1904296 (Refugee)

1904296 (Refugee) [2024] AATA 3975 (5 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1904296

COUNTRY OF REFERENCE: India
MEMBER:Suhad Dutra
DATE:5 September 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 05 September 2024 at 10:59am
CATCHWORDS
REFUGEE – protection visa – India – imputed political opinion – involvement in visa fraud – detention – physical assault – legal proceedings – harm from former employer – free exit from India – 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 19 February 2019 (“Delegate’s Decision”) to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). The application for review, lodged on 25 February 2019 (“Review Application”) included a copy of the Delegate’s Decision.
The applicants claim to be citizens of India. They arrived in Australia together in November 2016, holding Visitor visas.[1] On 22 November 2016 they lodged an invalid protection visa application (PVA). On 20 December 2016 they lodged a valid PVA, which is the subject of this review.[2]
[1] The Delegate’s Decision indicates those visas were applied for on 7 October 2016 and granted on 26 October 2016
[2] These details are set out in the Delegate’s Decision and are not in contention
In the PVA and subsequently, only the first named applicant (“A1”) raised claims for Australia’s protection. The second named applicant (“A2”) applied only on the basis that she is a member of the same family unit as A1, being his spouse.[3] The claims made by A1 are that he faces serious harm or death in India for reason of his perceived involvement in a visa fraud business, which he was not in fact involved in. The harm he fears includes retribution from those who lost money and legal consequences for his actual and/or perceived involvement.
[3] During the hearing on 16 July 2024, A1 confirmed that no protection claims are raised by A2, and that she has applied for a PVA based only on the basis that she is A1’s spouse
During the hearing A1 said his PVA, written statement dated 12 November 2016 (“2016 Statement”), and other documents submitted in respect of the primary and Review Application, were prepared with assistance from [Representative A]. A1 paid for that assistance, believing [him] to be a Registered Migration Agent (“RMA”).
The delegate refused to grant the visas, finding that the applicants were not persons in respect of whom Australia has protection obligations.
ISSUES FOR DETERMINATION
The issues in this case are whether the protection claims and evidence are credible and whether the applicants are persons in respect of whom Australia has protection obligations. This requires the Tribunal to determine whether the applicants meet the ‘refugee’ criterion and, if not, the ‘complementary protection’ grounds. The criteria for a Protection visa are attached.
For the following reasons, I have concluded that the decision under review should be affirmed.
CLAIMS AND EVIDENCE
Claims and Evidence Before the Department
A1 declares, in the PVA, that he left India to escape harassment from political goons[4] who falsely accused him of cheating them. The Indian authorities and police were also chasing him. He does not believe he could safely relocate within India until the charges framing him are withdrawn.[5]
[4] PVA answer 89
[5] PVA answers 93 to 96
A1 detailed those claims further in the 2016 Statement (“2016 Statement”). There, he said he became inadvertently involved in visa fraud in India; he was named in legal documents relevant to that fraud; and he was and continues to be pursued for serious harm by those involved in the fraud and by people who lost money in connection with it; on relocation to Bangalore, he was located and beaten; he was also located in his home village of [Village 1]; he then left India for Australia. He fears serious harm from the same people if he returns to India.
In support of their claims, the applicants submitted to the Department a number of documents which are claimed to evidence the charges “falsely framed” against A1.[6] Those documents are detailed and considered further below.
[6] 2016 Statement
Delegate’s Interview and Decision
A1 was interviewed by the Department on 6 February 2019 (“the Interview”) in respect of his protection claims. The Interview was conducted with assistance from an interpreter in the Hindi and English languages. Material aspects of that interview have been recorded in the Delegate’s Decision. I have listened to an audio recording of the Interview and am satisfied that the Delegate’s Decision accurately reflects what was said at the Interview.
