1832951 (Refugee)

1832951 (Refugee) [2019] AATA 4210 (13 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1832951
COUNTRY OF REFERENCE:                  India
MEMBER:Meena Sripathy
DATE:13 March 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 March 2019 at 1:16pm
CATCHWORDS
REFUGEE – protection visa – India – applicant convicted of money laundering – cooperated with police and surrendered money – fear of harm – no real chance of serious harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 November 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of India, applied for the visa on 25 June 2018. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant faced a real chance of persecution for one or more of the reasons specified in s5J(1)(a) of the Act or that there were substantial reasons for believing that there is a real risk he will suffer significant harm if returned to India and therefore is not a person in respect of whom Australia has protection obligations under s36(2)(a) or s 36(2)(aa) of the Act.
The issues in this review are whether there is a real chance, if the applicant returned to India, that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to India, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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
Evidence before the Department
Information in the application form provides that the applicant is a [age] year old Sikh man born in Amritsar, in the state of Punjab, India. He indicates he is married, in Australia. He reads, writes and speaks Punjabi, Hindi and English. He provides details of parents and one [sibling] in India, a [sibling] in [Country 1] and a [sibling] in [Country 2]. He indicates one residential address form birth until his departure from India in July 2013 in a village in [District], Amritsar, Punjab. He completed a [Qualification] in Jammu & Kashmir and has qualifications as a [Occupation] from Punjab, as well as a [Qualification] in Australia. He worked as a manager in [a business] prior to coming to Australia. He arrived in Australia on a [visitor] visa [in] July 2013.
In a statement setting out his reasons for claiming protection, the applicant states that a few months after arriving in Australia he contacted a man, who he referred to as [Mr A] who was a friend of his in India and asked him to help him with a job in his [business]. [Mr A] told him he would speak to his business partner and get back to him. A couple of months later the applicant participated in a conference phone call with a man named [Mr B] and [Mr A] and was asked if he knew anything about banking. Shortly after this he was asked by [Mr A] to deposit money into the bank on behalf of [Mr B]. The applicant spoke regularly to [Mr B] from this time until he was arrested. He would sometimes become aggressive towards him, especially if he questioned him. They spoke in Punjabi. [Mr B] told him that he was from India but living in [Country 3]. His [Social media 1] profile showed him as a man in his [age] with a turban and long beard. The applicant deposited or arranged for the deposit of significant amounts of money at [Mr B]’s direction. The amount of money involved led him to believe that [Mr B] operates a significant criminal enterprise. [In] January 2015 the applicant was located by police in possession of more than [amount]. This money was forfeited to police. Shortly after the money was forfeited to the police, the applicant’s parents were approached in India by a group of men. The applicant understands from his father that the men asked where the money was and indicated they would kill him if he came back to India without the money. After this, his parents received a number of phone calls in which similar threats were made. [In] June 2018 a group of different men approached family home demanding to know where the applicant was and threatening to kill him if he came back. Shortly after this his father received a call from [Country 3] number and the person said they knew the applicant was out of prison and asked where he was and when he would return to India. The applicant states he fears he will be harmed and killed by [Mr B]’s associates if he returns to India. He fears harm because he lost a significant amount of his money when he was arrested but also because he made admissions to [State 1] police about [Mr B]. The applicant believes [Mr B] is a significant criminal figure who has some power. He fears this because they have been able to locate the applicant’s family and made threats to them. The applicant claims the police in India are corrupt and can be swayed by money and can be bribed by [Mr B]. The police also do not care much about ordinary people. His father’s attempts to complain about this were ignored and not taken seriously. Even if they were willing, there are insufficient resources to protect the applicant from someone like [Mr B]. There is nowhere in India he can be safe because of [Mr B]’s resources. He has no family outside of Amritsar in Punjab. He would also have difficulties with language and religious barriers elsewhere in India.
The applicant’s representative made legal submissions in support of the application, referring to the applicant’s claims under the refugee and complementary protection criteria and relevant applicable authorities. The submissions refer also to country information relating to organised crime in India, and in Punjab in particular, the issue of entrenched political, judicial and police corruption in addressing it, and communal violence and harassment against Sikhs in India. The representative submits the applicant’s fear of harm is on the basis of his membership of the particular social group of persons in India with prior involvement with organised criminal activity, as well as his Sikh religion. It is submitted due to corruption and inadequate resources, the applicant cannot access effective protection from police and the legal system. He is unable to relocate to avoid harm because of the extent and reach of [Mr B]’s organisation both inside and outside of India. He would also face unreasonable difficulty establishing himself elsewhere due to his lack of family or other connections outside Punjab, and religious and language barriers.
On 2 July 2018, through his agent, the applicant provided the Department with a copy of the sentencing remarks by [Judge A] of the District Court made [in] June 2017 relating to his conviction. Also submitted was an Affidavit from the applicant’s father dated 19 January 2018 regarding alleged threats he received directed to the applicant following his arrest in Australia and a support letter from [Relative 1], corroborating this claim.
The applicant was interviewed by an officer of the Department on 9 July 2018 and the Tribunal has listened to an audio recording of the interview. Relevant information provided at the interview is included in the delegate’s decision record.
On 29 August 2018 the applicant’s representative provided a translation of a letter submitted by the applicant’s father to the [Police in India], dated [July] 2018, reiterating the claim that he was visited by unidentified men after his son’s release from jail and threats were made against the son.
