1832660 (Refugee)

1832660 (Refugee) [2022] AATA 1250 (7 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1832660
COUNTRY OF REFERENCE:                   India
MEMBER:Mark O'Loughlin
DATE:7 March 2022
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 March 2022 at 4:02pm

CATCHWORDS
REFUGEE – protection visa – India – member of small religious/social organisation – threats and attacks from Sikhs or Hindus – protection visa application completed by relative without applicant knowing contents – vague and evasive evidence given at hearing – low-level membership and activity – country information – organisation’s leader now in prison – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5J(1), (4)(b), 5H(1)(a), 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 October 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of India applied for the visa on 31 October 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant had been a member of the Dera Sacha Sauda (DSS) and was not satisfied that the applicant stands a real chance of persecution nor a real risk of significant harm if he is removed to India.

3. The applicant appeared before the Tribunal on 14 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

CRITERIA FOR A PROTECTION VISA

4. The applicant seeks a protection visa in his own right and does not claim to be a member of the same family unit as a person who holds a protection visa.

5. 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.

6. 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.

7. 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 this matter the Tribunal has regard to the visa application and is satisfied that the applicant has Indian nationality.

8. 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

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In reaching its decision the Tribunal has had regard to the following documents provided to it by the applicant;
a.The applicant’s visa application dated 28 October 2016 and attachments; and
b.A copy of the delegate’s decision dated 12 October 2018;
The applicant gave evidence that he does not want to return to India because he is a follower of Dera Sacha Sauda (DSS) and that for that reason he had been attacked in his village in India and he feared that would happen again if he returns and follows DSS. He also said that his attackers had threatened to kill him and he feared that they would remember him and kill him if he returns even if he does not follow DSS. The Tribunal has treated this as a summary of his claims.
In his evidence the applicant said that he did not complete the visa application form himself and that his cousin did that for him. He said that he did sign it and that he can sign his name in English.
He said that he signed because he was told to.
He said that a friend lodged it on his behalf because he did not know how to do it himself.
The applicant was confused as to whether he had signed the application in Adelaide or in [City 1].
The Tribunal observed that the delegate’s decision says that the applicant’s first application, in mid-October 2016, was for a student visa and asked whether that may have been one of the documents he signed.
The applicant said that he did not know about the student visa.
Ultimately he said that he remembers being told to sign a document to do with his visa and he signed it because he was told to.
He said that he wanted a visa so that he could live in Australia. He said he did not want to return to India because he had had a fight there and if he goes back they might kill him.
The Tribunal has not treated the claims set out in the visa application as reliable given the applicant’s evidence that he did not draw or, apparently, understand them.
He gave evidence that he was born on [Date] in [Town], [City 2], where he lived until he came to Australia in 2016.
He said that he is married and that his wife and their 2 children live in India. He keeps in touch with them by telephone.
He said that his parents are still alive and that he has one brother.
There is a family farm where he lived and worked when he was living in India. His brother will inherit the farm when his parents die.
The applicant told the Tribunal that since he has been in Australia he has generally done farm work.
The applicant told the Tribunal that when he was living in India he was a Hindu and that he also followed Gurmeet Ram Rahim.
He was asked what it means to be a follower of Gurmeet Ram Rahim. He said that he just follows him. He said that the Guru, as he called him, teaches respect for elders, the difference between good and evil, and to follow the right path.
He was asked if he still follows the Guru now that he is in Australia. He said that he does not much. He said that it was something he was more involved with when he was in India.
He said that the follwers of the Guru who are called the DSS, the Dera Sacha Sauda, have a headquarters at Sirsa.
The applicant said that he had been to Sirsa to see the Guru once, some time ago. His evidence about when that was was not clear. He first said that it was before he was married, but then he was not sure.
He said that none of his family members are followers of the Guru. Only his wife knew that he followed the Guru.
The applicant said that although following the Guru mainly involved personal belief and did not have outward manifestations, he did participate in small gatherings at nearby farms. Those gatherings would be of 3 or 4 people. The Tribunal understands that they are called “satsangs”.
