1904107 (Refugee)

1904107 (Refugee) [2024] AATA 4339 (13 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1904107
COUNTRY OF REFERENCE:                   India
MEMBER:Phillippa Wearne
DATE:13 August 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 August 2024 at 11:16am
CATCHWORDS
REFUGEE – Protection Visa – India – fears from the Pakistani militants – had received no threats of harm or harm in India as an ex-serviceman – members of a particular social group – a retired IDF serviceman officer – the real chance of persecution does not apply to all areas of India – fear of persecution is not well-founded – 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
BACKGROUND

The applicant is a [age]-year-old national of India. He arrived in Australia on [date] June 2016 as the holder of a Tourist (FA-600) visa. He lodged an application for a protection visa on 1 September 2016.
On 1 February 2019 a delegate for the Minister of Home Affairs refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
CLAIMS AND EVIDENCE
Protection visa application
According to his protection visa application, the applicant was born in Jammu and Kashmir.
He states that he reads, writes and speaks Hindi and Punjabi and he reads and writes English. He gives his religion as Sikh. He indicates that he had [number] years of formal education.
I have summarised the applicant’s claims for protection below.
He seeks protection in Australia because he fears for his life. He believes unknown people from Pakistan will kill him because he is a retired officer of the Indian Defence Force (IDF). He faces a particular risk because his family home is near the border of India and Pakistan. The applicant was threatened by unknown people who promised to kill him if he sought assistance from any source. He was desperate to leave India, so he left immediately.
Departmental interview
The applicant attended an interview with a Departmental officer on 8 January 2019. A recording of the interview is held on the Department file, and I have listened to it.
During the interview the applicant provided further information which I have set out below:[1]
[1] See Department decision record pp 2-3, provided by the applicant.
Family
·His mother, wife and [children] are residing at [Town 1] district, Kashmir, India. He was living with them at this family home before he travelled to Australia. He was born and lived most of his life in this village, except during periods of his IDF deployment in different places.
·The applicant’s family stayed in [Town 1] while he served in the IDF, apart from one year when they joined him on deployment.
IDF
·The applicant joined the IDF in 1985 and served for 30 years. He retired in [2015]. He is receiving about AUD600 as a monthly pension.
·He served in the infantry. He started out as a soldier, rose through the ranks, and retired as a [role]. He commanded battalions of varying size. He also had experience in administration, fitness and combat training.
·He did not undertake any national intelligence roles while serving on the border between India and Pakistan. He was involved in surveillance and combat operations to ensure that Pakistani militants did not enter India. He was trained in handling weapons including a rifle, pistol, carbine, light machine gun and hand grenades.
·During his military service, the applicant was deployed to various parts of India, including:
o[Deleted]
·His place of deployment changed every 3 or 4 years. In 1988, he was also deployed for more than a year in [Country 1] as part of the military contingent sent by India to assist the [Country 1] government.
Why the applicant fears harm in India
·The applicant seeks protection in Australia because he believes that Pakistani militants can identify him as a retired IDF officer and kill him. Pakistani militants settle and move in the mountain ranges near the border of Jammu and Kashmir and regularly cross the border to commit various forms of atrocities. He said that he faced a greater risk because the family home was near the border where serious security incidents had happened.
·He stated that Pakistani militants are terrorists who are not easily identifiable. They represent themselves as civilians but hide weapons on their bodies and can only be identified after they have caused harm. He said that based on his military experience, he would know that Pakistani militants were crossing the border because he could hear shots being exchanged between the militants and the IDF.
·The applicant said that Pakistani militants have their own intelligence agents. They can identify him as a retired IDF officer because he was deployed near the border in the last 4 years of military service. The applicant’s last deployment was in [Village 1], [named town]. He was based in the [Village 1] station but was required to travel to other areas near the border. He was involved in military operations in [Village 1] within 25-40 km from the border.
·The applicant said that he feared for his life when visiting his family while serving in the IDF. He generally visited his family once every 3 months. The applicant did not raise any claims of being threatened or attacked during these times. However, he believes that he faces a higher likelihood of being attacked after his retirement because he stays home most of the time.
