1901552 (Refugee)

1901552 (Refugee) [2024] AATA 4002 (12 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1901552

COUNTRY OF REFERENCE: India
MEMBER:Lilly Mojsin
DATE:12 September 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 12 September 2024 at 12:07pm
CATCHWORDS
REFUGEE – protection visa – India – political opinion – Congress Party supporter – refusal to join BJP – Patidar movement – attack on home – fear of killing – impunity for violence against opposition – physical assault – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 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 dependants.
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 8 January 2019 to refuse to grant the applicants protection visas [PV] under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of India, applied for the visas on 30 October 2017. The delegate refused to grant the visas on the basis that the delegate was not satisfied that the applicants would suffer serious or significant harm on their return to India within a reasonably foreseeable future.
The applicants appealed that decision, attaching a copy of the Department decision to their review application.
The applicants are husband [applicant], his wife [second applicant], and their child [third applicant].
The applicants appeared before the Tribunal on 17 May 2024 and 26 July 2024 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages.
CRITERIA FOR A PROTECTION VISA
See annexure A
CONSIDERATION OF CLAIMS AND EVIDENCE
Only the applicant made PV claims.
In his PV application the applicant claims that
·He arrived in Australia [in] September 2017. He is a farmer. He had [number] years of education in India. He was student leader of NSUI, student wing of Congress party while studying his [Qualification 1] degree. The main opposition party was ABVP (Akhil Bharatiya Vidyarthi Parisad) student wing of BJP [Bharatiya Janata Party]. He was actively involved in politics after he left university and donated money for Congress party candidates during the elections and campaigned for the Congress party. The local BJP leader asked him to join with them but he refused to join.
·Since the beginning of 2015, youths belonging to Gujarat’s economically and politically influential Patidar or Patel community have been agitating for OBC [Other Backward Class] status that would give them quotas in college admission and government jobs. The Patidar Anamat Andolan Samiti (PAAS) held large rally in Gandhinagar. When their leader, 21 year old Hardik Patel, a Mehsana businessman asked the [crowd] for donation and support, the applicant joined with them and supported them financially.
·The BJP members looted and ransacked his house and threatened to kill him because he supported the movements. He was threatened with death if he continued to campaign against BJP. He was informed that further attacks on him and his property was continuing unabated. The continued violence and attacks on them prompted him to leave India. He could not rely on state protection because the authorities were hesitating to take any action against them. The BJP is taking advantage of the situation and asked its members to attack him. He worked very hard for Congress candidates in the last election. The election will be held at the end of this year and they don’t want him to stay alive. They wanted to kill him and they asked the local gang to take advantage of the situation and kill him. He moved to his relative’s house until he organised a visa to leave India. The BJP members are taking advantage of the current situation and will try kill him before the election.
·The current Indian Governments lack of political will often give their tacit approval for such fringe elements to go on a rampage to create and instil fear among those who stand for their democratic rights. There are numerous examples which can be found online in the media that the BJP government did, and continues to, obstruct justice and prevent accountability for the perpetrators of violence against opposition and those who stand against the government.
·Under the current BJP Government in India, there is an assault on the secular and free Indian constitution. Any dissent against this government is not tolerated and are taken to task to teach them a lesson. The government does not want to just crush dissent but it wants to crush thinking. One can easily become anti-national in India currently, if one simply even questions any policy by the government. It’s the tyranny of the highest order.
·there is a serious threat to him and his family’s life and well-being and the current government lacks will in tackling this elements and often are in connivance, aiding these elements. Even the Supreme Court of India has failed to live up to its role as custodian of constitutional rights and they are also being pressured to compromise. Every independent institution of repute had their independence scuttled some way or other these days.
·He asked family members to help but they refused.
At the Tribunal hearing the applicant said that he was born on [date]. He finished school in [specified year], he went to university and studied a [Qualification 1] in Gujarat in [year]. After university he worked at home, in farming, [and specified duties]. There were no job opportunity in [his chosen profession]. He came to Australia in 2017, his brother lives here. Since living in Australia he has been working on a farm and a [factory] for the past 3 or 4 years. His wife does not work. He has one child at home and has a child born in Australia that has not been added to this application.
There was a meeting against the government and they demanded they should get jobs. He joined Patidar community. There were riots in Gujarat but he was not a leader. I asked the applicant a number of times what he organised and he could not explain what he did. He spoke in general terms about groups in the community and repeated that he joined this process and participated. “There were riots in all the cities and villages and there was a ground swell and they went against the government and BJP Congress”.
People of other castes attacked the Patels. The applicant said that he went to meetings with Hardik Patel who he met personally in their village when he came to the village and he gave a speech that the applicant attended. They would assemble on this particular date and tell the government. He attended a large demonstration, many people from his village also attended. It was in Ahmedabad [at Location 1]. There were about 500 000-600 000 Patels at the demonstration. He was not arrested by the police or charged with any offence.