The applicant said that when they gathered, the neighbours- who were Sikhs and not members of DSS- threatened the gathering saying they would kill those who follow Ram Rahim.
The applicant said that although he participated in satsangs frequently, they were usually held at neighbouring farms about 2 kilometres away and so his family did not know he was attending.
The applicant said that the first attack occurred about a month and a half or two months before he came to Australia.
He agreed that the attack may have been in about June or July 2016 but was not sure.
He said that the attackers were 3 or 4 brothers from the farm next to his family farm. He said that they were Sikhs and that they wore turbans. He also said he knew them by sight because they worked on the next farm. Before the quarrel, he knew them well enough to say “hello” to them.
The applicant gave evidence that he had held satsangs at his family farm 2 or 3 times before the attack happened. He said that the ceremony takes place in loud voices, which is how the brothers on the neighbouring farm knew it was happening.
The applicant told the Tribunal that the brothers came to him after he had held one or two satsangs at his family farm and warned him not to bring people there, saying they would kill him if he held the ceremony again.
The Tribunal asked whether there were others present when the neighbouring Sikh brothers came to threaten him. He said that there were 3 or 4 brothers who were the attackers.
The Tribunal advised the applicant that the protection visa application[1] said that he was attacked by local high caste Hindus and Sikhs. He replied that he is not sure whether they were Hindus or Sikhs and is not sure but there may also have been some cousins but there was a maximum of 5 or 6 people.
[1] Application form, question 91 page 21
He said that they were not Muslims but that they were either Hindu or Sikh and that Hindu and Sikh are the same.
The applicant said that he did not know what caste the attackers were from, only that they were richer than him and have more power and more land.
He said that he fought with them once or twice and that he escaped by running away.
The nature of the attacks was that the aggressors would threaten to kill the applicant
When the Tribunal asked him to make a further effort to estimate the number of attacks on him, he said that it was every 3 or 4 days over a period of about 1 ½ to 3 months from the first attack to his leaving for Australia. In his application form he said that he had been attacked twice.
The applicant’s answers to questions about his attackers were vague and evasive.
The Tribunal asked the applicant why he did not simply stop performing the ceremony on his farm to avoid further attacks. He said that he holds a personal belief and if you believe, you believe.
He was asked whether he had performed the ceremony since he had come to Australia. He said he had not although he had taken Ram Rahim’s name, which meant asking him for help. This is done at home and is not accompanied by a ceremony.
The Tribunal asked whether he could not pursue his devotion to the Guru in that solitary way when he was in India, thus avoiding the attention of his attackers?
He replied that they had threatened to kill him and he ran away. The applicant did not answer the question other than to say that it is hard to finish something that has started and that he told the attackers that he had to take the name of the Guru, and if that means they kill him, so be it.
The applicant told the Tribunal that after that he became scared and would hide from the attackers. He said that once or twice he was so scared that he went and stayed with relatives.
The applicant said that he asked one of his brothers to arrange for him to leave India. He said that his brother did not ask why he wanted to leave, despite the fact that his wife and children would not be going with him.
He said that he just told his brother that he did not want to live in India but did not tell him about the threats.
He said that he did not tell his wife that he was moving away either because she was living with his family and would continue to do so.
The Tribunal asked if he thinks it is unusual for a man to leave his wife and family to move to another country, to which he replied that no one asked him why he was leaving.
He said that he is still in touch with his wife and that he has told her that he will not be coming back to India. He said that he did not give her any reason which is fine because it is his decision.
The applicant explained that when someone wants to go abroad it is a big happiness for the family and that they will tell everyone with pride that better days will come with more happiness and money and that that camouflaged all of his worries.
The applicant was asked if his family expected that he would be able to send them money and he said that he could sometimes. When asked if he had actually sent his family money he said that he sometimes sends a little bit.
The Tribunal asked him if the real reason he wants to live in Australia is so that he can send money to his family. He said that the main reason he wants to stay is due to the threats but agreed that a little bit of the reason could be the money.
The Tribunal asked the applicant what he did after he got to Australia. The applicant said that he stayed in Adelaide for about 3 months, then went to [City 1] and returned to Adelaide about 6 or 7 months before the hearing (which would mean in the middle of 2021). That history suggests that he spent about 4 ½ years in [City 1].