·The applicant clarified that he had not actually received any threats of harm while he was in India as an ex-serviceman. The applicant said that the claim that he had done so in his protection visa application was a mistake.
·He could not seek protection from the Indian authorities or anyone in his community. The militants’ presence is ubiquitous, and the authorities cannot protect every person. He cannot relocate within India because he has no funds to buy property in another area. It would be difficult for him to sell his house in [Town 1] because of security concerns in that area.
Australia
·The applicant's wife travelled with him to Australia but has since gone back to India to be with their children.
·He is currently employed as a [occupation] in Australia.
·He has no right to enter or reside in a third country.
At the interview the applicant submitted copies of the biodata pages of his Indian passport, his IDF pensioner card, his unique identification number, his retired IDF officer card number, and his Indian elector identity card number.
The delegate’s decision
Based on the country information available at the time, the delegate accepted that terrorist groups operated in Jammu and Kashmir, and that the area had been experiencing escalating violence since 2016 due to increased cross border shootings and militant attacks. The delegate also accepted that a variety of armed groups operated in the area. The delegate referred to the many areas where the applicant had been deployed to and found that he would not face a real chance of persecution in relocating to one of those areas, noting that the applicant raised only financial concerns in regard to relocating. The delegate accordingly found that the applicant did not have a well-founded fear of persecution. The delegate was also satisfied that in considering the applicant’s circumstances that it would be reasonable in the sense of being practicable for the applicant to relocate to one of those areas where he had been deployed, where he would not face a real risk of significant harm.
A copy of the delegate’s decision record was submitted with the application for review.
The review application
On 22 February 2019 the applicant applied for a review of the delegate’s decision to the Tribunal.
The hearing
The applicant appeared before the Tribunal on 7 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi language.
Where relevant, the applicant’s oral evidence at the hearing is referred to in the analysis below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complementary protection.
Relevant law
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Country information
The DFAT Country Information Report India 2023 (the DFAT Report) states:
Overall, most Indians are not exposed to significant security threats on a day-to-day basis. There are some exceptions in specific, remote areas [including in Jammu and Kashmir].[2]
…
Those that live in cities may be exposed to civil unrest, including violent rioting, which occurs from time to time across the country. Drivers of civil unrest are complex and varied and can include ethnic and religious tensions, insurgencies and terrorism and political and ideological violence. For the most part most Indians will avoid being in such situations.[3]
Jammu and Kashmir, an area in northern India in the Himalayas, was a state with special status under Article 370 of the Constitution until 2019 when the government amended the constitution and reorganised the state into two union territories: Jammu and Kashmir; and Ladakh. Jammu and Kashmir has a majority Muslim population with a significant Hindu minority and small Sikh and Christian groups. Sovereignty over the region is also claimed by Pakistan and has been the subject of armed conflict. The de facto border between the two countries is the ‘Line of Control.’ A ceasefire between India and Pakistan has held since February 2021. The region has experienced Islamic extremist, insurgent and violent separatist activity.[4]
[2] DFAT Report para 2.47 which are listed as Jammu and Kashmir, North-east separatism and Naxal movement (Maoists).
[3] DFAT Country Information Report India 2023 para 2.49
[4] DFAT Country Information Report India 2023 para 2.49
Updated reports indicate that the ceasefire continues to be successful:
The February 2021 ceasefire between India and Pakistan along the Line of Control in Kashmir has—despite occasional violations—turned into one of the longest-lasting in the countries’ 75-year shared history.[5]
[5] The 2021 India-Pakistan Ceasefire: Origins, Prospects, and Lessons Learned, Christopher Clary 6 February 2024 – accessed 8 August 2024
A February 2022 Carnegie report observing the positive changes occurring in this border area over the previous year noted:[6]
Besides resumption of uninterrupted daily activities, the period also saw the return of celebrations of special occasions like festivals and marriages—a semblance of normalcy. The ceasefire also saw the arrival of tourists, including for religious tourism and adventure tourism, to more remote destinations along the border. Both local administrations and the central administration have expressed a commitment to boosting tourism along the border. In fact, buoyed by relative peace, the Indian Army recently opened a cafeteria for the public at its forward position in the Uri sector—something that would have been unimaginable until last year.