The applicant claimed that the police would send anti-social elements to the village after the demonstration that occurred 10 years ago. He has depression and they were hitting them so he cannot remember the date. I again asked the applicant to explain his circumstances.
I put to the applicant that he went to a demonstration in a year he cannot remember, this was the only demonstration that he attended in Ahmedabad. He did not attend any other demonstration. I asked him to explain about the police sending bad elements to the village and he said that happened after the Patidar movement. I asked how he knew that the police sent the bad elements and he said the government is against Patidars and it was the BJP government.
I asked about what happened in the village and who came in to attack and assault them and he said that they killed one or two boys in the next village. There were communal riots at the time. In the town next to them 2 boys were killed in a communal riots. It was government instigated attacks.
I asked what happened to him and he said that once or twice there were attacks on him, in 2015 or 2016. Two or three people came on a bike and attacked him, assaulted him and then threatened him and they left. They did not come back again but they kept on threatening them telling them to stop the movement. They were threatening the Patels and trying to scare them. I asked him to confirm if there were other people in the village who were attacked and threatened as well and he said they were, it was happening to all the people participating in this village. I asked if his village was mainly Patidar and he said that there are about 16 or 17 castes in this village of 6-7000 inhabitants. Asked how the attackers knew they were Patels he said they knew, on meeting they would send other people into the village, and the situation became worse.
I asked who was living on the farm now and he said he does not know. He has separated from his parents, as they told him not to participate. He left his parents and they are estranged, he does not keep in touch with his family. They were asking him why he was involved in all these fights. I put to the applicant that he has a brother in Australia and he said he has no contact with him either as all these things happened and his parents boycotted him.
I put to him that he was not a political party leader, he claims to have attended one demonstration and was twice attacked in village. He said he was working under the leader, assembling people and issuing pamphlets and organising a rally, he was providing food for the people coming there. I asked what position he had and he said he was in a town wise group, he was with the main leader. I put that these organising activities are usually done by the leader. He said they were all working, he was helping the leaders organise all these activities.
I put that the election was held at the end of 2017 and I asked when he stopped working at all these activities, he said that the attacks were less and the attacks stopped. I asked again what happened to him and he said that 19 sons of Patidars died and he got scared that could happen. He said when the meeting took place there would be stabbing of people and police would harass some people.
He does not remember when he was attacked. His daughter was [age range] when he was attacked. I put to him therefore he would have been attacked at end of 2016, when he came back from Australia [in] April 2016 so the demonstration and attacks occurred after he returned from Australia. He said he was then attacked 2 or 3 times. He was not hospitalised for any physical attacks, he was threatened. He then decided to go back to Australia. There were 2-3000 Patels in his village. A lot have gone away, some to America and different places. There are 4-500 people left there now. I asked how he knows this as he stated that he does not keep in touch with people in his village or his parents. He said it is on social media, people are posting. [Name] is the name of his village.
I put that in 2017 there was an election. I put to the applicant that he was not disadvantaged as he obtained a university degree. He said that he was agitating for OBC status that would give them quotas in college admission and government jobs. I put that he got a university degree. He said there are no job opportunities. His degree has no value.
I put that he claims that he attended one demonstration, was attacked 2 or 3 times and then he came to Australia. He said he was scared. I put that he was not seriously harmed. There was no reason for the BJP to especially kill him, he was not a leader, he was not arrested. He said the police attacked them and they ran away.
I put to the applicant there were other people harmed at the time and there was no reason they wanted to especially kill him. He responded the police were arresting the leaders in the rally. I put that he was not a leader and he was not arrested. He said that the police attacked them at the demonstration and he ran away. He was not targeted by anyone. I put he was of no importance in the Patidar movement and he was not targeted specifically by anyone.
I put that during the 2017 elections in Gujarat he was already in Australia. He referred to disputes and riots and I put again he was in Australia in September and the election was in December 2017. He agreed. I put he did not work for any party before the election.
I put to the applicant that the leaders changed their allegiance during that election. He said that small people like him became trapped. I put to him he was not there. I put that in 2017 the Patidars aligned with BJP. The Gujarat Legislative Assembly elections were held December 2017. Several agitation leaders joined politics and contested 2022 Gujarat legislative assembly election On 12 March 2019, Hardik Patel joined the INC [Indian National Congress or Congress] but he also later switched to BJP in June 2022. He said Hardik made money and he did fraud against Patidars.
I asked why he would take part in Patidar movement when it is virtually dissolved. He said yes it has dissolved and there is no point in participating.
I asked the applicant what he now fears about returning to India and he said that “they will attack us as they know us”. He said that Ady has become the leader and anti-social elements have increased. I put if he was not a leader of a group or organisation, he was attacked as were other people in his village prior to 2017 elections. He said attacks only occurred on the people participating. I put that the current situation is that the Patidar movement is not of any significance and there are Patels in BJP and also in Congress Party. I put he has not been involved in any political actions in Australia, he agreed. I put there is no trouble at present. I asked why anyone would harm him and he said that he does not know what will happen. I asked if there was anything else he feared and he said he won’t know until he goes there. He said nobody watches him if he has any enemy they will attack him.