During the Interview A1 added that his problems in India arose while he was employed at a courier/money transfer/moneylending business in Ludhiana, Punjab, named [Business 1]. At [Business 1], he was employed by [Mr A] and [Mr B]. In the course of his employment at [Business 1], A1 received around [amount] lakhs from customers ([Customers A]), for onward transfer to [Person A]; on instruction from [Mr A] and [Mr B], A1 transferred most of that money to [Person A] in Delhi and Kolkata, but retained around [amount] at his home for onward transfer at a later time. A1 was unaware then that the money was related to visa fraud. A1 was arrested by police and detained, together with others, including his [Relative A] (who also worked at [Business 1]). A1 found out then that [Business 1] was involved in an illegal business. A1 paid police around 7 or 8 lakhs to secure the release of his [Relative A]. He also paid them another 4 or 5 lakhs for his own release, but they did not release him. Instead, they named him in a First Information Report (“FIR”) and included him in a court case, implicating him in visa fraud. A1’s family engaged a lawyer and secured his released on bail after more than [number] days in jail. He was hit by police in jail. On his release, A1 was required to report monthly to the Indian authorities. A few months after A1’s release, [Mr A] and [Mr B] came to his family home in [Village 1] to collect the [amount] he had retained. This was in mid to late 2014 and A1 was living there at the time. A1 did not have their money as he had used it to pay the police and to cover his bail. [Mr A] and [Mr B] threatened A1 for return of the money. A1 continued to live at his family home in [Village 1] for another 4 or 5 months without incident and then relocated to Bangalore for work, taking A2 and their child with him. A1 was located in Bangalore by people sent by [Mr A] and [Mr B]. Those people threatened him to return the [amount] and pulled his shirt on one occasion. A1 relocated with A2 and their child to his uncle’s home in [Village 2], Gujarat. Although he was not located there, he felt he would be found eventually, and came to Australia with A2. While he was in Australia, people approached his father seeking A1’s portion of land in lieu of repayment of the money he was perceived to owe them. They only approached his family on one occasion. He fears returning to India as these people will continue threatening him for repayment of money they believe he owes them. In addition, people had given [Customers A] the money they deposited at [Business 1] on the basis that the money would cover the costs of their sons getting overseas visas. However, the money was not used for that purpose and the boys never went overseas. In court documents for a lawsuit commenced regarding the visa fraud, A1 was mentioned, implicating him in the fraud. As a result, A1 was targeted for harm by those who lost money in the fraud. A1 fears serious harm from those people.
In finding that the applicants are not persons in respect of whom Australia owes protection obligations, the delegate doubted the credibility of several material facts and was not satisfied that A1 faced a real chance of persecution for any reason claimed or arising on the evidence. As no protection claims were advanced or identifiable for A2, the delegate was not satisfied that either applicant is a refugee under s 5H of the Act. The delegate was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to India, there is a real risk that either applicant will suffer significant harm.
Claims and Evidence Before the Tribunal
During the review A1 maintained the claims raised before the Department, that he fears serious harm from his former bosses ([Mr A] and [Mr B]), and from the families of the boys who lost money in the visa fraud A1 was implicated in. He also fears the legal case against him may resume.
Documentation in Support
In support of the protection claims, the following documents were submitted to the Department:
a.the 2016 Statement;
b.a [Court 1] document regarding a petition for bail by [name matching A1’s first name] (identified there as the Petitioner) against the State of Punjab (identified there as the Respondent), showing “date of decision” [in] 2014 (“2014 Order”). A1 claims that he is the Petitioner identified. The 2014 Order:
·disposes of a petition for grant of bail relating to an FIR dated [in] March 2014;
·indicates that the case was registered on the statement of [Mr C] “who was alleged to have been duped of a certain amount of money on the pretext of sending his son to a foreign land”. The allegation includes that [Mr C] got in touch with another person named [the same name] “who was running a [business] and also doing the work of [an occupation 1]”; implicates [an occupation 1] named [Mr D] and a [Person A], based in Kolkata “to whom money is sent for facilitating sending of people abroad”;
·in respect of the Petitioner, states “the only allegation against the present petitioner is that he was doing the work of [money transfer] and certain money has been transferred to such business which the petitioner is indulged in”; the Petitioner was arrested [in] March 2014; even the complainant alleges “there is no role whatsoever attributed to the present Petitioner as regards having received money directly from the complainant. There are no allegations with regard to any direct or indirect role having been played by the present petitioner in facilitating sending of the son of complainant to any foreign country”. The 2014 Order concludes that “without expressing any opinion on the merits of the case, the Petitioner is held entitled to the concession of bail. Petition, accordingly is allowed” and the petition is disposed of.