[6] Bordering on Peace: Evaluating the Impact of the India-Pakistan Ceasefire, Carnegie Endowment for International Peace, Surya Valliappan Krishna, 24 February 2022 – accessed 8 August 2024
However, militant activity continues:
While ceasefire violations by Pakistan security personnel have been reduced, similar trends are not observed in infiltration by militants. Infiltration incidents are attempts by militants at crossing the [Line of Control] or [International Border] and are sometimes accompanied by covering fire from Pakistan security personnel. In 2021, twenty-eight infiltrations were reported by India until October as compared to fifty-one in the whole of 2020. Successful infiltration bids result in extensive combing and security operations, including encounters by the Indian security forces, which in some cases cause curfews and shutdowns that affect everyday life.[7]
[7] Bordering on Peace: Evaluating the Impact of the India-Pakistan Ceasefire, Carnegie Endowment for International Peace, Surya Valliappan Krishna, 24 February 2022 – accessed 8 August 2024
The delegate’s decision record refers to the 2018 Global Terrorism Index (GTI)[8] which noted that while deaths from terrorism had been on a downward trend since 2008, deaths from terrorism rose by 12% from 2016 to 2017 and India was ranked 7^th on the GTI.[9] The 2024 GTI indicates this downward trend continues and that the security situation in India has significantly improved as it is now ranked 14^th on the 2024 GTI.[10]
Analysis, reasons and findings
[8] Decision record p 5
[9] Decision record p 5
[10] Global Terrorism Index, 2024 – accessed 8 August 2024
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant confirmed that he and his wife had travelled to Australia together in 2016. She returned to India after 5 days to be with their [children], then [age range].
The applicant has been working in Australia since 2016 as [roles]. He works 4-6 days a week. He has moved residences within Greater Sydney 3 times.
The applicant said that he rings his family 1-2 times a day. Apart from [a] daughter, who is married and lives with her in-laws nearby, they remain in the same family home in [Town 1] where they have always lived. The applicant told me that he travelled to [Country 2] for about 40 days in 2023 to spend time with his family who joined him there for a holiday.[11]
[11] Travel to [Country 2] is confirmed by stamps on the applicant’s passport which he brought to the hearing
The applicant’s wife does not work. His IDF pension, now about AUD1,000 a month continues to paid directly to his family in India.
I accept that the applicant is in daily contact with his family, they rely on his financial support and they had a lengthy holiday with him in [Country 2] last year. I consider that while the applicant lives apart from his family, through daily contact, they remain very much part of each other’s lives. I find that the applicant is dedicated to his family’s wellbeing.
The applicant confirmed evidence about his service with the IDF, specifically where he had been deployed for lengthy periods of time in India, and that he was also deployed in [Country 1]. I accept that he served in the IDF from 1985 until [2015], in the roles he claims including administration and training, and that for the last 4 years of his service he was deployed near the Pakistani border in Kashmir.
I noted that he had now been away from India for about 8 years and asked why he feared to return there. He replied that the situation in Jammu and Kashmir was ‘not good’, and this is why he had joined the IDF in 1985. The applicant said that he fears the Pakistani terrorists or militants because he worked for the IDF, and they could do anything to him.
The applicant confirmed that he had received no threats of harm or harm in India as an ex-serviceman. I asked, if this was the case, why would he fear any harm in returning to India 8 years later, especially as the security situation in the region had improved significantly. The applicant agreed that circumstances are improving there, but he still has a fear. He added he just needed more time here and then he would return to India. He would go back to his country when the situation was clear.
I note that the applicant does not maintain his written claim that he was threatened by unknown people who promised to kill him if he sought assistance from any source. I also accept his evidence and that he was not harmed or threatened as an ex-IDF serviceman before he left India.