I put to the applicant that there is now reservation for OBC in Gujarati government. I discussed independent evidence with the applicant regarding the Indian constitution that provides freedom of expression etc and that leaders of opposition parties do not face discrimination, there is a risk of violence during elections and there is a risk for those taking part in elections but the last election in Gujarat was peaceful and not characterised by large scale violence. DFAT understands Patidar movement is not active and overall participants face low risk of violence. Personal expression is open and free. Whilst courts police and criminal processes are slow, the courts and judges often criticise police investigations. The applicant said the person who is honest would be trapped and the dishonest will be free. He said that you cannot do anything against the government. If you are caught by police and put in prison you will never come out. I put independent evidence regarding the police, the judiciary, the court system and there is a process if arrested and imprisoned. He agreed and said the main thing is corruption.
There is no certainty as anti-social elements have increased and if something happens to him his life will be ruined, he fears being murdered at any time or killed in a road accident. He feels safe in Australia and does not know what will happen in India.
At the 2^nd Tribunal hearing held on 26 July 2024 I asked the applicant when as claimed in his PV that the BJP members looted and ransacked his house and threatened to kill him and if this occurred after the rally and for how long after the rally. He said about 6 to 7 months after the rally. I asked how long after the rally that the violence continued and attacks on them and he said that it continued for 7 months.
I asked him how long after the rally did 2 or 3 people came on a bike and attack him, assault him and then threatened him and then left. He said it happened after the rally about 6 to 7 months after the rally.
I asked him when he was working under the leader, assembling people and issuing pamphlets and organising a rally, providing food for the people coming there. He said that it was after the rally for 6 to 7 months the attacks occurred and they killed quite a few children. I asked again if this was in his village. He said it was. I put to the applicant that there was no independent evidence to suggest that anything had happened in his village and he appeared to be describing things that happened in other parts of Gujarat. He agree there is no record of the unrest in village. I explained that if it had been situation, the independent reports would have mentioned this. He said that his memory is not good. I put to him that he has not provided any medical reports to suggest he has any memory problems.
I further put to the applicant that the rally he had described at the previous hearing was held in [Location 1 in] Ahmedabad was [in] August 2015 and it was not held in Gandhinagar as stated in his PV. As for his claimed incidents of harm that all occurred 6-7 months after the rally, he said that it made him scared and afraid.
The applicant’s passport shows that he departed India [in] March 2016 and returned to India [in] April 2016. I put that this suggests he had no fears of returning to India. I put that he told the Tribunal at the previous hearing that the rally was after he returned from his trip to Australia. He said his brother told him when he was in Australia to go back to India.
I asked when his parents came to Australia and he said that his father died in India in April. He said his family was not very helpful so he came back to Australia. I asked if he read the delegate’s decision about his claims that indicated his parents were in Australia. He has not read the decision made. His friend told him about father’s death.
I put that he only told the Tribunal about being attacked by people on bikes and not about the BJP. I put to the applicant that he had told the Department at interview, as recorded by the delegate in his decision attached to the application for review, that his house was looted and ransacked in middle of 2017 by BJP prior to coming to Australia and he moved to a relative’s house in [Town 1], Ahmedabad, leaving his wife and child at his in-laws house until he organised his visa to come to Australia with his family. He did not inform the Tribunal at the first hearing. He responded that he did tell the Department he had a problem with his family and looting. He did not have problem with his in-laws.
I put to the applicant that he remained in India after return from his first trip and his 2^nd departure to Australia. I suggested he did not fear harm. He said they continued to harass them and they killed children in other villages.
I put to the applicant that Hardik Patel was now a member of BJP and there is no Patidar movement. He said that it can erupt again and one never knows they go around harassing people. I asked who went around harassing people and he said he has been here for 6-7 years and he is not aware of the current situation.
Independent Evidence
By way of background, in 1981, the Government of Gujarat, introduced the reservation for socially and economically backward castes (SEBC) and the Other Backward Caste (OBC) status to invoke affirmative action which provides reserved quotas in education and government jobs. In Gujarat, 27% of the seats in government and education are reserved for OBC, 7.5% for Scheduled Castes (SC) and 15% for Scheduled Tribes (ST) for a total of 49.5% of all seats.

According to DFAT[1] OBC is the Official term used by the Government of India to classify castes that are educationally or socially disadvantaged under the constitution, and do not fall under SC or ST.
3.149 Reservation or quota policies have been unpopular with upper castes and dominant groups, including the Jats, Marathas and Patels or Patidars. …
…………
In Gujarat, the Patels, a dominant caste, have sought the removal of quotas for SCs/STs, declaring them unfair and unmeritorious. The Patels have sought OBC status and have engaged in protests (at times violent) over the issue. To date, none of these groups has been afforded OBC status.
