1901518 (Refugee)

1901518 (Refugee) [2024] AATA 4315 (19 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1901518
COUNTRY OF REFERENCE:                   India
MEMBER:Lilly Mojsin
DATE:19 September 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 September 2024 at 12:25 pm
CATCHWORDS
REFUGEE – Protection Visa – India – imputed political opinion – a member of Jat Andolan – applicant did not suffer any harm during the 2016 protests – imputed or former student supporter of reservation quotas for Jats – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 56, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 January 2019 to refuse to grant the applicant a protection visa [PV] under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of India, arrived in Australia as the holder of a student 573 visa valid until 15 September 2016. This visa was cancelled in February 2015. He applied for a PV on 5 July 2016.
The applicant was invited to attend an interview with the delegate. He initially requested the interview be rescheduled and the delegate granted his request. The applicant did not attend the rescheduled interview.
The delegate was not satisfied the applicant would suffer serious or significant harm on return to India within a reasonably foreseeable future.
The applicant appealed that decision to this Tribunal attaching a copy of the Department decision to his application for review.
On 19 April 2024 the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 17 May 2024. The invitation stated that if he did not attend the hearing, the Tribunal may make a decision on the application without further notice. The Tribunal also sent him SMS reminders about the hearing but the applicant did not appear.
On 12 June 2024 the Tribunal dismissed the application. On 26 June 2024 the applicant sought to have the application reinstated and on 5 July 2024 the Tribunal reinstated the application and notified the applicant.
On 8 July 2024 the Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 30 July 2024, by Teams Video. The invitation stated that if he did not attend the hearing, the Tribunal may make a decision on the application without further notice. On 15 July 2024 the applicant responded to the Tribunal invitation, advising the Tribunal that he would attend the scheduled hearing and that he had no further documents to provide to the Tribunal.
The Tribunal sent the applicant SMS reminders about the hearing. On 30 July 2024 at 11.00 am the applicant did not attend the hearing. The applicant attended the video hearing at about 11:22 am. The applicant indicated he was having difficulty with the video and then dropped out. The applicant did not re-join the hearing. The applicant was contacted by phone, twice at around 11:45 am using MS teams, and there was no response. The Tribunal then attempted to contact the applicant again at 11:48 am and 11:52 am using the telephone line and an automated response played both times stating that the current phone number has "incoming call restrictions" and did not connect the call. The Tribunal adjourned the hearing.
On 21 August 2024 the Tribunal wrote to the applicant advising that the adjourned hearing was to be held on 11 September 2024 at 9.00 am at the Tribunal premises Sydney. The applicant was advised that the Tribunal will only change this hearing date for good reason and the applicant was requested to contact the Tribunal immediately if he is unable to attend the hearing on this date.
On 21 August 2024 the applicant wrote to the Tribunal stating:
I have nothing much to say about my case, I have no concret [sic] evidence[sic] to prove case, but I would like say , I spend in australia almost 10 years , of my life ,
Past 9 year, I have spend without any study and working rights . I have no health access , like private insurance . Last 2-3 years I was facing health issues like skin [problem] [sic] I am also facing dental issues , last 1 month have got anther [sic] problem in my left ear , there is continuous ring sound in ear , that is too annoying I can't sleep , I have visited one of the GP , She said there is infection ,gave me antibiotic tablet , but that didn't work , at the same time she gave me reference letter to see DNT specialist , but I do not have enough money , beacause [sic] of financial crisis I had to sleep in the car , I have no proper accomodation [sic], I have few friends some time I leave sequence few days with my friends next few days with my anther [sic] , That makes my life miserable , My lord I know your time is very precious , I feel bad ,due to me your time is wasting , you may take decision , I will welcome your decision
On 21 August 2024 the Tribunal responded to the applicant’s email and requested that the applicant confirm that he requests the Tribunal to make a decision on the papers without attending a further hearing.