I referred to updated country information since the time of the delegate’s decision in 2019, notably the successful February 2021 India-Pakistan ceasefire along the Line of Control in Kashmir[12] and the resumption of interrupted daily activities and celebrations of special occasions. I noted that the situation had improved to such an extent that tourism activities were taking place in remote border locations.[13] I noted that the 2024 GTI indicated that the situation in India had significantly improved since the time of the delegate’s decision. I observed that it seemed to be a very different situation now from 2016 when the applicant had left India. The applicant agreed saying it was a safer place. He added that the situation was not ‘completely’ resolved and there still were attacks from terrorists or militants. There was still a danger for him.
[12] The 2021 India-Pakistan Ceasefire: Origins, Prospects, and Lessons Learned, Christopher Clary 6 February 2024 – accessed 8 August 2024
[13] Bordering on Peace: Evaluating the Impact of the India-Pakistan Ceasefire, Carnegie Endowment for International Peace, Surya Valliappan Krishna, 24 February 2022 – accessed 8 August 2024

I noted that it has been over 8 years since the applicant had left India. I asked the applicant how they would be able to identify him as ex-IDF if he returned to his home in India. The applicant replied that they ‘knew everything’ about him. I explained that I had difficulty accepting this. If they knew everything about him, they would know his home address in [Town 1], which is also where his family has always resided. I explained that I considered that the applicant is dedicated to his family’s wellbeing. I could not imagine that he would ever allow his family to be in danger. The applicant replied that he had worked for the IDF not his family.
I also noted that the applicant had returned to his home in [Town 1] about every 3 months while serving in the IDF. I explained that I had difficulty accepting that he would put his family at risk in this way, if he considered himself a target from militants or terrorists. The applicant said that sometimes it was 3 months and sometimes it was longer. I acknowledged that he had told the delegate during the interview that he returned every 3 months or 4 months or 9 months. However, I noted that despite this, given his long service in the IDF (30 years) he would have returned home on many occasions. The applicant agreed.
I noted that in responding to the delegate about relocating within India to avoid harm he fears from the Pakistani militants, he had claimed that it would be difficult to sell his house in [Town 1] because of the security concerns there. I suggested that the applicant could move to another area in India where he would not face harm, including near [Country 2], where he recently holidayed with his family, or one of the places where he had been deployed. I also referred to country information indicating that his local area, [Town 1], was far more secure now and so his property could be sold so that he could more easily relocate. The applicant responded that it was hard to sell a property and buy another one. I replied that I had difficulty accepting this as a reason not to relocate elsewhere in India; people routinely sold and bought property and relocated. I also indicated that the applicant had been working in Australia and would have saved a lot of money which could assist with the costs of relocation. The applicant agreed that he could relocate but added ‘but still it’s difficult’ to do.
To assess the applicant’s claims under s 5J(1)(a), I have considered whether he fears persecution as a member of a particular social group, namely a retired IDF serviceman officer who previously served at the border of India and Pakistan.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50%.[14]
[14] Chan Yee Kin v MIEA (1989) 169 CLR 379
Country information indicates that security issues with Pakistani militants in the Jammu and Kashmir region have existed for decades.[15] Although the frequency of his visits varied between every 3-9 months, the applicant continued to return to the family home in [Town 1] while on leave from the IDF, including during the last 4 years of his service when he was deployed near the border. I have already found that the applicant is committed to the well-being of his family. I consider that he would not have continued to return to the family home if he really thought that he was in danger of being killed or attacked, as by doing so he could also be endangering them. I don’t accept that the applicant believes that militants or terrorists would distinguish between family victims in attacking him and I don’t accept this as a reason why he continued to return home despite claiming to fear harm at home. The applicant’s service with the IDF ended in [2015]. He was not harmed or threatened in the period between then and when he left India in June 2016, despite country information indicating heightened cross-border firing and militant attacks in Jammu and Kashmir at the time.[16] The applicant claims that he was desperate to leave India and that he left immediately. However, he delayed for 1.5 months after being granted the visa to visit Australia. I don’t accept his explanation of needing all this time to make arrangements for the children given they were [age range] at the time, his wife remained only 5 days in Australia and presumably the applicant could have left earlier by himself. Given all of the above I do not accept that unknown Pakistani militants or terrorists know everything about the applicant or that they identified him as a retired IDF serviceman, or that they wanted to harm him.
[15] Decision record p 5
[16] Decision record p 5
Despite his claims that the Pakistani militants and terrorists know everything about him, the applicant makes no claims of threats or harm to his family who continue to live in the same address while the applicant has been in Australia. Updated country information set out above demonstrates that the security situation in the Jammu and Kashmir border region with Pakistan has significantly improved since the time of the delegate’s decision in this matter. The February 2021 ceasefire was held and has been effective. While militant activity continues, the reorganisation of the former state into 2 Union territories gives the national government more power in the region.[17] The applicant has been in Australia for the past 8 years. I do not accept that the applicant would be identified as a retired IDF officer by Pakistani militants or terrorists or that they would threaten or harm him on his return to his home in India.
[17] DFAT Report para 2.50
On the basis of the evidence before me, I do not accept that there is a real chance that the applicant will be seriously harmed by Pakistani militants or terrorists if he was to return home to India in the reasonably foreseeable future.
Even if I accept that there is a real chance of the claimed harm happening, which I do not, I have also considered whether it relates to all areas of India. Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’.[18]
[18] FCS17 v MHA (2020) 276 FCR 644 at [80]–[81]
Country information referred to above indicates that Pakistani militant activities operate in the border areas of Pakistan and Kashmir. The applicant is familiar with several other locations in India, away from the border area, where he was deployed for lengthy [periods]. Further, the applicant only raised issues of finances and difficulties of selling and buying a home in response to suggestions of relocating to one of these areas or another where there is safe human habitation and to which safe access is lawfully possible. He has not raised a fear of harm from Pakistani militants or terrorists still be able to find him in a relocation. Based on the information before me, I am satisfied that the real chance of persecution does not apply to all areas of India as required by s 5J(1)(c) of the Act. The applicant’s fear of persecution is therefore not well-founded.
For the reasons given above, I am 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), I have considered the alternative criterion in s 36(2)(aa).
For the reasons outlined in paragraphs 42 and 43 above, I do not accept that there is a real risk[19] that the applicant will be harmed by Pakistani militants or terrorists if he were to return to India. Even if I were to accept, which I do not, that the applicant faces a real risk of being significantly harmed should he be removed to India, I am of the view that it would be reasonable for him to relocate to a different area in India to avoid the risk of suffering significant harm.
[19] The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition in MIAC v SZQRB (2013) 210 FCR 505
Under s 36(2B)(a) there is taken not to be a real risk that an applicant will suffer significant harm in a country, if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm.[20] Whether relocation is reasonable, in the sense of ‘practicable’ depends on the particular circumstances of the applicant and the impact upon that person of relocation within their country.[21]
[20] SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51
[21] SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51
As noted in the country information set out above, Pakistani militants operate in the Jammu- Kashmir border area with Pakistan. The applicant has served for substantial periods of time in other locations in India. When asked why he would be unable to relocate internally, the applicant did not claim that he would be pursued and located by Pakistani militants or terrorists upon relocation. Rather he was concerned with financial issues and the difficulty of selling, buying and moving. I am satisfied that if the applicant were to relocate to a different area in [India], away from the border area, there would not be a real risk that he will suffer significant harm.
According to the DFAT Report, there are no legal barriers to internal relocation and India has a long history of internal migration.[22] The applicant is a [age]- year-old man who has worked in a variety of positions in Australia since 2016. In his IDF service he was also engaged in administration and training activities. He has a range of employment skills and experience. He has moved locations at least 3 times since arriving in Australia, so has practical experience in moving locations. He has not pointed to any specific difficulties or impediments he would face in finding employment if he were to relocate internally in India. I find that the applicant would be in a similar position to other Indians of the same gender, age and level of skill participating in the labour market. He did not offer any other reason as to why it would be unreasonable for him to internally relocate. I find that it would be reasonable to expect the applicant to relocate to another area in India where there is not a real risk of significant harm.
[22] DFAT Report para 5.19
I am, therefore, not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India as the receiving country, there is a real risk that the applicant will suffer significant harm. I am 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 any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Phillippa Wearne
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
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 4339

13 August 2024

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