Evidence before the Tribunal
On 18 December 2018, the Tribunal received submissions from the applicant’s representative, a copy of a document called Statement of Facts relating to the applicant’s criminal matter, a transcript of his police interview held [in] January 2015, and a Statutory Declaration dated 18 December 2018 by the applicant. The submissions and the applicant’s Statutory Declaration address the delegate’s reasons for decision.
In his Statutory Declaration the applicant provides further information about the delay in lodging a protection visa application. He explains his claims regarding [Mr B]’s motivation to harm him and his capacity to harm him, clarifies his claims about his level of knowledge about [Mr B] (that he did not know much about him), provides comments about the delegate’s reasoning regarding a number of other matters and essentially reiterates his claims.
A further Statutory Declaration by the applicant was provided at the hearing on 20 December 2018 clarifying some matters in the earlier declaration. He also stated that he is currently receiving treatment for depression and he considers his poor mental health will further hinder his ability to relocate within India, though he still maintains there is nowhere in India where he could avoid being harmed. If he relocates, he is concerned that people acting at the direction of [Mr B] will harm him by harming his parents who are vulnerable on account of their age and limited means.
At the hearing the applicant confirmed he is married but remains separated from his wife since the time of his arrest in 2015. His only relatives in Australia are [Relatives], with whom he was living. In India he has his parents and one [sibling], who married and lives in a nearby village in Amritsar. He has another [sibling] in [overseas] and a [sibling] in [Country 1]. The applicant came to Australia in 2013 on a visitor visa with a person with whom he was working. After this he applied for a student visa and then a Partner visa, both applications were refused. The Tribunal put to the applicant that this application history suggests a desire to stay on in Australia. In response he denied this was his original intention.
The Tribunal asked the applicant about the circumstances that led to his arrest in January 2015. He said he had a friend [called] [Mr A] who he met by chance [in] [City 1, Australia]. Through [Mr A], he was introduced to a man called [Mr B] who invited him to help in his [business] by depositing money in banks. He started doing this work for about three months from October 2014. In January 2015, he was driving and was stopped by the police. They asked him where he was going and why. He answered their questions by telling them he was going to pass on some money and told them about the money. When asked why he gave the police the information he gave, he said he answered the questions they asked.
The applicant said after this they interviewed him and he told them what information he knew. He did not know that much about [Mr B] but he knew [Mr A] well. [Mr A]’s family was involved in [business] in India. The applicant said neither [Mr A] nor [Mr B] told him much detail about the nature of the business they were involved in.
The Tribunal asked the applicant if he had interviews with police on only two occasions, [in] January 2015 and December 2016 as recorded in the sentencing remarks. He confirmed that this is correct. It noted that the transcript of the January 2015 interview has been provided, and requested whether he could also provide the December 2016 interview transcript, and Statement of May 2017 which was also referred to in the sentencing remarks.
The applicant confirmed that during the period he was on bail from February 2015 to May 2017 he stayed at the same address with his [Relatives]. When asked if he had any contact from [Mr B] or anyone associated with him in this period, he said he did get one call soon after he went home after being granted bail following the arrest. He said [Mr B] called him on his [Relative 1]’s phone and asked him where the money is. The applicant said he doesn’t want to speak to him because he deceived him. Since then he has had no contact from him or anyone associated with him.
The applicant said his parents first came to know of his criminal activities in Australia after he was arrested, when [Relative 1] informed them. [Relative 1] told them as soon as he was arrested. The applicant told [Relative 1] about what he had been doing when [Relative 1] came to get him after he was granted bail.
The applicant said his parents were contacted by someone in [Country 3] soon after he was arrested demanding to know what he had done with the money. He said first they contacted him through [Relative 1]’s phone and then they contacted his parents. His parents told them they did not know anything about it. He said his parents told him very little about this contact because he was feeling very sick at this time. They only told him more when his father came to Australia to visit him in 2016. At that time he told him that they were giving them a hard time, and that they had sent some people to the house asking about where he was and saying he had given their names to the police and given their money. After he came out of jail, they told him that they were visited again by some people and spoken to abusively and had a glass pane smashed. They demanded the money back and complained that he had given up their names. The applicant said his father told him the calls came from [Country 3]. When asked how he knew it was from [Country 3], he said who else could it be? He was working for [Mr B] and he was the only person who could be behind these calls.
The Tribunal asked the applicant about the nature of the information he had given to the police. He said he gave names, phone numbers, photos and [Social media 1] profiles of [Mr B]. The representative at this point interjected and added that what is relevant here is not so much what he told police but the perception of [Mr B] about what he told. He said they would also have access to the judgement online, referring to the Supreme Court of [State 1] Court of Criminal Appeal [Citation, Date]. What is also relevant here is that he cooperated with police at all times. These people would be motivated to harm the applicant because of his cooperation and that he volunteered a large sum of money.
The Tribunal put to the applicant that he did not mention the phone call with [Mr B] on [Relative 1]’s phone shortly after his arrest in his original statement or at the Department interview. He said he was very upset and stressed at this time, and had taken a lot of depression medication. The Tribunal asked the applicant if he mentioned this contact or the threats made to his family to the police in any of his interviews. He said he did not because he only knew of the threats to his family when his father came to Australia in 2016. The Tribunal asked again whether he mentioned these threats to the police in any of his interviews with them in the context of giving information about [Mr B]. He said he did not because his lawyer advised him only to answer the questions asked and they were only interested in his information about [Mr B]. The Tribunal put to him that this may lead it to have some concerns about the truthfulness of the claim that his father received these threats that he did not mention it in his police interviews.
The applicant said that his father tried to lodge a complaint with the police but they told him that there is no point if his son is not in India and that he should not make more trouble for himself by making a complaint about it. Eventually he made a complaint to a higher level of the police but to date has had no response.
The Tribunal also noted that according to the information in the sentencing remarks about the psychologist report that was submitted there does not appear to be any mention by him about these threats to the psychologist and this could also lead the Tribunal to have doubts about whether the claims are true. He said at that time his main focus was on his criminal case and he talked to the psychologist on the advice of his lawyer for the purposes of his criminal case only. The Tribunal noted that the sentencing remarks also mention the May 2017 statement and there appeared to be nothing about the threats to family there either. He said he was not thinking of these things at that time.

The Tribunal put to the applicant that it also has before it the decision of the AAT (differently constituted) in relation to his Partner visa application. It notes that an issue discussed in that case was what compelling reasons he had for pursuing his application in Australia and he has not mentioned any fear of harm or threats against him at that time, in April 2016. In response the applicant said that this hearing took place before his father’s visit and he did not know about the threats at that time so he did not mention it. He also said the Tribunal member told him this case is only about his Partner visa application and he did not want to discuss the criminal matter with him. He told that Tribunal his passport was confiscated and he has to remain here for the criminal case.
The Tribunal put to the applicant there is an inconsistency in the two statements provided to the Department from his father. The statement dated 19 January 2018 refers to repeated threats by [Mr B]’s men and that they came into and broke things in the house, whereas the statement provided with his protection visa application only referred to a glass window being broken on the second visit after his release from jail. This may add to the Tribunal’s concerns about the credibility of this claim. In response he said his father is not educated. He is a simple man from the village and the second statement was done with the help of his lawyer. He may have assumed if he provided the information before he doesn’t need to provide it again.
The Tribunal asked the applicant why he would be harmed if he returned to India. He said the first reason is because he handed their money to police. Secondly he provided [Mr B]’s name and address and details to police. They have mentioned these two things when they came to threaten his parents, and they have been keeping an eye on him here and sent men to his parents’ home again when he was released from prison. The Tribunal asked if there has been any more contact after the last one when he was released. He said there has been no more contact since then. The Tribunal asked why has there been no threats or contact with him directly here. He said he believes because the police here would take action whereas the police in India would not as [Mr B] has power and money there. The representative stated that there is no information about what the police have done with the information the applicant has provided. They may have passed it on to other authorities. The risk to the applicant to be harmed arises because the money is gone, he has provided this man’s name and details to police and his business/activities have been disrupted in Australia. The evidence that there was a significant money laundering operation going on is clear. Whether the disruption to the operation has ended is a matter of speculation but it is reasonable to accept that there was a degree of disruption and people were arrested.
The Tribunal asked the applicant on what basis does he say that there is any connection between his actions here and criminal syndicates in India. He said [Mr B] is a Sardar, from Punjab. He speaks Punjabi, wears a turban and he is Indian and on that basis he believes his operations are connected to India. His friend [Mr A] told him that [Mr B] is from Ludhiana, Punjab. The Tribunal asked the applicant if he has had any contact with [Mr A] since his arrest. He said [Mr A] has tried to contact him via [Social media 2] but the applicant has not responded.
The Tribunal asked the applicant why the police would not protect him if he was threatened in India. He said his father has tried to lodge a complaint but they refused to take it. It put to him that the reason stated is because he was not in India, but if he was in India they would not have that reason to refuse? The applicant said in India they get so many complaints everyday and do nothing. They are also implicated in organised crime there.
The Tribunal asked if anybody has demanded his family to pay them money to date. He said they demanded it from his father but his father has denied knowledge of any of this. The applicant confirmed that they have not done anything further to his family, other than the abusive language and visit referred to. He said [Mr B] knows his parents are old and have no resources.
The Tribunal asked why would they pursue him now, some 4 years after the events. He said they have contacted his parents, they are aware of his movements, this shows they are still interested in him.
The Tribunal took evidence from [Relative 1]. He confirmed that the applicant is his [relative]. He lived with the witness and his family before he went to jail. The witness said he first came to know about the applicant’s criminal activity when the police stopped him when he was driving on the day of the applicant’s arrest. They searched his car and told him about the applicant’s arrest. Some days later they came to the house and executed a search warrant. The applicant told the witness about what he had been doing after he was released on bail. The witness informed the applicant’s family he had been arrested the day he was arrested and was in daily contact with them for several days until the applicant came home again.
The Tribunal asked the witness if he had been contacted by [Mr B]. He said he has never had contact from him. When asked if he was aware if the applicant had been contacted by him after his arrest, he said he believes he was because the applicant told him he had. He confirmed again that [Mr B] never called him on his phone.
The Tribunal asked the witness what he knew of problems the applicant’s parents had because of the applicant’s arrest. He said they were very worried about him and what would happen to him now. He became aware that they had some problems there also, not immediately but after some time. They told him that they had received some phone calls and men came and threatened the applicant. He believes this happened 2-3 times. The Tribunal asked the witness if he was aware if the applicant’s father told him about this. He said he would have because they were talking all the time.
The witness confirmed that the applicant’s father came to visit him in Australia and that he told the applicant about the issues there then. The witness said he has been to India 3 times in this period. He has had no contact from [Mr B] or any associates at any time.
The Tribunal asked the witness if he had any fears from these people given his connection to the applicant and that the applicant was living with them. He said he has not because they have no enmity with him, they are only interested in the applicant.
The Tribunal put to the applicant the witness’ contradictory evidence that [Mr B] never called on his phone. In response the applicant said that he had no phone when he was released on bail because the police kept his phone, so the only phone he could have taken this call was his [Relative]’s and that his [Relative] may have forgotten this. The applicant also said that if his parents mentioned the threatening calls to his [Relative] his [Relative] never told him, because they could all see the stress on him and would not have wanted to add to that. The applicant repeated that until his parents came to visit he did not know about the threats they had received.
The Tribunal took evidence by phone from the applicant’s father. He confirmed he has lived at the same address for many years and is still there. He came to know about his son’s arrest about 2-3 days after it happened. His [relative] told him. When they heard they were under a lot of stress. Some 3-4 days later they received a phone call from [Country 3] asking where the applicant was. The father told the caller he was in Australia. When asked how he knew the call was from [Country 3] he said he asked where he is calling from and the caller told him. Then again some 3-4 days after the applicant was released from jail he got another call. The father gave this ([Country 3]) number to the police. The father said the men that called him told him that they wanted to know the applicant’s whereabouts because they were looking for the money and also because he was giving names to police. The Tribunal asked the father whether he informed his son and [relative] about these calls. He said he did but not straight away. He told them later on. Later in his evidence he stated that he told the applicant when he came to Australia because he was so stressed and he did not want to add to his stress. Apart from the phone calls, the father told the Tribunal some men came to the house on two occasions. He told them he does not know anything. They told him that when he returns they will come back to get their money and they will harm him if he cannot pay.
The Tribunal asked if they threatened the father and his wife. He said they yelled at them and threatened them also. He tried to go to the police but the police refused to file a complaint because they had no names. The Tribunal noted that despite these visits they have remained living at the same address. They said they have because they cannot afford to move away. The Tribunal noted that the evidence indicates their [child] was married in 2016 and this may indicate they had some resources. In response the father stated that it was a simple wedding to an extended relative so they did not spend much money.
The Tribunal asked the applicant why he could not relocate in India to another place away from his parents where he could not easily be found. He said if he returns to India and not to his parents’ home they will make it worse for his parents and they are old and cannot move themselves. He stated anyone can be found in India so he will not be safe. He said he would have to visit his parents if he went back and he would be at risk for that reason.
The applicant’s representative made the following submissions at the conclusion of the hearing. This is not a typical refugee case where the agent of persecution is in the country of feared persecution. In this case, regardless of where [Mr B] is, he has the ability to direct people in India to harm the applicant and this is the relevant point. The evidence of the applicant and his father has been broadly consistent, despite some minor inconsistencies in the father’s written evidence which can be explained by his low education level and language issues. The representative points out that the claims regarding the approaches to the family in India is not exaggerated or embellished and this supports the credibility of the claims.
The reason for harm feared is multifaceted and needs to be considered together. The motivation to harm the applicant is because of his role cooperating with police, one cannot assume [Mr B] will be concerned with the details, but it is available publicly in the reported judgement (provided). It is also submitted that [Mr B] will want to harm the applicant as a message to others about what happens if they provide information against him. These people have not harmed the applicant’s parents because they are not interested in them. They hope to get something back from the applicant and that is why they are interested in him. The representative submits that the applicant is at risk of harm wherever he goes. He is at risk of harm in Amritsar but elsewhere in India he is at risk of harm as a Sikh who will be isolated and without any resources or social or family support. Relocation is not reasonable in his circumstances.
Regarding the evidence of the witness [Relative 1], the representative submits he provided it to the best of his recollection, but concedes there are errors in his recollection, such as the fact that he believed the search warrant was executed several days after the arrest when the evidence indicates it was executed the same day. So it is conceded his memory is not perfect and this may explain his inconsistent evidence in other matters, but this should not detract from the credibility of the applicant’s main claims.
At the core the evidence about the applicant’s criminal matter indicates he caused significant detriment to [Mr B]’s enterprise and as a result of this there is a real risk he will be harmed. The evidence of the prevalence of organised crime syndicates in India supports this.
Movement records obtained by the Tribunal following the hearing indicate his father visited Australia from [August] 2016 to [October] 2016.
On 3 January 2019 the Tribunal wrote to the applicant and invited his comment on information which if relied on would form the reason or part of the reason for affirming the decision under review. The Tribunal put to the applicant particulars of movement record information relating to his father’s visit to Australia in 2016; evidence given by him at the AAT hearing relating to his Partner via application in April 2016 and evidence given by [Relative 1] at the hearing before the present Tribunal. The invitation explained the relevance and consequences of its reliance on this information and invited his comments or response.