[1] DFAT Country Report India 10 December 2020
Patidars represents 12.3% of the population of Gujarat. Since the beginning of July[2] 2015, youth of the Patidar or Patel community have, with the support of one Patel organisation called Sardar Patel Sevadal, started agitating demanding OBC status to get reservation status in government jobs and higher education.
[2]
Starting in July 2015, the people of India's Patidar community, seeking Other Backward Class (OBC) status, held public demonstrations across the Indian state of Gujarat. The government announced offers of scholarships and subsidies to general category students on 24 September 2015 and a 10% quota of spaces reserved for economically backward classes in April 2016. The 10% reservation was quashed by the Gujarat High Court in August 2016. The agitation lingered on for two more years. In January 2019, the Parliament of India amended the constitution granting maximum 10% reservation to the Economically Weaker Sections of the society. The amendment was challenged in the Supreme Court where its validity was upheld in November 2022[3].
[3] Patidar reservation agitation - Wikipedia
DFAT[4] reports that India’s constitution provides for freedom of speech and expression, freedom of assembly, and the right to form associations (Articles 19-22). The Government of India can impose reasonable restrictions to these freedoms in the interests of sovereignty and integrity of India, national security and public order, and to maintain decency and morality. India has a diverse political landscape, which represents different ethnic, religious, secular and political interests. Political parties often court ethnic, religious and caste-based minorities for their ability to deliver ‘vote banks’. Observers assess the government has sought to align Indian nationalism with Hindu nationalism. The BJP and its rival the Indian National Congress (Congress) party are the largest among the political parties. Since independence, the Congress party has dominated the national movement for ending British rule and has formed most of India’s governments.
[4] DFAT Country Report India 10 December 2020
The BJP won the most recent elections in Gujarat in 2022. DFAT assesses leaders and members of opposition parties do not face official or societal discrimination on a day-to-day basis. The risk of political violence between rival supporters increases during parliamentary and state elections, especially in states where results are tightly contested. However, in general, given the scale of the Indian election process, elections are conducted peacefully. DFAT assesses people who publicly express views critical of the government face a moderate risk of official discrimination. This may include arrest, harassment and prosecution.
Sources told DFAT[5] that 2022 elections in Gujarat were mostly peaceful and were not characterised by large-scale violence. Sources told DFAT that the political climate in Gujarat was less heated than that of elections in other states, and that if there was violence it did not typically affect people’s day-to-day lives.
[5] DFAT Country Report India 29 September 2023
Political diversity and robust debate are part of the fabric of Indian society. Freedom House, in its 2022 Freedom in the World report, notes that ‘personal expression and private discussion in India have long been open and free’. India has a very large and diverse media landscape with a range of different views expressed.
Parts of the Indian media landscape tend towards sensationalism, especially television. Open-source material, such as media, may give a skewed view of the extent or nature of events. Indian political discourse is passionate and robust, however is usually peaceful. Elections are frequent occurrences nationwide as state governments hold elections at different times. When violence does occur, it attracts significant media analysis but most elections occur without any violence at all. Where violence does occur, it is typically low level and isolated. The potential for violence does not appear to dampen appetite for engagement in politics and does not apparently reduce voter turnout.
While diverse, Indian politics is still often majoritarian. States are organised around ethno-linguistic groupings, and politics of each state or territory will often align to the interests of the majority groups of that area. Sometimes this can lead to heated debate and political theatre where those who are not part of the majority assert their rights, although it is generally peaceful and arbitrated through democratic processes.
Courts, police and criminal processes in India are slow and the extent of religious discrimination versus slow bureaucracy is not clear, but in some cases Indian judges have criticised the police investigations as unprofessional or incompetent.
The Constitution of India devolves responsibilities for police and public order to the states. According to sources, many Indians will choose not to contact the police, even if they are victims of crime. The 2019 Status of Policing in India Report found that two in five police officers surveyed said that people were hesitant to rely on them. The 2018 version of the same report found that only one in five of more than 15,000 people surveyed had recent contact with the police, and those that did were more likely to be male and wealthy. Those who contacted police may well have paid a bribe for the police to take action. a. A key consideration when dealing with Indian police is whether a ‘First Information Report’ (FIR) is made. These are the first reports made by police before they initiate a criminal investigation. Critics of the police claim that police will often refuse to register a FIR; in practice that police action depends on individual police officers and can be arbitrary. The consequences of an FIR not being registered are that the crime is not investigated and no police remedy will be available. As it is the initial action of a police investigation, subsequent police investigation is not possible without an FIR. For example, in a sexual assault case if an FIR is not registered, police arranged medical investigation or care or the taking of a statement will not proceed.
Some media reports allege that some police forces are poorly equipped to fight crime, however this is likely to vary from place to place. Police stations may lack access to basic amenities such as running water or toilets. The Union Minister of State for Home admitted in March 2023 that dozens of police stations do not have access to a vehicle and hundreds do not have a telephone. Some police officers complain that they are overworked or lack adequate training. The judiciary in India is separate from the legislature and executive. The Indian judicial system, like Australia’s, is inherited from British Common Law, and senior courts in particular are known for considered judgements in a similar style to Australian courts. Judgements may be written in English. Applicant said there is corruption and if one can come out.