On 21 August 2024 the applicant responded to the Tribunal and stated:
I have no problem to attend hearing , I will attend hearing on 11sep [sic] 2024,
The Tribunal also sent the applicant SMS reminders on 4 September 2024 and 10 September 2024 about the hearing. Delivery of SMS hearing reminders failed.
On 11 September 2024, the applicant sent an email to the Tribunal stating:
I want to inform you , I have ear pain this night , It is hard to travel this pain , please try to give me another date,
No medical report was provided by the applicant. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing.
On 11 September 2024 the Tribunal wrote to the applicant advising that the adjourned hearing was to be held on 18 September 2024 at 2.00 pm at the Tribunal premises Sydney. The applicant was advised that the Tribunal will only change this hearing date for good reason and the applicant was requested to contact the Tribunal immediately if he is unable to attend the hearing on this date. The applicant was advised that he would not be granted a further adjournment without a medical report.
The applicant attended a Tribunal hearing on 18 September 2024.
The applicant provided the following documents to the Tribunal;
·[Medical] Tax Invoice
·Copy ID
·Medical Certificate that the applicant consulted [a] Medical [Practice]
·Pathology Test Referral
CRITERIA FOR A PROTECTION VISA
See annexure A
CONSIDERATION OF CLAIMS AND EVIDENCE
In his written claims the applicant stated:
- Indian government agents will kill him if he returns to India.
- He was forced to leave his studies because of his student activities as a member of Jat Andolan (Jat Reservation Movement).
- The applicant claims the situation in his home state of Haryana has worsened since the protests with killing related to the protests, burning of properties, looting of business and that it is unsafe to travel on the roads.
- He studied [from] 2009 to 2012
- He left his studies because of his student activities as a member Jat Andolan,
- In the last few months the situation in Haryana has become bad, there has been killings.
- His family is continually being harassed and questioned by the police. They are after his family who are in hiding. He would be killed if he went back to his country.
At the Tribunal the applicant gave evidence that he arrived in Australia 2014 and has remained onshore to the present. He is from Haryana and completed a [degree]. He worked part-time [on] his family farm until he came to Australia to study. He commenced studying a [degree] but did not finish that.
The applicant obtained a passport in 2012 and on receipt of his student visa arrived in Australia in 2014. The applicant commenced study for a [degree]. He did not complete that course but stated that he completed a Diploma [in] 2014 -2015. The Department cancelled the student visa in February 2015. He did not appeal that decision to the court. He has not worked since February 2015. Sometimes his family sent him financial help and he lives with friends who are supporting him. He has no work rights.
In Australia he has worked in a [store] and he used to work in [a workplace]. He is single and he does not have children. His parents, brothers and sisters live in India.
I referred to his PV application made in 2016 that he was in Australia when the primary protests activities by the Jats in the 2016 riots and put that he could not have come to the notice of law enforcement officials.
I put to the applicant that there is no evidence to indicate that as a Jat asking for reservation quotas he has been targeted by non-Jats or the Indian authorities.
I asked why he feared returning to India and he said there was a small protest and he was in the protest. I put to him that the agitation he referred to was in 2016 and he was not there, he agreed. I put that when he left India in 2014 there was no agitation, there were no protests and he was not arrested and charged with anything and he agreed he came to Australia to study.
I put to the applicant that there is no agitation in India now by the Jats. He said he fears returning to India as they took him and 2 people somewhere else and kept him for 2 or 3 days in 2012. I put that he did not advise the Department. He said one of the friends filled out his forms and what he wrote is not necessarily correct. I put to the applicant that he has had a lot of time to correct those claims and he said that he did not think that it was a necessity. I also put to the applicant that he had read the delegate’s decision, so that he was aware of the contents of his application.
I put to the applicant that he did not apply for a Protection Visa [PV] until his student visa was cancelled and that this visa was the only one he could have applied for to remain in Australia. I put that nothing happened to him in 2014 so that he had to flee India and that he left India with a passport in his own name in order to come to Australia to study. He said that he did not appeal the cancellation. He agreed he applied for a PV visa as he could not apply for anything else.