The Tribunal referred to a table in the delegate’s decision and asked whether the applicant applied for a student visa before he applied for the protection visa[2]. He said that he is not sure.
[2] Delegate’s decision page 1 Migration History and Identity Assessment.
The Tribunal asked whether a student visa application was refused. He said he is not sure.
The Tribunal observed that him making an application for a different visa before he applied for the protection visa suggests that he was more interested in coming to Australia to study or work than to seek protection. He said that the protection was the main reason.
The Tribunal asked why he did not apply for the protection visa before he applied for the student visa if that was the case. He said that he did not know which visa he had applied for.
The applicant explained that his brother spoke to an agent in India and then told him that he has a visa and could go to Australia. He said that he did not know how long his visa was valid for, or what type of visa it was, but his brother told him he would need to apply for another visa after a little while.
He said that when he got to Australia he was helped to apply for another visa by a cousin and one of his brother’s friends.
He could not remember quite how that worked but said that after he moved to [City 1], which was while the original visa was still valid, the friend helped him with paperwork and with speaking to the cousin who was in Adelaide.
He said that he explained what had happened to him in India and the threats that had been made against him to the friend and the cousin when he was applying for his next visa.
The Tribunal noted that the delegate had said on page 3 of the decision[3] that during the protection visa interview the applicant had said that he was aware of all of the contents of his protection visa application including the claims and had said that he had written the application himself.
[3] Third full paragraph on that page.
The applicant said that he might have said that because he can’t read. He said he does not remember what he said at the interview. He also said that the interpreter was attending by telephone and the applicant may not have understood what he said and said “yes”.
The applicant’s answers about this were inconsistent and unconvincing.
The Tribunal asked the applicant whether he has been working while he has been in Australia. He said that he had not worked much in [City 1] but since he had come to Adelaide he had had regular work in a [Workplace]. He said that he had been sending money back to his family when he could and thought that he had sent about $400 to $500 every 2 or 3 months approximately.
The Tribunal asked the applicant about his involvement with the DSS since he came to Australia.
In doing so the Tribunal discussed relevant country information[4] and asked whether the applicant knew the Guru had been imprisoned. The applicant said that he does know that.
[4] DFAT Country Information Report India 10 December 2020 p. 34
The Tribunal advised that the report says that the political influence of the DSS has waned since the imprisonment of Ram Rahim[5]. The applicant said that he did not know anything about that.
[5] Ibid. para. 3.78
The applicant knew that Ram Rahim had been sent to prison but said that he did not know that he had been convicted of murder.
The Tribunal asked if the applicant is still a follower of Ram Rahim. The applicant said that he just takes his name but does not know much about what is happening to the Guru in India.
The applicant also said that the murder and rape charges that Ram Rahim was convicted on were based on false allegations. He said that they must be because the applicant does not believe that someone he worships as a guru can do something like that.
The Tribunal suggested that the applicant would not need to publicly follow Ram Rahim if he returned to India. The applicant said that there are still a lot of believers. He said that there used to be millions of believers and that there may still be worshippers although he is not sure. The Tribunal finds that this answer was evasive.
He said he does not know if the people he used to worship with are still involved in DSS or follow the Guru.
He was asked if he had ever been involved in physical fights with the people who were threatening him. He said that there had been 2 or 3 occasions on which he was hit with hands and feet as well as sticks and that he suffered bruising in these attacks.
He said that he did not report the attacks to the police because then everyone would know what had happened. He decided to move away instead.
He said that he was worried that if he brought a case against his attackers it would be harder for him to move away.
He was asked why it said in his application form that he had gone to the police in India[6]. The applicant simply replied that he had not gone to the police in India. He said that he does not believe that the police in India would help him.
[6] Answer to question 92, Page 21 Part C of form 866 Application for a Protection Visa.
The Tribunal observed that in the answer to question 95 of the form it had been written that other members of the Dera have been killed and the police did nothing about it. Given that he now said he did had not filled out the form, although he said he understood its contents at the time it was filed, he was asked if he had heard about other Dera members being killed.