As in many countries, long delays are common, in part due to understaffing, inefficiency and (more commonly in lower courts) corruption. Some sources claim that lawyers can be incentivised to make unnecessary applications for interlocutory injunctions to the court for legal actions to increase their pay, especially when they are paid by the hour. According to a report by the Indian Institute of Management, Calcutta and reported in the Times of India in October 2019, absent judges, unnecessary procedures and repeated adjournments also caused delays. That report found that it takes about two and a half years for the average litigant to get a judgement, including in lower courts.
The PAAS supported the campaign of the INC in the 2017 Gujarat legislative assembly election Several Patidar leaders also aligned with the BJP. The Gujarat, legislative assembly elections held December 2017. Several agitation leaders joined politics and contested 2022 Gujarat legislative assembly election. Hardik Patel joined the Indian National Congress (INC) in 2020. He served as the Working President of the Gujarat Pradesh Congress Committee, the state unit of INC in Gujarat. He left the party and eventually joined the Bharatiya Janata Party in 2022.
REASONS AND FINDINGS
On the basis of their Indian passports, I accept that the applicants are nationals of India and not nationals or citizens of any other country or have a right to enter and reside in any country other than India. Therefore, I find that the applicants are not excluded from Australia's protection by subsection 36(3) of the Act. I also find that India is the applicants’ “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.
Patidar is the name of a caste, mostly found in Gujarat. .The applicant who is from [Gandhinagar] in Gujarat. The applicant was born in [year]. The applicant was able to obtain a university degree in Gujarat, albeit he was unable to find a job with his degree and had to work in farming. He claimed that he joined Hardik Patel’s Patidar Anamat Andolan Samiti (PAAS) and supported them financially. The Patidar Reservation movement, sometimes called the ‘Patidar agitation’ or ‘Patels’ (named after chief agitator Hardik Patel), was a series of large-scale protests that occurred in the latter half of the 2010s. ‘The protests demanded that the Patidar be recognised as a scheduled caste and thus receive government concessions associated with that status. The protests were often lethally violent and there were many arrests.
In July 2015 Patidar youth, many of whom are surnamed Patel, started public demonstrations across Gujarat demanding OBC status for their community, which would entitle Patidars to a reserved quota of places in government jobs and education. I accept that there were riots in cities and villages and there was a ground swell of support,
The applicant claimed, at the hearing, he could not remember when he attended the demonstration, due to his depression. He was also unable to remember when the police sent anti-social elements to the village that were hitting them or when Hardik Patel came to his village but did confirm that it was before the demonstration. The applicant did not provide any medical reports regarding his condition. When put to him he did not respond. I place no weight on the applicant’s claims that he suffers from depression which affects his ability to record events.
I do not accept that the applicant is a witness of truth.
Firstly, the applicant claimed that he went to meetings with Hardik Patel who he met personally in their village when Hardik Patel came to the village and gave a speech that the applicant attended. He also claims that Hardik Patel asked the applicant for a donation and support, the applicant joined with them and supported them financially. He was unable to provide the date of these event. I do not accept that he has any medical condition that affects his ability to recall events or that the applicant has depression that caused him not to remember. He has not provided any medical evidence to support his claim and when put to him he has not provided any medical evidence that he has memory loss/depression the applicant did not comment. I do not accept as plausible that he would be unable to recall the date of when Hardik Patel came to his village especially as he claims that he was working under the leader, assembling people and issuing pamphlets and organising a rally, he was providing food for the people coming there.
Secondly, the applicant claims that he attended one demonstration in Gujarat. It was organised by Hardik Patel. He claimed in his PV that the demonstration/rally was in Gandhingar. Gandhingar, is approximately 28.5 kilometres from Ahmedabad. He was not arrested and he ran away but the BJP after that wanted to harm him and they attacked him for 6 to 7 months afterwards.
At the Tribunal hearing the applicant claimed that he attended the demonstration/rally in Ahmedabad at [Location 1] in 2016 after he returned from a trip to Australia [in] April 2016. The independent evidence, cited above, indicates that the large rally/demonstration held at [Location 1] was held in Ahmedabad. His evidence regarding the location of the demonstration/rally is inconsistent and he had no response when the inconsistency was put to him.
Thirdly, the applicant at the first Tribunal hearing when asked if the demonstration was before or after his return from Australia in 2016, responded that it was after his return. The applicant returned from Australia in April 2016. He related the date to his daughter being [age range] years of age at that time. She was born in [specified month] therefore on his return from Australia in April 2016 his daughter was [age] old.
The independent evidence before the Tribunal indicates that [a] major demonstration, [details deleted] was held in Ahmedabad [in] August 2015, when his daughter was [age range], at [Location 1], and was attended by [crowd estimate]. When put to the applicant at the second Tribunal hearing that the demonstration was in 2015 prior to his leaving India in 2016, not after his return, the applicant did not respond. I am satisfied that the [specified rally] was held prior to the applicant leaving for Australia in March 2016.
Whilst I accept that applicants can and are nervous when giving evidence at a hearing, and error can be made, I do not accept that the applicant could be so confused as to whether an incident occurred before or after international travel to Australia and return. I am satisfied that the applicant did not attend the rally in 2015.
I had put to the applicant there were other people harmed at the rally and there was no reason the BJP wanted to especially kill him. He responded the police were arresting the leaders in the rally. He said that the police attacked them at the demonstration and he ran away. The applicant was not a leader.
As the applicant did not attend the [specified] rally I do not accept that the applicant rang away from the rally. I also find that police did not attack him at the demonstration and he ran away or that after attending the rally he was attacked and harmed by the BJP.
Fourthly, the applicant claims that he was actively involved in politics after he left university donating money for Congress party candidates during the elections and campaigning for the Congress party, working very hard for Congress candidates in the last election [2012] he was unable to coherently explain, with any detail, what his involvement in politics was in Gujarat, initially only referring to the Patidars in vague terms stating that there was a meeting against the government and they demanded they should get jobs.
Further, other than stating that there were riots in Gujarat, in all the cities and villages, there was a ground swell and they went against the government and BJP Congress, he did not explain what actions he took when asked. He only spoke in general terms about groups in the community and repeated that he “joined this process and participated”.
The applicant also stated that he not a leader but an active organiser for the PAAS. I asked the applicant a number of times what he organised and the only activity he referred to was that he handed out pamphlets. Later in the hearing, the applicant he claimed that he was assembling people and issuing pamphlets and organising a rally, he was providing food for the people coming there. He was in a town wise group, he was with the main leader. He was helping the leaders organise all these activities.
I do not accept as plausible that a person who claims to have an active involvement in politics such that the BJP were attempting to harm him would be unable to provide any meaningful information about his position. I would have expected him to be describe what he did politically, when he did it and how many people were involved with him and who his immediate leaders were as he confirmed he was not a leader.
Fifthly, the applicant claimed that the police would send anti-social elements to the village after the demonstration that occurred 10 years ago. He could not remember the date except to say that it happened after the Patidar movement. As stated above I do not accept that the applicant has memory loss/depression.
I asked how he knew that it was the police who had sent the bad elements and he said the government is against Patidars and it was the BJP government. When I asked the applicant about what happened in his village and who came to attack and assault them, as claimed, he said that they killed one or two boys in the next village when there were communal riots at the time. It was government instigated attacks. The applicant did not provide any information about anyone being harmed in his village.
The applicant claims that after the rally, after 6 or 7 months the attacks occurred and there were quite a few children killed. There is no independent evidence before me to suggest that anything had happened in the applicant’s village and when put to him that he appeared to be describing things that happened in other parts of Gujarat, he agreed and there is no record of unrest in his village. I am of the view that had there been unrest of the type described by the applicant it would have been referred to in the independent reports, such as Amnesty International or US State Department or DFAT. I am satisfied that the applicant was describing events that occurred in Gujarat and these were not events that had occurred in his village. I am satisfied that the government and/or police did not send anti-social elements to the village to assault and harm the villagers, including the applicant 6 or 7 months after the Ahmedabad rally.
Sixthly, the applicant claimed at first Tribunal hearing that once or twice there were attacks on him, in 2015 or 2016. Two or three people came on a bike and attacked him, assaulted him and then threatened him and they left. They did not come back again but they kept on threatening them telling them to stop the movement. He then stated that there were other people in the village who were attacked and threatened as well. I asked him how long after the rally that 2 or 3 people came on a bike and attack him, assault him and threaten him and leave. He said it happened about 6 to 7 months after the rally.

At the second Tribunal hearing I asked the applicant when as claimed in his PV that the BJP members looted and ransacked his house and threatened to kill him and if this occurred after the rally and for how long after the rally. He said about 6 to 7 months after the rally . I asked how long after the rally that the violence continued and attacks on them and he said that it continued for 7 months.
When trying to establish when these attacks occurred he said at the first Tribunal hearing that he was attacked 2 or 3 times after he returned from Australia [May 2016].
At the first Tribunal hearing the applicant only advised the Tribunal about being attacked by people on bikes and not about the BJP ransacking and looting his home in 2017, as claimed in his PV Application. I put to the applicant that he had told the Department at interview, as recorded by the delegate in his decision attached to the application for review, that his house was looted and ransacked in middle of 2017 by BJP prior to coming to Australia and he moved to a relative’s house in [Town 1], Ahmedabad, leaving his wife and child at his in-laws house until he organised his visa to come to Australia with his family. When the inconsistency was put to the applicant about his evidence to the Department and to the Tribunal, he said he had a problem with his family and looting. He did not have problem with his in-laws.
The applicant’s evidence about when these incidents occurred is inconsistent. I find that the applicant was not attacked by people on bikes and I find that the BJP did not ransack his house at any time and he did not move to a relative’s house until he could get a visa..
Seventhly, as stated above, the demonstration/rally occurred [in] August 2015. The applicant left India to go to Australia [in] March 2016 and returned to India [in] April 2016. I do not accept that he was harmed prior to departure to Australia in March 2016. His return to India in April 2016 indicates a lack of a subjective fear of harm.
Eighthly, the applicant remained in India after his return in May 2016 until his departure again to Australia in 2017. I do not accept that he and his family continued to be harassed as claimed. Whilst I accept that during the rioting etc there may have been children in other villages who were killed, in light of the applicant’s inconsistent evidence I do not accept that the applicant and his family were harmed.
I am satisfied that the applicant is not a witness of truth.
As I do not accept that the applicant is a witness of truth I find as follows:
·The applicant was not a student leader of NSUI, student wing of Congress party while studying his [Qualification 1] degree or that he was actively involved in politics after he left university and donated money for Congress party candidates during the elections and he did not campaign for the Congress party.
·Hardik Patel, did not ask the applicant for donation and support, and he did not join them and support them financially.
·he did not go to a meeting with Hardik Patel that he met personally in their village
·he did not work under the leader, assembling people and issuing pamphlets and organising a rally, or providing food for the people coming there.
·the police did not send anti-social elements to the village after the demonstration
·he was not a leader, he was not arrested, he was not targeted by anyone.
·He did not participate in Gujarati politics
·He was not attacked by anyone before or after his visit to Australia in 2016
·BJP members did not loot and ransack his house and threatened to kill him if he continued to campaign against BJP.
·BJP did not asked its members to attack him or ask local gangs to kill him.
·He did not ask family members to help but they refused.
·there were no attacks on him in 2015 or 2016 or in 2017
·he is in contact with his family in Australia and in India
·the applicant and his family were not threatened or harmed in India prior to their arrival in Australia
·during the 2017 elections in Gujarat he was already in Australia. and the election was in December 2017. He did not work for any party before the election.
·He is not estranged from his extended family or his in-laws,
I am satisfied that the applicant and his family did not suffer any harm prior to their arrival in Australia in 2017.
In light of all my findings, having considered the applicant’s claims singularly and cumulatively, I am not satisfied the applicant suffered serious harm in India for a refugee reason.
I am required to consider whether the applicant will suffer serious harm within a reasonably foreseeable future on his return to India.
The Gujarat Legislative Assembly elections were held December 2017. Several agitation leaders joined politics and contested 2022 Gujarat legislative assembly election On 12 March 2019, Hardik Patel joined the INC but he also later switched to BJP in June 2022. When put to the applicant he said Hardik made money and he did fraud against Patidar.
DFAT understands that the Patidar movement is not currently active. DFAT assesses that, overall, participants in Gujarati politics face a low risk of official or societal discrimination or violence. I asked the applicant why he would take part in Patidar movement on his return when it is virtually dissolved. He said yes it has dissolved and there is no point in participating. Hardik Patel is now a member of BJP and there is no Patidar movement. Whilst he claimed that it can erupt again and one never knows because they go around harassing people when asked to explain who went around harassing people, he said he has been here for 6-7 years and he is not aware of the current situation. I am satisfied the independent evidence indicates that the Patidar movement is not of any significance, there are Patels in BJP and also in Congress Party.I do not accept that the applicant will take part in any Patidar movement on his return and I do not accept that he will participate in Gujarati politics as he did not participate in Gujarati politics when he lived there. I am satisfied there is not a real chance the applicant will suffer serious harm, within a reasonably foreseeable future, on is return to India for being a Patel or Patidar or a former PAAS supporter or follower or imputed Patidar or imputed former PAAS supporter or follower.
I asked the applicant what he now fears about returning to India and he said that “they will attack us as they know us”. He said that Ady has become the leader and anti-social elements have increased. Whilst he claims there is no certainty as anti-social elements have increased this is mere speculation by the applicant as there is no independent evidence before the Tribunal to suggest that anti-social elements have increased.
The applicant was not a leader of a group or organisation and he was not attacked prior to 2017 elections. He said attacks only occurred on the people participating. The applicant was in Australia prior to the 2017 elections. He did not participate in those elections. I do not accept that the applicant will be harmed by anti-social elements or because Ady is the leader as I do not accept that the applicant will participate in Gujarati politics.
There is now reservation for OBC in Gujarati government. The independent evidence provides freedom of expression etc and leaders of opposition parties do not face discrimination, there is a risk of violence during elections and whilst there is a risk for those taking part in elections the last election in Gujarat was peaceful and not characterised by large scale violence. DFAT understands Patidar movement is not active and overall participants face low risk of violence. Personal expression is open and free. Whilst courts police and criminal processes are slow, the courts and judges often criticise police investigations.
The applicant claims that you cannot do anything against the government, if you are caught by police and put in prison you will never come out. Whilst I accept that corruption exists, there is a fairly effective police service, an independent judiciary and court system and there is a process if arrested and imprisoned. When put to the applicant he agreed. Therefore I do not accept his claim that if you are caught by police and put in prison you will never come out. It is mere speculation.
As for his fear of being murdered at any time or killed in a road accident and he feels safe in Australia and does not know what will happen in India DFAT does not suggest that the Gujarati authorities are unwilling or unable to protect their citizens. His claim of being murdered at any time or killed in a road accident is mere speculation.
Further, I have no independent evidence before me to suggest that members of Congress party or imputed supporters of Congress or Patels are harmed because they did not support the Patidar movement, by either BJP members or the leaders and followers of the Patidar movement. I am of the view were it the situation it would be reported in independent sources such as DFAT, US State Department reports and Amnesty International.
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. The applicant has not been involved in any political actions in India and there is no information before the Tribunal that there is unrest in Gujarat at present. I am satisfied there is not a real chance the applicant will suffer serious harm, within a reasonably foreseeable future, on his return to India for his political opinion or imputed 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 Patel. He was not harmed when he left India.

100. 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
101. The applicant has not claimed to have committed any criminal offences that indicate there is a real risk that he would be imprisoned, tortured, killed or subject to other ill-treatment. 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.
102. Whilst the applicant claims there are numerous examples which can be found online in the media that the BJP government did, and continues to, obstruct justice and prevent accountability for the perpetrators of violence against opposition and those who stand against the government and there is an assault on the secular and free Indian constitution DFAT[7] states that India is a mature and robust democracy in which politics is hotly contested, and news and analysis is often sensationalised. Social media is used widely and sometimes includes disinformation. India is the world’s largest democracy. Both state and national elections meet international standards for free and fair elections. I prefer to rely on DFAT and not online media.
[7] DFAT Country Report India 29 September 2023
103. As for there being a serious threat to the applicant and his family’s life and well-being as the current government lacks will, the applicant was not harmed in India. The independent evidence before the Tribunal that includes DFAT reports and US State Department reports do not suggest that the applicant would suffer any harm by the Indian legal or political system. When I put the independent evidence from DFAT about the Indian legal and political system to the applicant, he stated that the main problem was corruption. I accept that corruption can and does exist in India. I do not accept that the applicant has suffered any harm as a result of any corruption within the India legal system or the political system. I do not accept therefore that there a serious threat to the applicant and his family’s life and well being and I do not accept there is a real risk the applicant will suffer significant harm within a reasonably foreseeable future because of corruption within the Indian legal or political system.
104. The applicant claims any dissent against the government is not tolerated and dissidents are taken to task to teach them a lesson or that the government does not want to just crush dissent but it wants to crush thinking. The applicant has made no claims of being a dissident or having attempted to express any dissent against the government in India or in Australia.
105. In regard to the Supreme Court of India failing to live up to its role as custodian of constitutional rights, they are being pressured to compromise and every independent institution of repute had their independence scuttled some way or other these days this does not accord with DFAT’s advice that states:
Political diversity and robust debate are part of the fabric of Indian society. Freedom House, in its 2022 Freedom in the World report, notes that ‘personal expression and private discussion in India have long been open and free’. India has a very large and diverse media landscape with a range of different views expressed.
However, given the vast number of opinions that are openly expressed in the context of the largest democracy in the world, the number of people facing charges or official harassment is very small. Even when charges are laid, they will not necessarily be upheld by the judiciary – although DFAT notes that the judiciary is slow to hear cases and decisions may take years. DFAT assesses 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.
As in many countries, long delays are common, in part due to understaffing, inefficiency and (more commonly in lower courts) corruption. Some sources claim that lawyers can be incentivised to make unnecessary applications for interlocutory injunctions to the court for legal actions to increase their pay, especially when they are paid by the hour. According to a report by the Indian Institute of Management, Calcutta and reported in the Times of India in October 2019, absent judges, unnecessary procedures and repeated adjournments also caused delays. That report found that it takes about two and a half years for the average litigant to get a judgement, including in lower courts.
According to Freedom House and other sources, the upper levels of the judiciary display more autonomy, however the lower levels can suffer from corruption and politicisation.
106. Having considered all of the applicants’ claims, individually and cumulatively, I am not satisfied that the applicants will be arbitrarily deprived of life, the death penalty will be carried out on them, they will be subjected to cruel or inhuman treatment or punishment or they will be subjected to degrading treatment or punishment if they return to India now or in the reasonably foreseeable future.
CONCLUSION
107. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).
108. Having concluded that the applicants do 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 applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
109. There is no suggestion that either 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.
110. Accordingly, the applicants do not satisfy the criterion in s.36(2).
DECISION
111. The Tribunal affirms the decision not to grant the applicants protection visas.
Lilly Mojsin
Member

ANNEXURE A
112. 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.
113. 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).

115. 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

117. 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 4002

12 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Remedies