I discussed independent evidence regarding the 12 February 2016, violence and civil disobedience that disrupted the Haryana state for a period of 10 days and the Haryana government’s response to the protests by introducing a bill in the Legislative assembly to provide the Jat community with OBC status.
I asked what he feared and he said there is more leaders, they still have eyes on him as he was involved in protests. I put that he has not been in Haryana for 10 years and there no protests there now. Jats are a wealthy group in the state, some Jats are members of parliament and police.
The applicant stated that he fears going back because there are small political workers and he will have a problem with them. I put he can lodge a complaint with the police and he said that they will not listen to him. I put to him that he has not provided any reason why he will not have the protection of the authorities, he can lodge an FIR and if unhappy with police he can lodge a complaint.
The applicant repeated that in 2012 he was in a protest and he was taken for 3 days. He was release and then nothing happened to him until he came to Australia.
I put to the applicant that he is able to return to India and he can live with his parents and he can work again on the farm. He agreed.
The applicant then stated that his family is continually being harassed and questioned by the police. They are after his family who are in hiding. He would be killed if he went back to his country. He said that his family moved, they sold their farm and now rent a farm. I put that he can go and live on the new farm.
I put to the applicant that he stated in his PV that the police are asking for him. He said that he finished university in 2012 and then he commenced his [degree] there but could not finish as people were giving him a hard time. I put that he had stated previously nothing happened to him from 2012 until departure. He said he was part of a protest in 2012. I put there was no reason for police harassing and questioning his parents. He said if they cannot find the member they give the family a hard time.
REASONS AND FINDINGS
On the basis of his Indian passport, I accept that the applicant is a national of India and not a national or citizen of any other country or has a right to enter and reside in any country other than India. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that India is the applicant’s “receiving country” for the purposes of s.36(2)(aa).
When assessing credibility, the Tribunal is mindful of the difficulties often faced by asylum seekers. The process of seeking protection and the giving of evidence can be stressful and consequently asylum seekers may have difficulty providing their evidence in a concise and contextual manner. Sometimes timelines can be inconsistent as a result. A person should not be required to provide an unrealistic degree of precision and detail in statements and an experience of trauma may affect a person's ability to recall specific events and details. The benefit of the doubt should be given to asylum seekers who are generally credible but who are for instance, unable to otherwise substantiate all of their claims.
The applicant is a Hindu Jat from Haryana. I also accept that he was a member of Jat Andolan as a student.
The Jat people are one of the most prosperous groups in India on a per-capita basis (Punjab, Haryana, and Gujarat are the wealthiest of Indian states)[1]. Jats have dominated as the political class in Haryana and Punjab. A number of Jat people belonging to the political classes have produced many political leaders, including the 6th Prime Minister of India, Prime Minister Chaudhary Charan Singh.
[1] Jat Kharral (Hindu traditions) in India people group profile | Joshua Project
The Jats view themselves as lagging behind other groups within Indian society. To overcome their economic disadvantages due to their traditional reliance on agriculture, Jats want to be considered as Other Backward Classes [OBC]. Having OBC status would include Jats in caste quotas for jobs and other education opportunities that have been available to lower castes since 1991[2].
[2] 'Beyond reservations: Haryana's Jats believe the ground is slipping beneath their feet', Scroll.in, 12 September 2015
From 2009, Jats have mounted several agitations asking for a share in OBC quotas in government jobs and educational institutions. In March 2014, three days before the announcement of the national elections, the United Progressive Alliance government approved the inclusion of Jats in the Central OBC list for nine states in North India, despite the National Commission for Backward Classes recommending against it. One year later, in March 2015, the Supreme Court struck down the decision, holding that the commission's advice was binding and the government had no valid reason to go against it.
