1900960 (Refugee)

[2024] AATA 4232

1900960 (Refugee) [2024] AATA 4232 (2 August 2024)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1900960

COUNTRY OF REFERENCE:                   India

MEMBER:  Alan McMurran

DATE:  2 August 2024

PLACE OF DECISION:  Sydney

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

Statement made on 02 August 2024 at 9:45am

CATCHWORDS

REFUGEE – protection visa – India – political opinion – youth wing of the Communist Party of India (Marxist) (CPI-M) – Left Democratic Front (LDF) – assisted the family of a deceased friend – insufficient information before the Tribunal – credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

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

1. This is an application lodged 15 January 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 4 January 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. [The applicant] who claims to be a citizen of India, is [age] years old and arrived in Australia [in] September 2017 on a visitor visa. He applied for the protection visa on 22 October 2017. He is married with two children and his family remain living in India in their home state of Kerala.

The review application

1. The Tribunal wrote to the applicant on 23 May 2024 under section 424 of the Act inviting him to provide information. The invitation was sent to the applicant’s recorded email address. The invitation requested a response by 6 June 2024. The applicant did not respond or provide any further information. On 5 July 2024, the Tribunal provided the applicant a Medicare letter-confirmation, in response to a request from him, and which informed the Tribunal that the applicant was receiving communications via his recorded email address.

2. On 12 July 2024, the Tribunal invited the applicant to a hearing in Sydney. The hearing invitation informed the applicant that the Tribunal had considered the available material but was unable to make a favourable decision on this information alone. The invitation attached a Fact Sheet explaining how the applicant could provide further information. The applicant did not respond to the invitation before the hearing. The applicant appeared unrepresented before the Tribunal by telephone on Friday, 26 July 2024 to give evidence and present arguments.

Claims and evidence

1. In his protection visa application, the applicant claimed that as a young student he joined with other students the youth wing of the Communist Party of India (Marxist) (“CPI-M”). He was a member of the student Federation. He claims he was approached to join the political party when he was [age] years old. He claims that political activity in Kerala was dominated between the CPI-M and the opposition BJP-RSS party. The two parties frequently clashed and there were a number of deaths on both sides. He claims at the time of “hotbed” fighting between them he was helping the CPI party committee. His parents encouraged him not to be involved and he found employment in the shipping industry around 2012. His employment meant he was not living in Kerala full time.

2. He claims he was at sea with his employment in 2015 when he received a message that one of his friends had been killed. When he returned to India in 2016 he moved to neighbouring Chennai to avoid being harmed. The applicant attached an extract from an Indian media [outlet], [which] referred to a [day] in Kerala when violent clashes occurred between the political parties. The article refers to the deaths of two persons, with dozens injured and gang battles between the parties. The applicant claims one of the persons killed was his friend.

   Department interview-20 December 2018

3. The applicant claimed he came to Australia because in India he has “issues there”. He explained he had been a member of the youth wing, the Left Democratic Front (“LDF”) of the

CPI-M. He said he was a member of the Indian Communist Party but did not have a current membership card nor evidence of any membership. He maintained he was no longer a member. He said he had worked for the party as a volunteer organising people for meetings. He claimed his last participation was in 2015. He was asked questions about Marxist theory to which he gave vague responses. He claimed he had never been in trouble with police but had been threatened by members of the BJP. He claimed he had not participated in riots or demonstrations which became violent. He said he had only attended peaceful demonstrations, which he did “many times”.

1. The applicant had spent time travelling with his employment, including to [named country] where he had not sought asylum. He explained that he had returned to India, following the death of his friend, [Mr A], [in] August 2015. He could not fully explain the circumstances of his friend’s death as he was not present on the [day]. He said it was caused following “friction” between the opposing parties. He was afraid to continue living in Kerala and had moved to Chennai. He claimed he helped his friend’s family after he was killed. He claimed that was the main reason he was a target for the BJP and because he had been a CPI supporter. He claimed the BJP has a large network which makes it difficult for him to remain living in India. He claimed if he returned to India he would “work for the party” and the BJP would “try to stop me”.

2. The applicant agreed that he had not changed his address in Kerala where his family still lived. He claimed he had not worked for CPI-M since 2015 but would still be “watched”, no matter how long he stayed away. He was asked about living in Chennai from 2016 where he claimed he had worked in a [shop], and was just living there, not hiding there. He claimed he saw his friends but did not give his identity to others. He claimed State police were not capable of personal protection for him if he returns to Kerala and on a full-time basis, or anywhere he might live, as they do not have the resources. He claimed that it is ordinary party members who are harmed in the violence, as the leaders are “not in the front line” and that he could still be attacked if he returns. He claimed that sometimes he had received threatening phone calls when living in Chennai and was reminded he had not mentioned this in his application or earlier in the interview and claimed it had happened on two occasions. He said he had not received any phone calls after that, but had informed the police.

   The Department decision-4 January 2019

3. The delegate accepted that the applicant had been a CPI-M supporter as an ordinary member assisting events. It was also accepted that generally there was political disagreement and violence and deaths occurring on occasion between the opposing parties. The delegate accepted that the applicant’s friend, [Mr A], was one of the person’s reported as killed in the media article, that the applicant had helped the deceased’s family, and that the applicant had received two threatening phone calls when living in Chennai.

4. The delegate found inconsistencies in the applicant’s account and did not accept that he would be targeted personally for reason of his politics and become another victim of political violence. The delegate found that the applicant had not taken steps to avoid any persecution based on his political opinion when the applicant was living in Chennai, and could safely remain there, or elsewhere in India.

5. On the available information, the delegate found in the period 30 July 2015 to 28 March 2016 the applicant was in fact working on a ship on a worldwide voyage and not living in India, and would not have been identified as an associate or witness to the death of his friend [in] August 2015. The applicant did not return to India until 2016 and moved to live with friends in Chennai.

1. The applicant had been unable to explain how his association with his friend would result in him being personally targeted. The delegate noted the applicant had been involved in local politics for many years since a student from on or about 2002 and had managed to avoid any involvement in violence in that time. He noted also the applicant was no longer volunteering to work with the CPI-M since 2015 and that eventually he would be forgotten about. The delegate found the applicant was not in any enhanced risk of persecution because of his political opinions or prior membership of CPI-M.

   Hearing – 26 July 2024

2. The Tribunal hearing was conducted with the assistance of an interpreter in the Malayalam and English languages. No issues were detected concerning the use of the interpreter and the applicant stated he had understood the hearing and the process. He did not seek an adjournment or request any further time and confirmed that he had provided all his information.

3. The Tribunal explained to him the process. The Tribunal asked why he had not provided information in response to the Tribunal request to do so. He said he did not receive the letter until after the date due for his response, so he did not reply. He did not produce any information, documents, statements or other material for the hearing. He said everything he had previously told the Department was true and he had given all his information “in the beginning”. He did not request any deferral or adjournment and was ready to proceed without any assistance.

4. After the Tribunal introduction, he was asked if he needed time to provide anything further. He indicated he had “documents” to show that he had paid money to a deceased person’s family. The Tribunal informed him it could accept that he had given money to the person’s family.

   Claims re-iterated

5. The applicant’s claims are political in nature and arise from a fear of reprisal by members of the BJP-RSS party when he was living in Kerala. He claims he fears being harmed because he helped the family of a deceased member of the CPI-M party in 2015-16, who was killed by BJP-RSS members. The circumstances of the killing were not outlined by the applicant who was not present at the time [in] August 2015. He claimed he had been a friend of the deceased, which is why he helped the family after his friend was killed, and for which reason he believes he has now been targeted. He claims that two current members of the BJP ruling committee “know” him and will take some action against him if he returns. Those claims were explored as explained below.

6. The applicant confirmed his date of birth, that he was [age] years old, and that he was formerly a resident in Kerala State in south-western India. He has family still living in Kerala which includes his parents, his wife and 2 children aged [age] and [age]. He confirmed that he had travelled to India on 3 occasions since lodgement of his application, in 2019, 2022 and 2023. He said his travel was for the purpose of “medical emergency”, when in 2019 his wife was unwell, in 2022 his son was unwell and in 2023 his mother had been unwell. He said that he had spent a total of 7 days in Kerala at his home and the rest of the time over a total of 7 months from the three visits, living with a friend in Chennai, where his family also visited him for two weeks. He did not explain what he was doing in Chennai. He said he did not tell anyone he was there. He had not been harmed or threatened when he visited firstly Kerala and then Chennai before returning to Australia most recently [in] February 2024.

7. He claimed that when living in Chennai, he kept a low-profile and “did not go out”. He said that he had never been physically harmed before he left India for Australia in 2017. He said

however he had received threats by telephone. He said his friends in India regularly tell him not to return. He said he is afraid that if he goes there to live, he will be attacked or killed. He said the State police cannot provide personal protection. He claims he had reported to the police using his mobile phone about the threats he had received, but did not get a response and was not sure if his “report” from his mobile phone was in fact “registered” by the police.

1. The applicant was asked if what he had told the Department interviewer was true. He believed it was. He was reminded that he had said at the interview that he had been a member of CPI-M for about 3 months. He responded that he had not been an actual member, but was just a “helper”. He said he had been politically active as a student from about 2000, with other students. He said to his knowledge none of his other former student colleagues had been harmed or threatened for their activities. When asked why he was threatened, he maintained it was because “I helped the deceased’s family and I have been singled out because of that”. When asked how the BJP knew he had helped the family, he said the family had spoken about it, and the BJP and the party secretary “know”. He said he cannot know for sure how they came to know, or the details of what they know.

2. The applicant did not volunteer any further information about the claimed event concerning the killing and said that after he returned to India in 2016, he had gone to live in Chennai and kept a low profile. He denied working in a [shop] there, contrary to his evidence at the Department interview, and what he had told the interviewer in December 2018, but then said, “I can’t remember”. He was asked why he could not continue to live in Chennai where he felt safe and keep a low profile, or for that matter, anywhere else in India. He said he could be found anywhere he might choose to live in India and BJP members “could attack me” because they have a large network.

3. The Tribunal pointed to country information in Australia which says that the vast majority of citizens in India do not experience political violence and according to DFAT’s most recent report (29 September 23), that “those with diverse or anti-government political opinions in general face a low risk of official discrimination or violence on the basis of their political opinions”.1 The Tribunal noted that Kerala is usually a quiet and peaceful State where people can live safely, and where the CPI-M is in control. He agreed but said “violence is everywhere in India” and “a lot doesn’t get reported” and he did not accept the DFAT summary that the vast majority of Indian citizens do not experience daily political violence.

4. He was asked what he would do if he returned to India. He said he did not have a job and does not know what he will do. He said in Australia he is presently working in a [workplace in Sydney] where he has also worked as a [Occupation 1] for 4½ years. He said he is financially self-sufficient and sends money home to his family. He said his wife works as a [Occupation 2]. He said he has no plans to return to India at all and needs to stay in Australia “looking after myself”.

5. The Tribunal pointed out to the applicant its concerns arising from his oral evidence and information available. Namely that:-

   ·He had not identified anyone in particular who might be the perpetrator of serious harm to him, other than “the BJP” party in general. That his fear of serious harm appears to arise from his subjective concerns about what he fears, rather than from any actual event or action or fact or circumstance that he had experienced and relies upon or could point to.

1 DFAT 29 September 2023 at 3.87

·He was unable to explain clearly how the BJP even knew about him and in what circumstances, other than what he had been told by others, and that he believes two opposition committee members still “know” him.

·None of his friends or colleagues to his knowledge who had also been party helpers were harmed or threatened, and threats had been made in general by BJP-RSS to all CPI-M opponents, not just to him.

·He did not have a rational explanation for why somebody helping a family in distress over a lost loved one would be “singled out” and face a real chance of serious harm from political opponents as a consequence, when he was not a party-political member himself and where country information indicates citizens do not face a personalised risk of violence or harm because of their political opinions alone.

·He has no profile either within the CPI-M party or with any other political affiliation with that party, and is not a current member of any political organisation, and has not been for many years.

·He has lived safely in neighbouring Chennai without threat or harm, recently for up to 7 months in total, and has worked there before quite safely.

·The Tribunal pointed to inconsistencies in his information; his claim of telephone threats, which he had not independently verified and which had been reported to him by others; he had said he received phone threats “a couple of times” in Kerala; he initially claimed to have made a complaint to police in Kerala, then claimed to have reported the threats “by phone” from a ship; his evidence at the hearing about the number of threats he received (“10 or 20”) was inconsistent with what he had told the interviewer in 2019 (“one or two”) and whether he had received them personally.

1. In response, the applicant referred to two members of the BJP local committee who “knew” him in 2015 and who he named as ‘[Mr B]’ and ‘[Mr C]’ and who he claimed were still there. He was asked why he had not raised this information previously at his interview to which he responded he could not remember. He thought he had reported to police via his mobile phone “from a ship”, but had since changed his mobile and had no record, had not heard from police and does not believe they could protect him in any event. He said he received two phone calls personally when he moved to Chennai in 2016, and was threatened that “you will be in danger if you come to Kerala”.

2. The applicant was offered the opportunity to provide further information but declined and did not request time to do so, saying he had nothing further “that I know of”.

CRITERIA FOR A PROTECTION VISA

1. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

2. 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.

1. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

2. 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.

1. 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

1. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

Nationality and Identity

1. The applicant has provided a copy of his passport to the Department. On this information, and as was found by the Department following an application and identification test conducted on 10 January 2018, the Tribunal is satisfied that the applicant is a national of the Republic of India.

2. At the time of this decision, the applicant remains in Australia and the Tribunal is satisfied that the applicant is outside his country of nationality.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed.

2. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Written statements by an applicant such as have been made in this instance carry little or no weight as evidence of any actual claims.

1. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim:

   s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155

   at 169-70).

Analysis and findings

1. The Tribunal finds that there are significant problems with the applicant’s claims. The written application and oral evidence presented by the applicant is not sufficiently detailed and persuasive to enable the Tribunal to be satisfied that the applicant faces a real chance of persecution in India on account of his political associations and former involvement with the CPI-M, or that 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 chance that the applicant will suffer significant harm.

2. The Tribunal does not accept the applicant’s claims as credible or that he faces a real chance of persecution on return to India. His answers to questions posed were vague and implausible, such as facing a chance of harm everywhere in India and no matter where he might live. His statements were not corroborated by any contemporary evidence. There has been a relatively significant passage of time since the applicant last provided the Department with information in relation to the applicant’s claims in October 2017 in the written application, and in December 2018 in a Department interview. Nothing further has been provided since the delegate refused the application on 4 January 2019. His principal claim is that he will be personally targeted for having assisted the family of his deceased friend and for giving that family financial support. The Tribunal has accepted that he gave such financial support, but the applicant has not provided any information from the family about the circumstances, whether they have told others about his assistance, and what that information might entail. The applicant was not present during the violence which led to his friend’s death, and did not return to India until several months later. He has never been harmed or involved in any personalised violence against him.

3. There is no indication he received any personal threats around that time in late 2015 or early 2016. He relies upon unverified third party information from unnamed friends who inform him of other telephone threats since then, and who generally advise him to avoid returning to India. Details of such reported threats are not revealed, and he provides no support from those friends or details of the messages he claims to have received. He gave different accounts of those threats, including if they were reported, and the number of them. The Tribunal gives his account of those telephone threats no weight, either as to the number of threats he says were received, or what they may have contained and when they occurred. The Tribunal finds in fact there is no evidence to support this claim and does not accept the applicant’s account, which appeared exaggerated and implausible to the extent that threats might continue given the lapse of time since the event in August 2015 involving the death of his friend, and the lack of independent and objective detail of any threats received by him at all since 2016.

4. The applicant has not provided any further and updated information since lodging his application for review with the Tribunal and, as already noted, has declined the Tribunal’s invitation to present any further information such as witness statements or supporting documents from the period so as to corroborate his concerns or to update the current situation and whether those concerns might still be relevant. The applicant’s concerns appear to the Tribunal to be more speculative than based on actual information. The

applicant does not provide information or media reports pointing to alternative views to those of DFAT on available country information.

1. The applicant has chosen to rely for his claim to face persecution on account of his political opinions primarily on his oral evidence and his personal views. He states he has not been involved himself in any acts of political violence in demonstrations or protests. He states he only participated in peaceful demonstrations himself, “many times”. The Tribunal gives no weight to his concern that he might not be able to avoid violence or future confrontation on his return anywhere in India and finds this fear is not well-founded. He himself noted he has always managed to avoid any violence and is no longer a party member, and does not wish to participate in political activity. The Tribunal is satisfied that he will have a very good opportunity to avoid future violence and confrontation, which he managed to do over a considerable number of years, even when he participated as a volunteer. He may have a subjective fear which lingers from his recollection after returning in 2016, and helping the deceased’s family, following which he received two warning messages by telephone. But he has received no personal threats since 2016, and the Tribunal has not accepted the vague evidence about reported telephone calls. The available objective facts do not support his on- going subjective fear that he faces a real chance of persecution and serious harm in the future.

2. The Tribunal is satisfied that there is insufficient information before it to determine that the applicant faces a real chance of persecution, and that the applicant’s fears are more subjective than actual based on any factual experience in relation to his claimed political activity in the period 2015/2016. There is no evidence that he would be targeted for any activity prior to the death of his friend [in] August 2015, when he was not present. There is no evidence that there is any continuing interest in the applicant from any perpetrator, in particular from anyone in the opposing BJP-RSS party. There is only a general assertion that he might be targeted because he is in opposition to the political views of that party and someone knows him. It seems he is in no worse or better circumstance than any other former helper of the CPI-M, or any opponent of the BJP-RSS in India, of whom country information notes there are many millions, and of whom some were his student colleagues and who he confirms have not been harmed. The Tribunal gives very little weight to any real chance of persecution for holding an opposing political point of view or that the applicant’s concerns are anything more than speculative and are not well-founded.

3. The Tribunal prefers the country information which highlights the fact that generally the Indian population is large and diverse in its political opinions, where the majority of the population are not at risk of harm because of those diverse political opinions. The Tribunal is satisfied on the evidence and finds that the applicant no longer associates with any political activity and is not a member of any political group or party and does not intend to conduct any political activity if returned to India.

4. The Tribunal finds that the applicant lived safely in Chennai, as recently as 2023, without being threatened or approached because of his political history. The Tribunal does not accept and rejects the applicant’s claim entirely that he faces a real chance of persecution on account of his political opinions were he to return to India and because of the claimed events involving his friend in 2015.

5. Overall, apart from its credibility concerns, the Tribunal finds cumulatively that there is not enough information or particulars submitted and relied upon regarding the applicant’s claims for protection. The oral evidence provided both to the Department interviewer and the Tribunal is vague and generalised and not sufficiently detailed to enable the Tribunal to be satisfied that the applicant faces a real chance of persecution anywhere in India, or that there is a real risk that he will suffer significant harm upon his return.

Summary

1. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

2. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa). The Tribunal finds that the applicant could live anywhere he chose in India, as he has done previously when living in neighbouring Chennai, or elsewhere in the country, and without fear of a real chance of persecution and serious harm because of any political opinion.

3. 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).

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

Alan McMurran Member

ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)    that is not inconsistent with Article 7 of the Covenant; or

(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)    that is not inconsistent with Article 7 of the Covenant; or

(b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)    for the purpose of obtaining from the person or from a third person information or a confession; or

(b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)    for the purpose of intimidating or coercing the person or a third person; or

(d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country, in relation to a non-citizen, means:

(a)    a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H  Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a

well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)   conceal an innate or immutable characteristic of the person; or

(c)    without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)   the persecution must involve serious harm to the person; and

(c)    the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of

serious harm for the purposes of that paragraph:

(a)    a threat to the person’s life or liberty;

(b)   significant physical harassment of the person;

(c)    significant physical ill-treatment of the person;

(d)   significant economic hardship that threatens the person’s capacity to subsist;

(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K  Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well-founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)   disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)   any other member or former member (whether alive or dead) of the family has ever experienced; where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L  Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)    a characteristic is shared by each member of the group; and

(b)   the person shares, or is perceived as sharing, the characteristic; and

(c)    any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)   the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)    protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)    the person can access the protection; and

(b)   the protection is durable; and

(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)   holds a protection visa of the same class as that applied for by the applicant. (2A) A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)   the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)   the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)   the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

…