The following additional documents were submitted to the Tribunal:
a.an affidavit by [Mr E], identified as a partner at [Business 2], dated [in] April 2014 (“[Mr E] Affidavit”). It declares that:
·[Business 2] is “run by us”;
·the main object of [Business 2] is “transferring and transacting in liquid assets of businessmen from one place to another by charging commission”, as well as being a courier service;
·the main business office is in Ludhiana and commenced in January 2014;
·[A1’s name] “is looking after the management and routine day to day transaction of the branch”;
b.a [Business 2] registration certificate, dated [in] February 2013, certifying that [Mr F] is the owner of [Business 2], located in [Town 1]. A 2013 tax record for [Business 2] was also submitted;
c.an English translation (from Punjabi) of a statement from [Mr C] (“[Mr C] Statement”), stamped “Notary Public, Government of India...Ludhiana”, stating:
·[Mr C] is a resident of [District 1] District;
·another person named [Mr C] runs a shop in [District 1] named [Business 3], as well as a travel agency;
·based on what people have told [Mr C], he believes the above travel agency is involved in sending individuals overseas;
·[Mr C] paid an agent(s) money to send his sons overseas, but they were not actually sent overseas;
·legal/police action is being taken or intended against those agents;
·a case has been registered against the [Customers A], [Person A] and [A1], Ludhiana. [A1] is identified as an agent in Ludhiana through whom money is sent to [Person A] in Kolkata. A1 claims that he is the [name] referred to.
d.an FIR dated [in] March 2014 which refers to offences occurring between [February] 2014 and [March] 2014 [in District 1]. The complainant is [Mr C]. The suspects are not identified.
Relevant to the above documents, I discussed with A1 that country information reports a very high prevalence of fraudulent documents from India.[7] I explained that, while the Tribunal does not assume that all documentation from India is fraudulent, the reported high prevalence of fraud is a relevant consideration in the Tribunal’s assessment of the weight, if any, it can give to such documents. I discussed with A1 that all the Indian documents submitted are English translations; and the original language documents have not been submitted. He responded that he does not have the original language documents; the English translations were obtained in India; they were the only copies sent to him. I explained that, without copies of the original documents, the Tribunal is unable to assess their visual characteristics, such as format, stamps, headers/footers and other marking which may assist in assessing their genuineness. On how he obtained the documents, he said his brother got them with help from a lawyer and sent them to Australia with a visiting friend.
[7] Australian Department of Foreign Affairs and Trade Country Information Report, India 29 September 2023, includes that “Document fraud is a common criminal activity. It is not difficult to obtain fraudulent documents. For example, a passport might be based on only one other form of identification. Organised networks of agents are known to provide complete packages of fake documents. For example, The Times of India reported in February 2019 the arrest of five persons in Hyderabad for fabricating documents and official stamps, and helping people obtain visas for Western countries.”
Regarding the relevance of the documents, he said the [Mr E] Affidavit is from one of the owners of [Business 1], where A1 worked at the time he was implicated in visa fraud; [Business 1] was run by [Mr F], [Mr A] and [Mr B]. When he was hiding in Punjab, he did not have money, so he wrote to his bosses at [Business 1], asking them for a letter showing that he worked for them. On why the Affidavit refers to him working for a business named [Business 2], not [Business 1], he said that it is the same company. It had many offices throughout India. The one he worked for in Ludhiana was called [Business 1]. On why he wanted a letter from that company, he said he wanted to show he is innocent; he presented the [Mr E] Affidavit to the Court in India in relation to the fraud case he was trapped in.
Hearing: 16 July 2024
Only A1 appeared before the Tribunal on 16 July 2024 to give evidence and present arguments. The hearing was conducted with assistance from an interpreter in the Gujarati and English languages. Early in the hearing A1 confirmed that he understood the interpreter and that he feels well and able to discuss his circumstances. Both A1 and the interpreter were asked to inform the Tribunal as soon as possible should any difficulties in communication become apparent. Throughout the hearing A1 demonstrated his ability to communicate effectively through the interpreter.