Since the Supreme Court’s Decision Jats have sought to use civil disturbances to encourage the state government in Haryana where they make up 27% of the voters to address their demands. On the 12 February 2016, violence and civil disobedience disrupted the state for a period of 10 days. The protestor’s aims were to be included in the OBC category that would make them eligible for quotas in government jobs and education. The protests did initially begin as peaceful though as they become violent with counter protests from non-Jat groups resulting in street clashes. The 10 days of rioting resulted in 15 deaths, millions in dollars’ worth of damage, disruption of trains and other public utilities, with the central government having to send in army and paramilitary personal to quell the violence. The Haryana government responded to the protests by agreeing ito introduce a bill in the Legislative assembly to provide the Jat community with OBC status. A panel was also set up to examine demands for reservation in central government jobs. As of June 2018 the Jat community in Haryana does not believe the BJP ruled Haryana state government has implemented the quota and is considering further protests. The Jat community is also protesting the Haryana state government refusal to withdraw all cases relating to violence and arson associated with the February 2016 agitation.
The applicant was in Australia at the time of the protests and riots in 2016. Whilst the applicant claims that he was forced to leave his studies because of his student activities as a member of Jat Andolan (Jat Reservation Movement) by his own evidence given at the Tribunal hearing the applicant concurred that nothing happened to him from 2012 until he left India, obtaining a student visa to come to Australia in 2014.
Whilst the applicant claims in his PV application that he was forced to leave his studies because of his student activities as a member of the Jat Andolan, and he claimed at the Tribunal hearing that he was detained with 2 others for 3 days, as the applicant did not make this claim to the Department I do not accept that he was detained for 3 days. When the omission of his detention was put to him he stated that his PV application was written by a friend who omitted the information. I put to the applicant that he read the delegate’s decision, he had ample opportunity to correct those claims but he did not do so. I am of the view he has created the claim of being detained 3 days in order to obtain the visa sought. As he was not detained or harmed by anyone in 2012 and he has told the Tribunal that nothing happened to him until he left India in 2014, I do not accept his claim that he was forced to leave his studies because of his student activities as a member of Jat Andolan.
As nothing happened to the applicant from 2012 until 2014 when he obtained his student visa and left India without any problems, with a passport issued in his own name, and as I do not accept that he was detained by anyone in 2012, I do not accept that his parents are continually being harassed and questioned by the police, who are after his family or that they are in hiding. Further when put that there was no reason for police harassing and questioning his parents, he said if they cannot find the member they give the family a hard time. As I do not accept that anything happened to the applicant in India I do not accept that the police are looking for him and as he is not in India are giving his family a hard time.
When put to the applicant that he applied for a PV because his student visa was cancelled, he had not appealed and therefore he no other visas that he could apply for the applicant concurred.
I have considered the applicant’s claims singularly and cumulatively. I am satisfied that the applicant did not suffer serious harm in India when he left India in 2014 to come to Australia as the holder of a student visa.
I am required to assess whether the applicant will suffer serious harm on his return to India, within the reasonably foreseeable future for reasons of his race, religion, nationality, membership of a particular social group or political opinion.

I accept that the applicant is a Hindu Jat from Haryana. The applicant lodged his claim for a PV in July 2016. Therefore the situation in Haryana of lootings, burnings and killing, and lack of road safety that he described in Haryana that had occurred during and after the February 2016 protests occurred when he was in Australia. I find that the applicant did not suffer any harm during the 2016 protests and he was not of any interest to the Indian authorities regarding the 2016 protests and riots.
The independent evidence indicates that in February 2016, the Haryana Chief Minister Manohar Lal Khattar set up a panel to investigate protestor demands. Victims of protests violence were also promised compensation in the immediate aftermath[3]. On 9 January 2019, the Indian Lok Sabah passed a bill to provide a ten percent reservation to general category poor. The major castes to benefit from the proposed law are Brahims, Rajputs, Jats, Marathas, Bhumihars, several trading castes, Kapus and Kammas among other upper castes.[4] With both state and federal legislatures attempting to address the Jat protestors demands, I am not satisfied there is a real chance the applicant would be targeted for being a Jat or a former member of Jat Andolan, or an implied Jat Andolan activist or am implied supporter of Jat reservation quotas, prior to his departure from India in 2014. The applicant has made no claims of being involved in any political activities since he has lived in Australia.
[3] 'Angry victims heckle Haryana CM after Jat riots kill 19 ', Reuters, 23 February 2016
[4] Parliament passes Bill to provide 10% quota for poor - The Hindu
The applicant claims that Indian government agents will kill him if he returns to India. The applicant was in Australia when the protest activities by the Jats occurred in 2016. There were riots but he could not have come to the notice of law enforcement officials. Whilst I accept that there were Jat protests in 2012[5] and that a number of Jats were arrested and released after a few days, I have found that the applicant was not one of those arrested or detained in 2012.
[5] Hisar: Over 100 jat protesters released - India Today
As for his claim that more leaders still have eyes on him as he was involved in protests or that there are small political workers and he will have a problem with them I do not accept he was involved in protests in 2012 and he was not attacked or harmed by anyone when he lived in Haryana, I reject this claim.
I find that neither the government nor any non-state actors seek to harm the applicant. I find that there is not a real chance that the applicant will suffer serious harm in India, within a reasonably foreseeable future from the government or any non-state actor.
There is no evidence before me to indicate that Jat Andolan members or former student supporters of reservation quotas for Jats or their families are targeted by non-Jats or by Indian authorities or that they are killed by the Indian authorities. I am of the view that were it the situation it would be known to independent sources such as US State Department, DFAT and Amnesty. Therefore I find that there is not a real chance that the applicant will suffer serious harm in India, within a reasonably foreseeable future for being an imputed or former Jat Andolan, or imputed or former student supporter of reservation quotas for Jats or for his imputed political opinion.
There is no evidence before me to suggest that there is any further unrest in Haryana since those 2016 protests despite OBC status not being given to Jats in Haryana. I am of the view were it the situation it would be known to sources such as DFAT, US State Department Reports and Amnesty.
The applicant does not claim to be a party worker, political leader or a person who has expressed a view critical of the government. He does not claim to have had any political involvement or profile in Australia. I find that there is not a real chance that the applicant will suffer serious harm in India, within a reasonably foreseeable future for his political opinion or implied political opinion.
I have considered the applicant’s claims singularly and cumulatively. I find that the applicant does not have a real chance that, if he returned to India he would suffer persecution for one or more of the reasons mentioned in paragraph 5J(1)(a). I find that the applicant does not have a well-founded fear of persecution for these reasons.
Accordingly I find the applicant does not satisfy s.36(2)(a) of the Act.
I am required to assess whether there is a real risk the applicant will suffer significant harm on his return to India within a reasonably foreseeable future.
The applicant is an ethnic Indian, a Hindu, a Jat from Haryana.
Capital punishment[6] in India is a legal penalty for some crimes under the country's main substantive penal legislation, the Indian Penal Code, as well as other laws. The applicant does not claim to have committed any crimes in India. I therefore am not satisfied there is a real risk that the death penalty will be carried out on him, within the reasonably foreseeable future.
[6] DFAT Country Report India 10 December 2020
The applicant has not claimed to have committed any criminal offences that would indicate there is a real risk that he would be imprisoned, tortured, or subject to other ill-treatment.
The applicant’s family live on a farm and work on that farm. The applicant worked on a family farm prior to coming to Australia. He agreed that he is able to live and work with his family on their farm on his return.
I find that there not a real risk that the applicant will suffer torture or cruel or inhuman or degrading treatment or punishment within a reasonably foreseeable future on his return to India.
Having considered all of the applicants’ claims, individually and cumulatively, I am not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to India now or in the reasonably foreseeable future.
Accordingly, I find that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.
CONCLUSION
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).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.
Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Lilly Mojsin
Member

See Annexure A
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.
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 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).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 4315

19 September 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction