1835160 (Refugee)

1835160 (Refugee) [2019] AATA 1230 (11 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1835160
COUNTRY OF REFERENCE:                  India
MEMBER:Paul Windsor
DATE:11 January 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 January 2019 at 10:09am
CATCHWORDS
REFUGEE – protection visa – India – gambling problem – unpaid debts to gangsters – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 26 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 October 2018. The delegate refused to grant the visa on the basis that she found that there was nothing in the applicant’s claims to suggest that he was ever targeted for one or more of the reasons mentioned in s.5J(1)(a) of the Act and therefore is not a refugee as defined in s.5H(1) of the Act. The delegate, while accepting that the applicant has gambling debts, did not accept that he owes money to gangsters in India or that the people to whom he owes money have the motivation or capacity to inflict significant harm on him. Consequently the delegate was not satisfied that there is a real risk that the applicant would suffer significant harm if he was to return to India.
The applicant applied to the Tribunal for review of this decision on 30 November 2018. He provided a copy of the delegate’s decision record to the Tribunal.[1]
[1] See folios 13-18 of the Tribunal file.
The applicant appeared before the Tribunal via video-link with [an Immigration Detention Centre] on 9 January 2019 to give evidence and present arguments.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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 Home Affairs (the Department) – 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
In his Protection visa application the applicant claims to be a citizen of India who was born in Sri Ganganagar in Rajasthan state India on [date]. He states that he belongs to the Indian ethnic group, is of the Hindu religion, and speaks, reads and writes English and Hindi. He indicated he has never married. He indicated he departed India legally [in] September 2015 on Indian passport [and] arrived in Australia [in] September 2015, entering on a Student visa.
Claims from the Protection visa application
The applicant’s claims from his Protection visa application are summarised as follows:
·He left India and came to Australia to study. Before he left India his circumstances there were good.
·After coming to Australia he started gambling and lost a lot of money. He then borrowed money from family and friends. A big part of what he borrowed was gangster’s money. He lost all the money that he borrowed and whatever he had saved for his study fees.
·If he returns to India his life would be at risk as he has received serious threats. His family has been harassed and have told him not to return as they are worried about his well-being. They know he would be at risk of getting killed.
·The authorities cannot protect him as they are corrupt. The wife of one of the persons he owes money is a police constable. They are well connected with the authorities. India is full of nepotism and ‘jobbery’ and corruption.
·He would not be able to relocate to an area where he would not be harmed. His family have no connections outside the state. They also can find him anywhere in India by using their sources and tracking him.
The applicant attended an interview with the delegate on 19 November 2018. The Tribunal has listened to a recording of this interview.
The delegate’s decision record, a copy of which was provided to the Tribunal by the applicant, indicates that the applicant arrived in Australia [in] September 2015 on a [Student] visa which was cancelled on 17 August 2017, following which the applicant became an unlawful non-citizen. He was placed in immigration detention [in] September 2018 after being located by the [police] during a routine traffic stop.
Findings and reasons
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of India, there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
Noting the delegate’s findings in her identity assessment, the Tribunal accepts that the applicant is a citizen of India and that his identity is as he claims it to be. The Tribunal accepts that India is the applicant’s ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
In general the Tribunal found the applicant’s evidence to be vague, inconsistent and unconvincing. For the reasons detailed below the Tribunal did not consider him to be a credible witness and does not accept his key claim that he borrowed gangsters’ money that he cannot repay and fears that he will be harmed as a consequence if he returns to India.
Assessment of claims
The applicant claims to fear harm in India from gangsters he claims to have borrowed money from but is unable to repay.
Background
The applicant indicated that he was born in a village [near] the town of Sri Ganganagar in Rajasthan state in India. He indicated that his father passed away about 10 years ago but his mother and [brother] are still living in Rajasthan. He indicated that he also lived with an uncle and aunt in [Town 1] (in the Sri Ganganagar district) where he completed his schooling and [degree]. The applicant has a cousin in Australia and on his arrival in Australia (in [September] 2015) he lived with his cousin (and his cousin’s family) in [Australian City 1]. He said that after about 8 months he moved out and lived by himself in suburban [City 1].
The applicant indicated that he was enrolled in a degree course [but] withdrew from that as he became addicted to gambling after his arrival in Australia and did not have enough money to pay the course fees. He subsequently enrolled in a [different course] but indicated that he also withdrew from that course because he couldn’t kick his gambling habit. He said he commenced this course in the second semester in 2016 and stopped attending after 2-3 months, in late 2016. He indicated that he was just focused on gambling, had lost a lot of money, and could not afford to pay his course fees.
The applicant indicated that he had employment working at a [specified workplace] and as a [Occupation 1]. He said he spent the money he got from his employment on gambling and asked his mother and family to send him money, saying he needed it to pay his fees because he was changing his course. He indicated that his mother sent him $[amount].
The applicant told the Tribunal that he had no idea his Student visa had been cancelled (on 17 August 2017) until he was picked-up by [police in] September 2018. He said until that time he thought his student visa was valid until March 2018. He indicated, however, that he ceased working ‘around June/July 2017’ and just stayed at home because he was stressed because he had so much debt. The applicant indicated that he never sought to contact Immigration after he ceased studying because when he spoke to friends about his situation they said that if his visa had been cancelled he might be deported.
The applicant indicated that he remains on good terms with his family, including his mother, uncle and cousin who leant him money he has not repaid.
Claim to have borrowed money from gangsters which he lost gambling and cannot repay
At the hearing the applicant claimed that he also borrowed money from three people, [Mr A], [Mr B] and [Mr C]. He said he borrowed a total of $[amount] from [Mr A], in three [tranches] within a two month period over August and September 2016. He said he borrowed $[amount] from [Mr B], within the same ‘three month’ period. He said he borrowed $[amount] from [Mr C], within the same period.
The applicant said he knew these people because they had encouraged him to become their representative and run for [specified position] of the student association at his college. He said they were the local AVBP (Akhil Bharatiya Vidyarthi Parishad) party representatives (the ABVP is the student wing of the right-wing and anti-communist Rashtriya Swayamsevak Sangh (RSS), which is also described as the ‘mentor’ of the Bharatiya Janata Party (BJP), the ruling party nationally since 2014 and in the Rajasthan state assembly from December 2013 until December 2018).[2]
[2] ‘The rise of ABVP and why it attracts the youth’, Hindustan Times, 9 March 2017, >
When queried about the terms of these loans, the applicant said that he agreed to pay [Mr A] interest of INR[amount] or $[amount] each month, while [Mr B] and [Mr C] simply leant him money without any interest charges. When queried why this was the case the applicant said that [Mr A] lends money as part of a business whereas the other two simply leant him money on the basis that he would repay it in full within 5-10 days.
The applicant indicated that there were no contracts or written agreements with any of these individuals, no securities/collateral and that he has never made any repayments on any of the claimed loans.
The applicant indicated that when he failed to pay the money back or make any repayments these people started calling him and his mother and threatening them. He commented that his mother planned to sell a property to clear his debts but this has not been possible because she only has a one-quarter share of the property, which has been handed down through his father’s family. He indicated that one of his paternal uncles who also holds a one-quarter share, is not willing to sell at this time. The applicant also commented that he is now unsure whether he would be safe even if the debt is paid off, as he has ‘not responded’ to the lenders in a long time. He said that initially he was stalling them but when they started yelling at him and threatening him, and calling him 10-20 times a day, he blocked their calls.
Having carefully considered the applicant’s evidence, the Tribunal, while accepting that the applicant may have lost money gambling and lost focus on his studies and/or been unable to afford his course fees, does not accept that the applicant borrowed money from unauthorised money lenders or ‘gangsters’ which he cannot repay. This finding is for the following reasons, considered cumulatively.
Firstly, the Tribunal found the applicant’s description of his relationship with the three individuals he claimed loaned him money to be vague and unconvincing. The applicant said he met these people when he was doing his [degree] at [a named college] in [Town 1]. He said he was elected [office holder] of the student union and he met these people who have ‘political connections’ and has ‘political relations with them’. He indicated that the ABVP is affiliated with the BJP. The Tribunal asked the applicant why he ran for [specified position] of the student union. He said that it randomly came to mind. When queried what the role entailed he said he was always involved in sport and had a good reputation. When asked what he actually did he replied ‘nothing much’ and indicated that he gave a couple of speeches and did a couple of things for the students such as ‘bringing up the staff’ and seeking to improve the quality of the furniture. He said he held the position for one year. When asked what his speeches were about the applicant said ‘normal things’ and commented that he told the students that if they elected him he would do things such as works to improve the college. The Tribunal asked the applicant why these ABVP people wanted him to be their representative and why they didn’t run themselves. He said they were not eligible because they were not in the college. He commented that when there is an election all the party members come out. While the applicant has not provided any documents to verify that he was [specified office holder] of his student union for a year, the Tribunal accepts that this may have been the case. The applicant did not state anything, however, to indicate or suggest that he would have been of interest to people affiliated with the ABVP. None of his comments indicated that he had any political awareness or might have been useful to the ABVP in advancing their political agenda. The Tribunal therefore considers it highly unlikely that the applicant had a political relationship and/or friendships with [Mr A], [Mr B] and [Mr C] as claimed.
Second, the Tribunal finds it highly unlikely that these individuals would have been prepared to loan the applicant significant amounts of money without any paperwork whatsoever and with nothing by way of a security, particularly given the applicant is in Australia where they cannot readily monitor him, and that they would have continued to extend money to him over a two-three month period in the absence of any repayments to any of the individuals concerned.
When asked why there were no written agreements the applicant said it was because he was in Australia. When queried that this could easily have been arranged via email he altered his account and said they did not require anything in writing because he had a good reputation. When queried further that the Tribunal finds it surprising that these people would be prepared to loan him money on the basis of phone calls without any written agreement or security/collateral, the applicant again altered his account and said the only ‘big amount’ loaned was from [Mr A] who trusted him and was also to receive $[amount] per month in interest. He commented that in India people think that if someone is in Australia they must be rich. The Tribunal found this evidence unconvincing. The applicant claims that [Mr B] and [Mr C] loaned him $[amount] and $[amount] respectively over the same period (of two-three months). The Tribunal considers these are not insignificant amounts. The applicant indicated that these loans were interest free on the expectation that they be repaid within 5-10 days, but no repayments have ever been made. He indicates, however, that [Mr A] extended three loans over a two month period, and did not expect any repayment over this time. Given there is nothing concrete to indicate that the applicant had the capacity to repay these loans (or the monthly interest on the loans from [Mr A]) and he has indicated that he did not make any repayments, it seems most unlikely that these three individuals would have extended a total of five loans to the applicant over a two month period, let alone without any documentation or security, solely on the basis that he had a ‘good reputation’ dating back to his college days from 2009-12, and because he was studying overseas.

The Tribunal also queried the applicant that the total amount of the five loans as described at the hearing is $[Amount 1], whereas the delegate’s decision record indicates that he told her he borrowed approximately $[Amount 2] from these three individuals. The applicant commented that he told the delegate at the Protection Visa interview that he had borrowed a total of $[Amount 3]. The Tribunal put to the applicant, in accordance with the requirements of s.424AA of the Act, that it had listened to a recording of the interview and it is clear that he told the delegate he borrowed a total of nearly $[Amount 2] from the three persons concerned. The applicant did not request additional time to comment on or respond to the information but said he is a bit confused and doesn’t remember if he mentioned it but maybe he told her about it. He commented that he checked the day before the hearing and calculated the amount and how much it is so far. The Tribunal finds that the applicant’s evidence regarding how much he claims to have borrowed from these three people was inconsistent, casting further doubt on his claims to have borrowed money from them.
Third, the Tribunal would expect that in the claimed circumstances the lenders would be continuing to put extreme pressure on the applicant’s mother and other family members in India to enable them to re-establish contact with the applicant and have him or other family members agree to some terms for repayment of the loans. When this was put to the applicant he said they had visited his uncle but his uncle claimed to have no relationship with him. He said his mother was under a bit of pressure but he told her everything and promised her that he would not gamble again. In response to his comment that these people last contacted his mother 5-6 months ago, the Tribunal put to the applicant that it could not understand why these people would not continue to harass his mother to seek to force him to agree to make repayments. He replied that maybe they are just waiting for him to return to India. Again, the Tribunal finds this to be a highly unlikely scenario. If the applicant had been in debt for a total of $[Amount 2] to three people who are gangsters or who have gangster connections since September 2016 as claimed, had made never made any repayments and had cut off all contact with these people, the Tribunal considers it highly unlikely they would cease contacting family members in India and simply bide their time waiting for him to return to India.
Fourth, the Tribunal considers that if the applicant was fearful for his safety in India from September 2016 he would have been highly motivated to explore options to enable him to remain in Australia, but he did not do so prior to his location and detention [in] September 2018. When queried about this, the applicant indicated that he thought about contacting Immigration a few times to inquire about his status and visa options but when he spoke with his friends about this they told him that if his visa had been cancelled he might be deported. The applicant indicated that he ceased working in around June or July 2017 and from that time he just stayed at home as he was too stressed by the debts he had incurred. Noting the applicant had indicated that he ceased living with his cousin eight months after he arrived in Australia and had moved out on his own, and that he had an all-consuming gambling addiction, the Tribunal queried the applicant how he was able to support himself from this time until he was detained by [police] in September 2018. The applicant said his cousin, friends and his mother assisted him. When queried how he was able to pay his rent he said cousin gave him money for the rent. The Tribunal found the applicant’s explanation unconvincing and considers it unlikely that his cousin, mother and friends would continue to provide the applicant with money when he is no longer working or attending classes and in circumstances where he has previously gambled away large sums of money. The Tribunal considered that the applicant was not being frank about his circumstances from mid-2017 until he was detained in September 2018.
When the Tribunal put to the applicant that in his claimed circumstances it would expect that he would have been highly motivated to find out about Protection visas and that there is a wide range of information sources that he could have accessed such as the Immigration website, migrant resource centres, migration agents and asylum seeker support agencies, where he would have found out about the option to seek protection, the applicant replied that the biggest mistake from his side was that he never sought to find out anything like that. He said his mistake was to listen to friends. The Tribunal is of the view that if the applicant had genuinely feared for his safety from gangsters in India he would have actively investigated options to remain in Australia during the period of over a year when he claims to have stayed at home from July 2017 until September 2018 (and particularly from March 2018 when he indicated he knew his visa would have expired), with no plan to resolve his claimed predicament.
Fifth, when detained [in] September 2018, the applicant did not mention concerns for his safety from gangsters until nearly seven weeks later when he made his Protection visa application on 25 October 2018. The Tribunal raised with the applicant the delay in him seeking protection after he was detained, quoting from the delegate’s decision record regarding his interactions with Australian Border Force (ABF) and Departmental officers, and asked the applicant why he did not mention earlier that he feared for his safety because he had unpaid debts to gangsters (rather than debts to family members and friends). The applicant said he was told by Immigration that because he had been an unlawful non-citizen for over a year he was not eligible to apply for visas and had to leave. He commented that he told an officer he had a girlfriend and inquired about applying for a Partner visa but was told that if he did not leave voluntarily be would be forcibly removed handcuffed and with escorts. The Tribunal put to the applicant that the Tribunal finds it difficult to believe that if he told ABF and/or Departmental officers that he had concerns for his safety if returned to India that he would not have been informed of his right to seek protection. The applicant said he told them he had a lot of debts and was worried but they did not mention protection. He indicated that he did not find out about Protection visas until he spoke with a fellow detainee who asked him why he was in detention and why he did not come out of his room, and subsequently told him he could apply for a Protection visa. The Tribunal finds that there is nothing in the applicant’s evidence to indicate that he raised with ABF and/or Departmental officials that he had concerns for his safety in India because he owed money to gangsters or to people who have gangster associates. The Tribunal notes the comments in the delegate’s decision record indicating that she raised this matter with the applicant at her interview with him, putting to him that when specifically asked by his Status Resolution Officer on 13 September 2018 whether there were any reasons why he could not return to India he did not mention borrowing money from gangsters or fearing being harmed by them but said he ‘only borrowed from friends about $[Amount 2]’ and ‘I don’t want to owe money’. The delegate indicates that the applicant commented that this response reflected the way the question was asked and that he referred to the gangsters as ‘friends’ because he knew them from when he was at college. The Tribunal does not find this explanation convincing. The Tribunal does not accept that the applicant would refer to gangsters whom he fears might cause him serious or significant harm should he return to India as ‘friends’ merely because he knew them when he was in college. The Tribunal concludes that if the applicant had serious concerns for his safety from gangsters or people with gangster associates should he return to India he would have made this clear when asked about his circumstances by ABF and/or Departmental personnel shortly after he was detained [in] September 2018. The Tribunal does not accept that the applicant sought to do this prior to him lodging a protection visa application some seven weeks later on 25 October 2018, after he had spoken to a fellow immigration detainee.
Considering the above matters and findings cumulatively, the Tribunal concludes that the applicant did not borrow money from gangsters and/or ABPV members with gangster associates in 2016 that he has not repaid and therefore finds that he has not received serious threats and his family have not been harassed by such people. Accordingly, the Tribunal finds that the applicant does not face a real chance of suffering serious harm or a real risk of suffering significant harm from gangsters or persons with gangster associates including [Mr A], [Mr B] and/or [Mr C] as a consequence of having unpaid debts to [Mr A], [Mr B] and/or [Mr C] if he returns to India.
Accordingly, 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). For the reasons given above, the Tribunal has found that there is not a real chance that the applicant would suffer persecution involving serious harm from [Mr A], [Mr B] and/or [Mr C] and/or their supporters or associates, if he returned to India.
In considering whether there is a real risk that the applicant will suffer significant harm if returned to India, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[3]
[3] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Having regard to the findings of fact set out above, the Tribunal also finds that there is not a real risk that the applicant would suffer significant harm as defined at s.36(2A)(a)-(e) of the Act. That is, the Tribunal does not accept that there is a real risk that the applicant will be arbitrarily deprived of his life; and/or will have the death penalty carried out on him; and/or will be subjected to torture; and/or will be subjected to cruel or inhuman treatment or punishment; and/or will be subjected to degrading treatment or punishment, by [Mr A], [Mr B] and/or [Mr C] and/or their supporters or associates, including political or police supporters or associates, or anyone else, as a necessary and foreseeable consequence of the applicant being removed from Australia to India.
Consequently, 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.
Paul Windsor
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.
…

[2019] AATA 1230

11 January 2019

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

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