He said that he is aware of fighting but is not sure if there was killing.
Once more the applicant was asked to describe the attacks on him. He said that he was attacked 2 or 3 times.
He said that the first time it was just verbal and the abuse was for bringing other people to the dera.
The second time was after he had called friends for a satsang ceremony. He was working at his farm and 4 or 5 or 6 attackers came and threatened him and then started hitting him on the back and arms with their hands and a stick. He said that lasted between 2 and 4 minutes.
The Tribunal observed that the delegate had found that the applicant had said in his interview with the department that he was “on his way to work”[7]. The Tribunal asked if he was in fact at work at the time of the attack.
[7] Page 6 of delegate’s decision, 3^rd full paragraph on that page.
The applicant said that he might have been going from one chore to the next. He did not remember which chores he was doing and later in his evidence he said that he was not sure whether he as already on the farm at the time of the attack.
The Tribunal asked the applicant why he said in the interview that he was “alone riding his bicycle”[8] when the attack occurred. He had not said that to the Tribunal. He replied that he may have been going from one chore to the next, which he sometimes did by bicycle.
[8] Delegate’s Decision Page 6, 3^rd full paragraph.
When it was put to him that he had claimed that there were up to 10 people involved in the physical attack on him, he said that might be true but that it was mainly the 4 or 5 brothers.
The applicant was asked about the statement that “a number of villagers”[9] witnessed the attack but no one intervened. He agreed that that had happened and said that they did not intervene because the attackers were richer and more powerful.
[9] Delegate’s decision page 6, 3^rd full paragraph.
The Tribunal asked whether the fact that villagers witnessed the attack suggests that it occurred close to the village rather than on the farm (which he had previously said was nearly 2 kilometres away).
The applicant replied that the witnesses were not aware why the fight was happening but saw the other party was more numerous. He asserted that the fight was on the farm.
The Tribunal also asked him about his response to question 91 in the visa application form. In that answer he says that he was attacked twice. He said that perhaps the second attack was not much and says that it was 5 or 6 years ago, suggesting that he does not now recall.
He was asked whether, as part of his devotion to Dera, he would do good works. He said that he only did the satsung and nothing else.
The Tribunal asked if he spread the word about the DSS. He said he was not going to ask other religious people to follow DSS. He was asked if he spread the message and said that he did not other than telling his friends that the teachings were good. He would not ask them to come to satsang.
He was asked about the statement in the application form that he “always spread the message of Dera”. He said that he did not do that in his village but he spread the message by attending satsung in other villages.
He was asked about the suggestion that he had been to DSS headquarters in Sirsa 3 or 4 times [10] to attend gatherings. He said that he was not sure, that it had been 2 or 3 or 4 times that he had been. The Tribunal put to him that he had earlier given evidence that he had only been to Sirsa once.
[10] Delegate’s decision page 3, 4th full paragraph
The applicant said that he had been speaking very generally but now understands that what he says is important.
The Tribunal had been careful to explain to the applicant before he gave his evidence that he should be sure he understood the questions he was asked before he answered them.
The applicant was also told that if he answered a question when he was not sure of his answer, that may hurt his case.
The Tribunal does not accept that the applicant did not understand that his evidence was important.
The Tribunal makes some allowance for possible confusion in the mind of the applicant in answering questions. However, the applicant was inconsistent about important parts of his version of the physical attack such as the number of people involved, where the attack took place and whether there was one physical attack on him or two or more.
The evidence that the applicant gave about the nature of his activities with the DSS, the number of times he attended DSS headquarters, and whether or not he encouraged others to join the DSS was inconsistent and unconvincing.
The applicant does not appear to have maintained a connection with the DSS and is unable to say whether it is still active.
The Tribunal is not satisfied that the applicant was a follower of the DSS before he left India. The Tribunal is not satisfied that the applicant was attacked in India. The Tribunal is not satisfied that the applicant would be at risk of attack if he returns to India.
The Tribunal finds that the applicant does not face a real chance of serious harm (as contemplated by s.5J(4)(b)) by reason of membership of the DSS if he returns to India.
The Tribunal finds that the applicant does not face a real chance of relevant serious harm by reason of persecution of DSS members if he returns to India.
The Tribunal finds that the applicant does not, therefore, face a real chance of persecution on return to India and if he fears persecution, such fear is not well founded.
The Tribunal is not satisfied that the applicant meets the relevant definition of “refugee”.
The Tribunal is not, therefore, satisfied that the applicant is a person in respect of whom Australia has protection obligations. The applicant does not, therefore, satisfy the criterion in section 36(2)(a).

Complementary Protection

The Tribunal must consider whether the applicant meets the complementary protection criterion in s.36(2)(aa). To do so the Tribunal must have substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India (the receiving country) there is a real risk that he will suffer significant harm as defined.
In considering the complementary protection criterion and the “real risk” of significant harm that it contemplates, the Tribunal observes that “real risk” is the same as the “real chance” test that relates to an applicant’s “well founded fear” in the refugee criterion. The Tribunal has found that the applicant does not face a “real chance” of relevant harm. For the same reasons the Tribunal is not satisfied that he faces a “real risk” of significant harm in India as a necessary and foreseeable consequence of being removed from Australia to India.
The Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India there is a real risk he will suffer significant harm.
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 the criterion in s 36(2).

DECISION

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

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

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

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.
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.
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.
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.
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.
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

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.
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.

…

Protection visas – criteria provided for by this Act

…

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 1250

7 March 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction