got into a relationship with a girl and applied to become a dependent applicant on her visa. That application was made in December 2009.
He said he and the girl were in a de facto relationship but were not living together.
He said the girl was studying and they decided that she should continue to study, and he would apply as her dependant.
He said he met the girl about 3 or 4 months after he arrived in Australia. He said he could not remember how long they were together, although he thought perhaps a year.
He said he cannot now remember the name of his former girlfriend. The Tribunal finds that unconvincing, but when the first applicant was pressed he insisted that he could not now remember her name, despite the fact they had been in a relationship for over a year.
He said the dependant visa was not granted and he lost contact with the girl.
He agreed that by the end of 2010 he was no longer studying.
He said he did not know what his visa status was at that point. At some stage in 2011 he spoke to lawyers who advised him to contact immigration, He said he was too stressed about his visa status to do that.
In mid 2012 he lodged an application for a protection visa. He said he was suffering from depression and had been told by a lawyer he could stay if he made this application.
He said that at first he did not know what sort of visa the lawyer applied for and did not understand that he had applied for a protection visa until about 2014.
He insisted he had come to Australia to study. He agreed he had ceased studying in about the middle of 2010.
He agreed he stayed in Australia for about 5 more years after he stopped studying. For much of that time he was in Australia unlawfully.
He agreed that staying in Australia was not helping him to study.
He said he returned to India on [date] October 2015.
He told the Tribunal that he was married [in] October 2015. He agreed that was [number] days after he left Australia.
He said after the marriage his wife and his family started fighting. The fighting seemed to be over small things such as housework, and on other occasions there did not seem to be any reason at all.
He said that tension lasted for a long time.
He said he spoke to a lawyer and was told that if he changed his name he would be able to get a visa to Australia.
He had a passport issued in his new name and he received it [in] 2016.
The first applicant said the conflict with his family had worsened after he and his wife started to follow Christianity.
He said they first went to a Christian church in October 2016, about a year after his marriage and about 8 months after he changed his name so he could come to Australia.
He said his wife’s conflict with his family had escalated to the point that she had made 2 suicide attempts within 2 or 2 ½ months of their marriage.
He said the lawyer arranged a passport for him in a different name and he confirmed that he received the passport [in] 2016.
The Tribunal notes the applicant decided to leave India and got his new passport about 6 months before he started to investigate Christianity.
He said they stayed in India for about 2 more years after he got his passport.
The Tribunal asked why he stayed in India for so long and he said when they started going to church his wife’s condition improved, but then his family became upset about his wife and him investigating Christianity.
The Tribunal asked the first applicant to explain how his wife and he became interested in Christianity.
He said his interest started in October 2016. His wife had become distressed by the fighting with his family and had attempted suicide so he was worried.
He said the first suicide attempt was in December 2015, about 2 months after they were married.
A Christian friend of his suggested that they come to church and so, in October 2016, 10 months later, they did.
He said they found a great deal of peace at church, but his family did not approve. The family found out that the applicants were investigating Christianity in mid-2017.
He said his relatives told him he should not convert because the community would not accept it and they might kill the applicants.
The Tribunal asked whether anyone actually did threaten to kill him. The first applicant said his brother-in-law had. Apparently the first applicant’s sister had been attracted by Christianity and her husband became angry. He blamed the applicants and threatened to kill them.
He said his sister and brother-in -law have since separated.
He said his brother-in-law threatened them after the applicants had moved to Australia. He believed it happened at some time in 2023. He said the threats were made over the phone and that he had recordings of them.
He could not remember the dates of the threats but said he had them on his phone. He said he did not have his phone with him so he could not play the threats for the Tribunal.
The Tribunal asked whether his brother-in-law made a threat to kill him in those recordings. The first applicant said his brother-in-law threatened to spoil the first applicant’s family.
The applicant has not provided any recordings of threats from his brother-in-law despite his claims to possess several. The first applicant’s evidence about the threats from his brother-in-law was unconvincing.
The Tribunal does not accept that the applicant’s brother-in-law threatened the applicants as the first applicant testified.
The applicant gave evidence that his father and brother had also threatened him.
He said his father told him that if he returns, he must live as a Hindu. The first applicant believes that if he and his wife live as Christians in their village they will be harassed, threatened, and maybe even beaten.

He then said he is worried about the community rather than about his father.
After further discussion the applicant agreed that his father was not actually threatening the applicants, he was expressing concerns about problems they may have re-settling if they return to India.
The Tribunal does not accept that the first applicant’s father threatened him because of his conversion to Christianity.
The Tribunal asked the applicant about the threats his brother made. He said he believes his brother will beat or kill him because he is a violent person who said he would take some action.
The first applicant’s evidence about his brother’s threats against him was inconsistent and unconvincing. He first claimed his brother had threatened to kill him but when asked to elaborate his said his brother threatened to ‘take some action’. He then said his brother had not threatened to kill him at all.
The Tribunal does not accept that the first applicant’s brother threatened to harm the applicants.
The Tribunal is not satisfied that the applicants face any risk of harm at the hands of the first applicant’s father or his brother if they return to India.
Late in the first applicant’s evidence, when pressed on whether he had experienced a threat while he was still in India, he claimed that in late 2017 a delegation from the Hindu community had come to his house in a group and threatened to kill the applicants unless they stopped spreading Christianity.
The applicant had not mentioned that to the Tribunal earlier and in particular did not refer to it when he was asked if his life had been threatened when he was in India. He did not mention it in the statutory declaration he prepared to set out his new claims. It was not referred to in the submissions the applicant’s representative prepared.
The applicants remained in India for several months after that threat was allegedly made, but there was no repeat of the threat nor was it acted on.
The Tribunal finds the applicant’s evidence about death threats from a delegation of Hindu community members in India in late 2017 to be novel and unconvincing.
The Tribunal does not accept the first applicant was threatened by anyone in relation to his interest in Christianity before he left India.
The Tribunal has regard to the DFAT report and does not accept that the applicants face relevant harm at the hands of anti Christian members of the community in India.
Second Applicant
In her statutory declaration the second applicant says after she and her husband were married there was conflict between her and her in-laws.
She says because of the fighting she went into depression and she tried to commit suicide many times.

100. She says after she and her husband began attending Christian church, the situation became very bad.
101. She says she and her husband faced lots of pressure from their family and other community members to revert to Hinduism.
102. She says they cannot safely go back to India. She says she has seen many videos on social media of attacks on churches.
103. She says she and her husband fear being beaten and are afraid people will try to kill them if they return.
104. She says her husband’s family have threatened to harm and even kill her numerous times.
105. She says that they cannot relocate to safety in India because of the activities of organisations like Barjrang Del and Shiv Sena. She says they target and attack churches and people who have converted to Christianity. She says relatives of hers have warned them that if they return ‘…we will not leave you.’ She believes that to be a threat.
106. The Tribunal asked the second applicant when she and her husband decided to come to Australia. She said they first talked about it towards the end of 2017, after they had been married for about 2 years.
107. She said she was uncomfortable living in India because of the fights with her relatives. She said these occurred because of their change in religion.
108. She also said a doctor advised them it would be better for her to move to avoid stress and to better accommodate her pregnancy.
109. She said the main reason the doctor believed she suffered from tension was because she took sleeping pills to get to sleep.
110. She said the doctor had not treated her for depression and she had not consulted him about it. She said he was not sure what was happening but told them it was some sort of tension.
111. She said that she and her husband started to follow Christian rituals in about September 2016 and that the threats and torture started at the beginning of 2017.
112. She said there had already been tension with her in-laws about other matters but that worsened after she and her husband became Christian.
113. The Tribunal asked whether they were threatened when they were in India.
114. She said after they became Christian the community threatened them. When pressed she said it was her brother-in-law (the man who married her husband’s sister) who threatened them.
115. She said he told them that he had informed an organisation about them and when they return to India they should expect not to be spared.
116. On being asked she confirmed that that threat came when the applicants were in Australia. The Tribunal reminded her that it had asked about the threats they had received while they were still in India.
117. She said in India, whenever she and her husband went out, if someone met them they would start torturing the applicants.
118. She said after they started believing in Jesus, the fights with her in-laws worsened. She said they would shout and it was threatening.
119. She said that when they came from India not many people knew about Jesus Christ and the atmosphere was very good, but things have deteriorated for Christians since then.
120. She said they are scared that they and their children will be killed by Bajrang Dal. She said they are a Hindu organisation that beats and tortures converts to other religions.
121. She said her brother-in-law expressed anger that the applicants had been trying to convert his wife to Christianity. She said she overheard him making the threats in a telephone call to her husband in 2022. Later he threatened that he would not spare the applicants’ family.
122. She said they blocked his calls and have not heard from him since.
123. She said there have not been other threats since then.
124. The Tribunal asked the applicant about the circumstances of her executing the 866 application form.
125. She said when they came to Australia they wanted a ‘proper visa’ such as a student visa but their agent suggested they apply for a protection visa.
126. She said they told him what had happened and he said they could get a protection visa. They then signed a blank document and he filled it out for them.
127. The Tribunal advised her that it seems unlikely that whoever filled out their PVA for them would falsely claim a love marriage despite being aware that they had been persecuted for their conversion to Christianity.
128. The second applicant could not suggest an explanation for that. Her evidence about this matter was unconvincing.
Findings of Fact
129. The first applicant, having spent nearly six years, mostly unlawfully, in Australia, returned to India in October 2015 to get married.
130. Within at most 4 months of doing so he decided he wanted to return to Australia and arranged a new name and a passport in that name in order to get a visa. He obtained that passport [in] 2016.
131. The second applicant and her in-laws were in conflict from the time the applicants were married in late October 2015.
132. The applicants’ earliest association with Christianity was in September 2016, when the first applicant’s plans to return to Australia were already well established.
133. The applicants were not threatened with harm of any sort by reason of any association with Christianity while they were in India.
134. The applicants have not been threatened with harm of any sort by the first applicant’s father or brother since they came to Australia.
135. The Tribunal does not accept that the first applicant’s brother-in-law threatened the applicants or either of them with harm of any kind if they return to India.
136. The DFAT Country Information Report suggests the applicants do not face other than a low risk of societal violence or discrimination by reason of their Christianity should they return to India[6].
[6] DFAT Country Information Report India 29 September 2023 at par. 3.59
137. The Tribunal does not accept that the second applicant was harmed by her in-laws in the period of more than 2 years that the applicants remained in India after their marriage.
138. The Tribunal does not accept that the second applicant faces harm of any kind at the hands of her in-laws if she returns to India.
Law and its Application
S36(2)(a) - REFUGEE CRITERION
139. 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. This is called the “refugee criterion”.
140. S5H(1)(a) defines “refugee” as a person who has a nationality and is outside the country of their nationality and who, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country.
141. The Tribunal has had regard to both applicant’s identity documents and is satisfied that the applicants are of Indian nationality. Further, the Tribunal is satisfied that the applicants are outside India. Therefore the applicants should be assessed against the definition of ‘refugee’ in S 5H(1)(a).
142. The Tribunal must therefore consider whether each applicant has a well-founded fear of persecution in India, which is the next part of the definition of “refugee” at S 5H(1)(a).
143. S 5J defines “well-founded fear of persecution”. S 5J(1)(a)(b) and (c) establish prerequisites that must all be satisfied to come within the definition. They provide respectively that an applicant will come within the definition if:
a.The applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (“refugee reasons”); and
b.There is a real chance that, if the applicant returned to India, they 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 India.

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.
Do the applicants come within the Refugee criterion?

145. The Tribunal does not accept that the applicants were threatened because of their religion before they came to Australia.
146. The Tribunal does not accept that the applicants face harm of any kind because of their Christianity if they return to India.
147. For the applicants to be ‘refugees’ for the purposes of the Act, the Tribunal must be satisfied that they meet S5J(1)(b) because there is a real chance that, if they returned to India, they would be persecuted for a refugee reason.
148. The applicants do not meet the definition of “refugee” in 5H(1) and do not come within S36(2)(a).
Conclusion re Refugee Criterion
149. The applicants are not persons to whom Australia has protection obligations because they are refugees.
S36(2)(aa) - COMPLEMENTARY PROTECTION CRITERION

Although the applicants have been found not to meet the refugee criterion in s 36(2)(a), they may nevertheless be entitled to the grant of the visa if at least one of them meets s 36(2)(aa) (‘the complementary protection criterion’).

151. To meet S36(2)(aa) of the Act an applicant must be a person to whom Australia has protection obligations because, as sa necessary and foreseeable consequence of being removed to Iran there is a real risk that they will suffer significant harm.
152. The Act provides a definition of “significant harm” at s36(2A) and some exclusions at (2B).
153. In finding that the applicants do not face relevant harm, the Tribunal has considered the definition of ‘significant harm’ in the Act.
154. The Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to India, there is a real risk they will suffer significant harm as defined.
155. The Tribunal is not satisfied there is a real risk the applicants will be arbitrarily deprived of their lives, subjected to the death penalty, subjected to torture, subjected to cruel or degrading treatment or punishment as defined in S 5(1) of the Act, or subjected to degrading treatment or punishment as defined in S 5 (1) of the Act.
Conclusion re Complementary Protection Criterion
156. The applicants are not persons to whom Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to India, there is a real risk that they will suffer significant harm.
Conclusions
157. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicants do 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 applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
The Tribunal has found that the applicants do not satisfy 36(2)(b) or (c) 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.

160. Accordingly, the applicants do not satisfy the criteria in s 36(2).
DECISION
161. The Tribunal affirms the decision not to grant the applicants protection visas.
Mark O'Loughlin

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.
…

[2024] AATA 4325

26 September 2024

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