On 5 February 2019 the Tribunal received a response to its invitation and supporting documents. In summary the response makes the following points:
·The applicant and his witness ([Relative 1]) cannot exactly recall whether the applicant told [Relative 1] that [Mr B] had called him on his ([Relative 1]’s) phone when he was released on bail. It is submitted that this was an extremely stressful time and any inconsistency in their evidence on this point should be considered in this context.
·The applicant did not mention the fact that his parents had received threats from [Mr B] at his AAT hearing relating to his Partner via application in April 2016 because he only came to know about this when his father visited Australia, which the Tribunal confirmed occurred in August 2016.
·The applicant does not recall informing the police or the psychologist he saw in the context of his criminal proceedings, about the threats received from [Mr B]. This is consistent with the transcript of his first police interview, his statement to police made in 2017 and the psychologist’s report, all of which are before the Tribunal. However, the representative submits it is important to note that there is no evidence the applicant made any definitive statement to police that he does not fear harm in India, nor is there a complete recording of all communication between the applicant and people associated with his criminal proceedings. It is submitted that the applicant would have been directed by his legal representatives to only answer questions asked of him in the context of the criminal proceedings and this could explain the absence of evidence of him reporting the threats in that context. There is no evidence he was asked about this by the police or the psychologist.
·It is submitted that he raised the issue of the threats from [Mr B] to the Department at the time his bridging visa was cancelled, well before his protection visa application was made. [Relative 1] also provided evidence to support his claim at this time.
·The representative submits that none of the matters raised by the Tribunal in its invitation provide a sufficiently probative basis for doubting the veracity of the applicant’s protection claims, particularly where there is considerable and verifiable circumstantial evidence as to why [Mr B] would be motivated to harm the applicant and his capacity to inflict harm.
·The underlying facts of the case, as found by [Judge A] are that the applicant was involved in a significant criminal enterprise, depositing large sums of money at the direction of a person in [Country 3] named [Mr B]; that he cooperated with police including by handing over a large amount of cash to police. This information is in the public domain, by way of the reported judgement of the [State 1] Court of Appeal. The representative submits that the findings of the District Court Judge regarding the size and nature of the criminal enterprise and cooperation of the applicant, together with evidence of the prevalence of organised crime in Punjab (and India generally) amount to compelling evidence to support a finding that the applicant’s fear of persecution is well founded.
The following documents were submitted in support of the submissions:
·Statutory Declaration by the applicant dated 31 January 2019;
·Statutory Declaration by [Relative 1] dated 11 January 2019;
·Applicant’s Statement 1 May 2017 relating to the criminal proceedings;
·Letter from applicant’s legal representative, [Company], to Mr [C], Psychologist date 26 November 2016;
·Psychologist Report relating to the applicant by [Mr C] dated 18 December 2016;
·Applicant’s request for Revocation of Mandatory Visa Cancellation under s501(3A) dated 26 July 2017.
FINDINGS AND REASONS
Nationality
On the basis of the evidence of the applicant’s passport the Tribunal finds that he is a citizen of India and India is his country of nationality and the receiving country for the purposes of this assessment of protection obligations.
Assessment of claims
The Tribunal’s first task in determining whether the applicant is owed protection is to make findings of facts on relevant matters. The task of fact-finding often involves an assessment of an applicant’s credibility. In this context, the courts have made it clear that the Tribunal must be sensitive to the potential difficulties faced by asylum seekers in putting forward their claims, and that the Tribunal should adopt a reasonable approach to making its findings with regard to credibility and afford the benefit of the doubt to asylum seekers who are generally credible but unable to substantiate all of their claims. However, the Tribunal is not required to accept uncritically any and all claims made by an applicant. In assessing his credibility, the Tribunal has had regard to its ‘Guidance on the Assessment of Credibility’ and submissions made by his representative.
In summary, the applicant’s claims are that he was involved in collecting and depositing large sums of money into bank accounts in Australia on the instructions of an Indian national in [Country 3] named [Mr B]. The applicant was apprehended by police and subsequently convicted in the District Court in relation to numerous money laundering offences and he served a custodial sentence of 12 months in relation to these convictions. He cooperated with the police by providing information about the operation he was involved in and surrendered a substantial sum of cash he had in his possession at the time of his arrest. As a result of this matter and his actions, the applicant fears harm from [Mr B] and/or his associates if he returns to India. He claims his parents have been contacted by phone from [Country 3] and approached by persons in India who have made threats against him relating to the money he forfeited, and cooperation he gave, to the [State 1] police. He claims his parents were contacted again following his release from prison in Australia asking about his whereabouts and when he intends to return to India. The applicant fears he will be harmed or killed by persons acting at the behest of [Mr B] as a consequence of his conviction, forfeit of money to the police and cooperation with the police investigation of the matter. He claims the police in India are unwilling to assist or protect him. The applicant also claims he would be subjected to persecution in India on the basis of his Sikh religion and identity, in light of the resurgence of the radical Sikh separatist group known as the Khalistan movement.
Claims relating to applicant’s past criminal proceedings and conviction
On the basis of the applicant’s evidence, and facts and evidence set out in documents generated in the context of the criminal proceedings that are before the Tribunal, including the agreed Statement of Facts, Sentencing remarks of [Judge A] and decision of the [State 1] Court of Criminal Appeal [Citation][1] the Tribunal accepts that the applicant was charged and convicted in relation to numerous offences relating to money laundering activities engaged in between October 2014 and January 2015. It accepts he was sentenced in relation to those offences in June 2017, and served a period of 12 months custodial sentence.
[1] [Source deleted].

The Tribunal accepts the findings of [Judge A] relating to the nature and circumstances of the offending, as they are relevant to its assessment of this application. Specifically it accepts that the applicant, in the commission of his offences, dealt with a significant sum of money (totalling [amount]). In the Statement of Facts prepared for the criminal proceedings, the applicant agreed that it was reasonable to suspect the money was the proceeds of crime. It accepts that at the time of his arrest he had in his possession an amount of [number] in the context of the commission of these offences. The applicant was found by [Judge A] to be in an intermediary position in the overall criminal hierarchy of this operation and that he held a more senior position of trust, was entrusted with large sums of money and recruited and instructed another person in the commission of the offences.
The Tribunal accepts, on his evidence and statements provided to the [State 1] Police, that in the course of the police investigation, he agreed to all of the money found in his possession, in his car and at his home being forfeited and that the Supreme Court, [in] May 2015, made consent orders as to the forfeiture of these moneys.[2] It accepts that he provided cooperation and information available to him about other parties involved. In particular, relevant to his claims, he provided the [State 1] police the name, address and some other limited details regarding the person referred to by him as [Mr B].[3]
[2] See Sentencing Remarks, [June] 2017, p3
[3] See Statement by the applicant to the [State 1] Police dated [May] 2017
There is no information or evidence before the Tribunal to indicate any further action taken by [State 1] Police, or anyone else, adverse to [Mr B] on the information provided by the applicant.
Claim the applicant received a call from [Mr B] after his release on bail
The evidence of the applicant that he received a call from [Mr B] on [Relative 1]’s phone after he was released on bail following his initial arrest was contradicted by [Relative 1] at the hearing, who stated he never received any contact from [Mr B]. The Tribunal has considered the explanation provided when this conflicting evidence was put for comment at the hearing and following in the s424A letter. Having considered these explanations, it does not accept as credible or truthful that [Mr B] made contact with the applicant as claimed upon his release on bail, for the following reasons. While it accepts that this was a particularly stressful time for the applicant and [Relative 1], the Tribunal is not satisfied that this sufficiently explains their inconsistent evidence on such a critical matter. It is also not apparent to the Tribunal on the evidence how [Mr B] obtained [Relative 1]’s phone number or how he would have known when he was released on bail. The Tribunal considers it implausible that [Mr B] would contact the applicant so soon after he had been apprehended by police and yet he has not contacted him ever since. The Tribunal also observes that no mention was made of this contact in the applicant’s Statutory Declaration of 18 June 2018 lodged with his application.
For all of these reasons considered cumulatively the Tribunal does not accept that the applicant was contacted by [Mr B] after he was released on bail following his arrest in January 2015.
Claims relating to contact received by the applicant’s parents in India and threats made against the applicant
The applicant has claimed that since his arrest in Australia, the applicant’s parents were approached by persons in India making threats against him relating to the forfeited money and his cooperation with the police, and that they also received phone calls from [Country 3] enquiring about when the applicant intends to return to India. In support of these claims the applicant relies on statements provided by his father and [Relative 1] in Australia, and a letter dated July 2018 from his father to the police, in addition to his own evidence and claims.
For the following reasons the Tribunal has concerns about the veracity and credibility of these claims. Firstly, it observes that the applicant made no mention of any fear of return to India because of phone calls, visits or threats received by his parents, until action was taken by Immigration to cancel his visa following his conviction. Specifically, there is no evidence before the Tribunal that he mentioned at any time the visits or phone calls to his parents relating to this matter in any of his dealings with the police, or session with the psychologist preparing a report for his sentencing. The Tribunal considers this significant given, on his own evidence, that he was cooperating with the police and had several interviews. It has considered his response and the submissions made on his behalf by his representative, that he was under extreme pressure and stress during the course of the criminal proceedings, and as a non English speaking migrant he would also have been at a significant disadvantage with cultural and linguistic barriers and lack of familiarity with the criminal justice process. It was also submitted that he was legally represented and would have been advised to answer only the questions asked of him and offer no further information. While the Tribunal acknowledges the pressure, stress and barriers faced by the applicant during the criminal proceedings, it is also clear from the evidence that he cooperated and provided information to the police, and in that context the Tribunal considers it would have been reasonable and expected that, if threats were made to his family and against him as a result, he would have mentioned this at some point, whether to the police or at the very least to his psychologist who was preparing a report relating to his psychological state. The Tribunal acknowledges the representative’s submission that there is no evidence in any of the documents that the applicant was asked directly whether he had received any threats by the police or the psychologist, but it also notes and places weight on the applicant’s evidence to the Tribunal that he has no recollection of mentioning anything about these threats in any of his contacts with the police between 2015 and 2017 or in his session with the psychologist in December 2016.
Secondly, the applicant also did not mention these threats or any fear of returning to India to the Administrative Appeals Tribunal (differently constituted) in April 2016 when he appeared for a hearing relating to his Partner visa application. The issue in that case was whether there were compelling reasons to not apply the Schedule 3 criteria so that his application could be made in Australia. The applicant has explained that he did not mention the threats made to his parents at that time because his father only told him about it when he visited Australia after that hearing. The Tribunal accepts this explanation is consistent with movement records showing his father’s visit was in August 2016. However, it has concerns about the plausibility of his claim that his father did not mention the matter of the threats made against him until he came to Australia in August 2016. If such threats had been made, the Tribunal considers it reasonable to expect his father to have mentioned this to him.
Thirdly, it was submitted on behalf of the applicant that he mentioned the threats made against him because of his forfeiture of the money and cooperation with police immediately upon having his Bridging visa cancelled and seeking revocation of this in July 2017 and this was a full 12 months prior to his protection visa application and before he was aware of his right to apply for this visa. He provided a copy of the submission he made at that time, where he stated that ‘the person who put me in trouble with the law threaten me if I didn’t return his money back’ and that he was afraid to go back to India because this person was Indian and could come there anytime to harm him. The Tribunal notes that later in this document, the applicant refers to his concerns about returning to India are that his family depend on him to help them here in Australia and he has no job there. He states he is afraid for his safety because of the crime here and that a lot of money was lost and they want it back but he does not have it to give to them. No mention made in this document of any men coming to his father’s house or threats made in India through contact with his father.
The Tribunal observes that the first statement provided by the applicant’s father relating to the visits to his house and threats issued against the applicant is dated January 2018. A further statement from his father was provided with his protection visa application, dated 5 July 2018. The Tribunal notes that there are several inconsistencies in these statements, casting doubts on the reliability and veracity of claims made. For example in the first statement he referred to ‘[Mr B]’s men’ coming to his house repeatedly and threatening him and his family to return the money. He stated they entered his house and broke things and they threatened if the applicant returned to India they will kill him. However in the second statement provided with this application, his father referred to two phone calls he received from [Country 3] days after the applicant was arrested asking where the applicant was and where their money was, and a visit to his home about two months later by two men. He did not refer to anyone breaking anything in the home. Later in the statement he referred to another phone call and visit received around the time the applicant was released from prison (which was [in] May 2018) and a visit to the home by two different people, one of whom broke a glass panel on the door. At the hearing, the Tribunal took oral evidence from the applicant’s father and he stated that he received two phone calls from [Country 3], one just after his arrest and one after his release from prison. He also referred to two visits to his house and threats made against the applicant that they want their money back and will harm him if he doesn’t pay.
The Tribunal has concerns about the inconsistencies in the evidence provided by his father. It has considered the applicant’s response when this was put to him, that his father is uneducated and a simple village man and he may not have realised the need to give all the information he provided initially the second time when he was assisted by the solicitor. However, in addition to the inconsistencies, another reason the Tribunal has concerns about the veracity of these claims is that there has been no other contact, threats or harm against the applicant’s parents apart from these two alleged calls and two visits and they have remained living at the same address throughout and to date. The Tribunal notes that [Relative 1]’s evidence also is that he has visited India three times since then and has had no contact from [Mr B] or his associates at any time. The Tribunal considers the claims about contact with the applicant’s family are inconsistent, internally contradictory and lacking in credibility. On the one hand, his father says that the men demanded their money back and yet have made no ongoing efforts to obtain the money from his parents or relatives overseas, and on the other hand he states they threatened to kill the applicant upon his return, which would not help them to get their money back.
Additionally, the Tribunal observes and takes into consideration the evidence about the applicant’s [sibling]’s marriage in 2016. In his Statement dated May 2017 it is noted that the applicant requested his solicitors seek consent from the prosecution to vary his bail so that he could attend this wedding, though he was informed it was not consented to and so he could not attend the wedding. There is no reference here to any fear of threats of harm upon return by the applicant at this time, although it is acknowledged that the statement was made in May 2017 and refers to events in 2016, but not a specific date.
The applicant’s representative made detailed submissions arguing that none of the matters raised by the Tribunal at the hearing and subsequently in the s424A letter provide a sufficiently probative basis to doubt the veracity of the applicant’s protection claims and in particular the claims regarding the threats received by his father about him. The Tribunal has given these submissions careful consideration. While on the one hand it acknowledges that explanations have been given for some of the inconsistencies raised and the failure of the applicant to report the threats his father received prior to the protection application, on the other hand, the Tribunal is not required to accept uncritically any and all claims made by an applicant. In the present case, it finds the cumulative effect of all of the abovementioned concerns, rather than reliance on any one in particular, casts serious doubts in the Tribunal’s mind about the veracity of the claims that his father was approached and had threats made to the applicant’s life upon his return as claimed.
For these reasons the Tribunal does not accept that the applicant’s father was approached by men associated with [Mr B] at his home in India. It does not accept that he was contacted by [Mr B] by phone from [Country 3]. It does not accept that [Mr B] himself or by his associates, has made threats demanding repaying of the monies the applicant forfeited to the police, or that he or anyone has threatened the applicant’s life upon return to India for this reason or any other reason.
The Tribunal also notes that, apart from these claims, no other evidence is before the Tribunal that the person referred to as [Mr B], whom the applicant provided information to in the context of his criminal proceedings, is in India, or has any association with India. The only basis on which the applicant claims this is that he is a Sardar (Sikh), speaks Punjabi and wears a turban and on this basis the applicant believes he has operations in India. In the absence of anything else, and having rejected the applicant’s claims of threats made to his family in India, the Tribunal finds there is no evidence before it to support that [Mr B] has any current connection to India, including business and/or criminal operations or associates there.
Fear of harm in future in India
Having made the above findings, the Tribunal will now consider whether there is a real chance the applicant will face serious harm in India upon his return. Given his criminal conviction and the circumstances of his cooperation with police and forfeiture of a substantial sum of money, the Tribunal accepts that the applicant may have a subjective fear that [Mr B] or persons directed by him, may be interested to demand repayment from him and/or retribution for his cooperation with police. However, having rejected his claims that threats of this nature were made to his family, and in the absence of any evidence of [Mr B]’s presence or influence in India, the Tribunal finds there is no objective basis of a real chance of harm to him in India now or in the reasonably foreseeable future for this reason.
The applicant’s representative submits that the findings in the criminal matter, which the Tribunal has accepted, together with country information regarding the prevalence of organised crime and corruption in the Indian legal and justice system are sufficient to support a conclusion that there is a real chance the applicant will face serious harm upon return. The Tribunal disagrees with this. In the absence of any reliable conclusive evidence that the applicant’s criminal activities in Australia are connected to a particular person or entity that is currently active and/or operating in India, there is no basis for this conclusion.
The Tribunal considers it unnecessary to take into consideration general information about the existence and prevalence of organised crime in India, although it does not at face value take issue with this, and has considered the information and sources referred to by the applicant’s representative in his submissions.
However, given its findings above, the Tribunal is not satisfied on the evidence before it, that the applicant faces a real chance of serious harm from [Mr B] and/or his associates in India now or in the reasonably foreseeable future, because he caused disruption to his criminal enterprise, or because he forfeited a substantial sum of money or cooperated with the police in Australia in this matter. While the Tribunal is prepared to accept that organised crime activity exists in India and Punjab specifically, and that there is evidence of a degree of police corruption in India, it does not accept in the present case that the applicant faces a real chance of serious harm in India in the reasonably foreseeable future for the reasons claimed.
Fear of harm as a Sikh
The applicant has also claimed he fears harm upon return to India in the form of harassment, assault, torture or other ill treatment because of he is Sikh.
The Tribunal accepts the applicant is a Sikh as claimed. He was born and lived most of his life in Amritsar, Punjab. The Tribunal observes that he was able to complete his education, to post secondary level, including successfully completing a [qualification] in neighbouring state of Jammu and Kashmir and his parents and sibling have lived continuously in Punjab throughout their lives.
Independent information before the Tribunal indicates that the majority of inhabitants of Punjab are Sikh and it is where 80% of the Sikh population of India live.[4]
[4] India: Treatment of Sikhs in Punjab (2013-April 2015) Research Directorate, Immigration and Refugee Board of Canada, Ottawa
DFAT’s latest Country Information Report on India[5] states “Sources agree that, since the late 1980s and early 1990s, Sikhs have lived peacefully in India and the majority of Sikhs do not experience societal discrimination or violence. Sikhs who advocate for an independent ‘Khalistan’ may be subject to attention by authorities. DFAT assesses that Sikhs in India generally face a low level of official and societal violence and discrimination.” The Tribunal accepts that there have been reports of police action against Sikh militants during 2017-2018[6]. It has also taken into consideration the submission of the representative that the re-emergence of the Khalistan movement puts ordinary Sikhs in India at risk of persecution especially from Hindu fundamentalists, however it does not consider the applicant will be vulnerable to this if he is returning to his home state of Punjab, which is majority Sikh.
[5] DFAT Country Information Report India 17 October 2018, paragraph 3.19, p15
[6] Immigration and Refugee Board of Canada, Treatment of political activists and members of opposition parties in Punjab; treatment of perceived supporters of Sikh militancy by authorities (2017-April 2018), 14 June 2018.
Given the applicant is from Punjab state, this is likely where he will return to and there is no evidence before the Tribunal to indicate he is or has ever been involved in advocating for a separate Sikh state or Khalistan, the Tribunal is not satisfied on the available independent information, that he faces a real chance of serious harm upon return to India on the basis of being Sikh or being imputed with a pro-Khalistan political opinion, now or in the reasonably foreseeable future.
For the reasons given above, considering the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary Protection
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 has considered whether there are 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 that he will suffer significant harm as defined in s36(2A) of the Act.

Having rejected above the applicant’s claims about contact received by the applicant’s parents in India and threats made against the applicant from [Mr B] or his associates, and absence of any other evidence that the applicant’s criminal activities in Australia are connected to a particular person or entity that is currently active and/or operating in India the Tribunal is not satisfied there are substantial grounds to believe there is a real risk the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if he is returned to India.
While the Tribunal accepts that organised crime exists in India and there is a degree of entrenched political, judicial and police corruption, the Tribunal is not satisfied on the evidence before it that the risk faced by the applicant of harm from any such generic criminal group(s) is one faced by him personally as opposed to a risk faced by the population of the country generally and on that basis there is taken not to be a real risk of significant harm in respect of him under s36(2B) of the Act.
For the above reasons the Tribunal is not satisfied, having considered his claims individually and cumulatively, there are substantial reasons for believing there is a real risk the applicant will suffer significant harm if removed from Australia to India. 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.
Meena Sripathy
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.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
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[2019] AATA 4210

13 March 2019

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Immigration

Statutory Interpretation

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