Prior to the hearing the applicants notified the Tribunal that A2 is pregnant and unable to attend the hearing. However, they indicated that A2 would be available to give evidence by telephone during the hearing should that be necessary. The applicants did not request that A2 gives evidence as a witness. The Tribunal did not call A2 to give oral evidence at the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
Nationality
Each applicant claims to be a national of India and of no other country. They each declare in the PVA that they have no right to enter or reside in any other country either temporarily or permanently. The identity and nationality of each applicant is confirmed in the passport copies submitted to the Department. A1’s passport was issued in [City 1] in [2015]. A2’s was issued in [City 1] in [2015]. I consider the passport copies to be reliable evidence. I find that A1 and A2 are nationals of India and of no other country and that their identities are as claimed. Accordingly, India is the receiving country against which the protection claims have been assessed.
Member of the Same Family Unit
In A1’s passport, A2 is named as his spouse. On that basis, together with the consistency of the information given by the applicants regarding their relationship status since lodging the PVA, I accept that the applicants are spouses and members of the same family unit: s 5 of the Act.
Background
On the basis of generally consistent evidence given by the applicants since lodging the PVA, I accept that A1 was born in [specified year] in [Village 1], [Town 1], Gujarat, India. He has been an Indian citizen since birth. He speaks, reads and writes in Gujarati, Hindi and English. He is Hindu. His primary and secondary education was undertaken entirely in Gujarat.[8] He married A2 in 2011 in [Village 1]. His family members, not including A2, are his father, mother, [siblings] and [child] (born in [year]). These family members lived in India at the time the PVA was completed and continued to do so at the time of the hearing. A1 has been in regular contact with them since coming to Australia in November 2016. During the hearing he said they are in weekly contact.
[8] PVA answer 85
A2 was born in [year] in [Village 3], [Town 1], Gujarat, India and has been an Indian citizen since birth. She has no employment history in India. Her family, not including A1 and their [child], comprises [number] people whose relationship to A2 is not specified in the PVA. All these family members reside in India.[9]
[9] PVA answer 42
During the hearing A1 said that he and A2 departed India and arrived in Australia together in November 2016. They had never left or tried to leave India before applying to visit Australia in around October 2016.
A1’s passport, issued in [2015], was not the first Indian passport he held. He had an earlier one which was valid for 10 years. He applied for his 2015 passport through the same channels that all Indian nationals use. He had no trouble obtaining his passport. Both A1 and A2 used their passports to depart India legally in 2016 and had no difficulties doing so. Their trip to Australia cost 4 or 5 lakhs. A1’s father covered the costs.
When A1 left India in November 2016, his parents were living in the house they raised him in in [Village 1], together with the applicant’s [brother]. They continue to live there together. A1 has not known his parents to have ever lived elsewhere. [Another sibling] lives near them, with [their own] family. The applicants’ [child] lives with A2’s sister in [Village 1]. A2’s parents also live near there.
When A1 left India in 2016, his parents were financially reliant on their land in [Village 1]. They owned a few head of cattle and sold milk. His father financed the applicants’ journey to Australia through a bank loan which was fully repaid from money A2 remitted from Australia. A1’s family now relies financially on their expanded farmland and the applicants’ remittances from Australia. A1’s brother helps work the farmland. A1 and A2 have worked in Australia since a few months after their arrival in 2016. A2 has recently stopped working due to pregnancy. The applicants’ remittances allowed A1’s family in India to purchase extra farmland in 2018 (for 20 lakhs), and to build a new home (for another [amount]), which was completed in 2023.

A1 presented the above evidence without hesitation at hearing. I accept the above background details as true.
Other aspects of A1’s background details, however, are problematic. They include inconsistent information given regarding A1’s movements and employment in India, which are more directly relevant to his protection claims. That evidence is considered further below.
Protection Claims
During the hearing I asked A1 whether he has any fears of serious harm in India now or in the reasonably foreseeable future. He said he fears harm from the boys whose families lost money in connection with the visa fraud he was implicated in. These boys got together to look for him, believing he took their money. He also fears harm from his former [Business 1] employers, [Mr A] and [Mr B], who followed him to Bangalore to assault him. He does not fear harm from anyone else in India. He does not fear harm for any reasons other than his perceived involvement in visa fraud which took place during his employment at [Business 1]; and his failure to repay [Mr A] and [Mr B] the money he took home from [Business 1] in the sum of around [amount].
Relevant to his PVA claim that he was chased by the police and authorities in India in relation to charges against him, A1 did not, at this stage of the hearing, identify any fears of harm from the Indian police or authorities for any reason.
Preparation of PVA and Supporting Documents
Regarding A1’s PVA being lodged very soon after his arrival in Australia, I asked A1 how he knew which visa to apply for and which form to complete. He said he had a friend in Australia named [Friend A], who was a permanent resident. He then corrected the name to “[name]”. That person collected him from the airport and took him to [Town 2], introducing him to an RMA named [Representative A]. A1 paid [Representative A] for assistance with his PVA, 2016 Statement and the Review Application.
I asked A1 how he can be confident that the completed PVA and 2016 Statement, which are entirely in English, are true and correct. He said he gave the agent all the details including his addresses, work history, education, and the substance of the 2016 Statement; the agent put the details in the PVA and 2016 Statement; before he signed those documents, the RMA explained what was written in them. The RMA was fluent in English and Gujarati.
I asked A1 whether he has read and understood the Delegate’s Decision. He said his RMA read it to him. I explained that the Delegate’s Decision sets out evidence he is said to have given orally at his Interview; and asked whether, as far as he knows, the Delegate’s Decision incorrectly records any of that evidence. He responded only that he does not agree with the delegate’s view that he could relocate in India; his former bosses are very active politically and could find him throughout India; they came for him in Bangalore.
Employment at a Company Engaged in Visa Fraud
A1 claims that he became inadvertently involved in visa fraud during the course of his employment at [Business 1] in Ludhiana. In explaining the relevance of documents submitted to the Tribunal in relation to a company named [Business 2],[10] A1 told the Tribunal that this and [Business 1] were owned by the same people, namely 4 individuals named [Mr F], [name], [Mr A] and [Mr B]. He said [Business 2] owned many similar businesses throughout India; the one he worked for in Ludhiana was using the business name [Business 1] and was run by [Mr A] and [Mr B]. Those businesses transferred money throughout India. On why he does not appear to have mentioned [Business 2] before submitting these documents to the Tribunal, he said he thinks he did mention it in his 2016 Statement. There is no mention of [Business 2] or any similarly named business in that statement.
[10] Detailed at paragraph 16(a) and (b) above
Relevant to these claims, A1 declared in the PVA that he lived in Ludhiana, Punjab, only from July 2014 to November 2015. However, he has submitted supporting documents which he says implicate him in visa fraud transactions occurring at his workplace in Ludhiana between February and March 2014;[11] and claims he was detained in relation to those transactions between March 2014 and May 2014. However, according to his PVA, he was not working or living in Ludhiana at those times.
[11] Contained in the FIR submitted by the applicant, referred to in paragraph 16(d) above
Also relevant to this, A1’s declared work history in his PVA is identified only as administration work in private finance in Ludhiana, for an undisclosed period during unspecified dates.[12] The lack of detail given in the PVA regarding his employment in India is curious given the centrality of his employment to his protection claims.
[12] PVA answer 84
Also relevant to A1’s movements and employment in India, during the hearing A1 said that he lived and worked in Bangalore for a period of 2 years, ending around 3 or 4 months before he left India in November 2016. This places him in Bangalore from around September 2014 to September 2016, and in Ludhiana prior to that. This does not accord with his PVA which places him in Ludhiana only until November 2015, and in Bangalore after that.
When, toward the end of the hearing, I discussed with A1 that the seemingly changing and inconsistent evidence he has given regarding his movements and employment history in India may undermine the credibility of his protection claims which appear to arise entirely from his claimed employment at [Business 1] in Ludhiana, he offered nothing to address this concern. While I am mindful that over 10 years have transpired since 2014, when A1 claims relevant events (such as the visa fraud transaction and his detention in India) occurred, given the centrality of those events to his protection claims, and his submission of documentation detailing relevant dates, I consider those inconsistencies significant in undermining the credibility of the claims made.
Regarding A1’s role at [Business 1], his evidence also varied over the course of the PVA and Review process. For instance, his PVA identifies him undertaking only administration work in India for an unidentified period. His 2016 Statement refers to him as an “employee” of an unnamed company in Ludhiana which was involved in money transfers. Despite being an employee, the 2016 Statement also says he “closed down this business” and moved to Bangalore when the problems arose in Ludhiana. During his Interview, A1 is recorded as saying that his role at [Business 1] did not involve the actual delivery of money; other employees at [Business 1] performed that role, delivering cash to various locations by train or bus; his role was generally to count money and keep records of the money transacted through [Business 1].[13] However, his 2016 Statement says that, in relation to the exchange giving rise to the visa fraud allegations against him, he actually received the money in Ludhiana AND delivered it to Delhi and Kolkata, albeit on instruction from his bosses. He maintained those claims in his Interview and in his oral evidence at hearing. When pressed on why he delivered the money to Delhi and/or Kolkata on this particular occasion, given that his role did not ordinarily include delivery of money; and why he retained around [amount] of [Business 1’s] money at his home for transfer to others at a later time, he said he was the [Business 1] office manager. He submitted to the Tribunal the [Mr E] Affidavit, which also referred to him as the person looking after the “management and routine day to day transaction of the branch”. When asked why his 2016 Statement and PVA do not identify him as a manager at [Business 1], he responded that he thought he had mentioned it before. In the context of his earlier evidence regarding his involvement in the preparation of his PVA and 2016 Statement, this is difficult to accept as true.
[13] Set out in the Delegate’s Decision and confirmed in the audio recording of the Interview, which I have listened to
The evolving nature of A1’s evidence regarding his actual role at [Business 1] raises concerns about the truth of his actual and/or perceived involvement in the visa fraud transactions identified.
Personal Involvement in Visa Fraud
The nature of A1’s claimed involvement in the visa fraud, as articulated by A1 before the Department, is outlined in paragraphs 9 and 12 above. During the hearing A1 said his problems arose after [Customers A] delivered a significant sum to [Business 1]; A1 took receipt of that money while working at [Business 1]; the money was to be delivered to [Person A] in Delhi and Kolkata; A1 delivered part of that money on instruction from his bosses ([Mr A] and [Mr B]), but kept/hid a significant portion at his home, for onward transfer to other businessmen at a later date. His evidence was that he did not know at that time, that the money was to be used for fraudulent means. In this context, it is curious that he says he “hid” the money at his home.
Regarding the amount of money A1 hid at his home, the Delegate’s Decision (also confirmed in the audio recording of the Interview) records A1 saying the sum was around [amount range]. It also records that he paid 7 to 8 lakhs to police to secure the release of his brother, who was detained with him; and he paid a further 4 or 5 lakhs for his own release, but the police did not release him, holding him for around [number] days. During the hearing A1 was unclear about how much money he hid at home, but said that money was from [Business 1]; it had been delivered by [Business 1] customers and was “lying there”, so he took it to his home. This is of concern to the Tribunal given that the amount he took home from [Business 1] is the amount he says they have threatened him about since 2014, seeking its repayment.
His oral evidence at hearing continued that he used around 7 or 8 lakhs of that money to pay police for his [Relative A’s] release, as he and his [Relative A] (not his brother as identified before the Department) were arrested together by police. He told the Tribunal that, after paying for his [Relative A’s] release, he never paid the police any more money at any time.
I explained to A1 that his evidence that he never paid any more money to police at any time does not seem consistent with the evidence he is recorded to have given at his Interview, to the effect that he paid police a further sum of 4 or 5 lakhs for his own release.[14] He said that they asked for this second payment, but he did not pay it; the interpreter at the Interview was not very good. This was the only time he raised concerns regarding the interpreting at Interview. In considering this evidence, I note that A1 claims to have hidden up to [amount] of [Business 1] money at his home. If he used 7 or 8 lakhs to pay police for his [Relative A’s] release, this would have left a balance of up to [amount range] lakhs at his home. In these circumstances, it is curious that he would not have paid police a further sum of 4 or 5 lakhs for his own release if asked. In the context of this and all the evidence advanced, I consider A1’s explanation for the seeming variances in his evidence regarding his payments to police during his claimed detention unconvincing and problematic. I am also concerned about A1’s inability to recall at hearing, how much [Business 1] money he hid at his home, given that he identifies repayment of that sum as the only reason he has been pursued for harm by his former bosses.
Arrest, Detention and Fears of Serious Harm Arise: 2014
[14] This is detailed in the Delegate’s Decision, which reflects the content of the audio recording I have listened to
During his Interview, as recorded in the Delegate’s Decision, A1 said he was arrested by police soon after having received money from [Customers A] at [Business 1]. By then he had already delivered a large portion of it to [Person A] in Delhi and Kolkata; and despite not knowing that it was for fraudulent activity, was hiding around [amount] of it at his home, for onward transfer to other businessmen later. He is recorded in the Delegate’s Decision, saying at Interview (confirmed in the audio recording of that Interview) that the police arrested [Customers A] as well as A1 and his [Relative A]; the police were looking for [Mr A] and [Mr B], but could not locate them; this meant that A1 took all the blame for the fraudulent business of [Business 1]; A1 was jailed for more than [number] days in relation to these allegations and was ultimately released on bail paid by his family with assistance from a lawyer.
During the hearing A1 said that he was jailed/detained on only one occasion in India, for around 3 months. The jail was located in Punjab. He said his [Relative A], not his brother, was initially jailed with him, as they worked together at [Business 1]. A case was made against both of them in relation to the visa fraud. However, his [Relative A] was released without charge soon after A1 paid the police. A1 was not released until around 3 months later and was named in an FIR and court documents. Ultimately, his family paid bail for his release.
A1 told the Tribunal that his fears of serious harm in India arose when he was named in legal documents regarding the visa fraud. This implicated him in the matter and made him a target for harm by people who lost money in the fraud. He was already being targeted by his former bosses, [Mr A] and [Mr B], who wanted him to return the money he took home from [Business 1]. He could not repay that money because he had used it to pay police for his [Relative A’s] release. As noted above, however, he told the Tribunal that he only used 7 or 8 lakhs of it for that purpose, which would leave a significant balance.
Relevant to the timing of A1’s fears of serious harm in India arising, I discussed with A1, that, according to the 2014 Order submitted, the Petitioner, who he says is himself, was detained in March 2014 and released in May 2014. I asked whether that is the general timeframe when his fears of serious harm in India first arose. He said it is. He said he was never detained or taken into custody after being released in May 2014. He introduced new evidence that, on his release in May 2014, he had to report to police every month. He last reported in 2015 or 2016, even though the reporting requirements were ongoing. Despite this, he said he had no trouble getting his passport in [2015] or departing India using his true identity in November 2016.
I discussed with A1 the detail of the 2014 Order, including that it appears to absolve the Petitioner from involvement in any substantive visa fraud activities; and states that, even the complainant (i.e. [Mr C]) alleges “there is no role whatsoever attributed to the … Petitioner as regards having received money directly from the complainant. There are no allegations with regard to any direct or indirect role having been played by the present Petitioner in facilitating sending of the son of complainant to any foreign country”. I explained that, if the 2014 Order is accepted as a genuine document and if it is accepted that he is the Petitioner identified, it seems to record the court’s view that he was not involved in visa fraud. A1 agreed with that interpretation. I asked why, in that context, he believes he would have been perceived, after that time, as responsible for the visa fraud. He responded that people blame him because he received the money at [Business 1].
I asked why he believes anyone aggrieved by visa fraud in which [Business 1] and/or its owners and other businesses and parties were involved (and named in the legal documents submitted), would pursue A1 personally, rather than [Business 1], [Business 2] and/or its owners and/or other identifiable parties with substantive involvement. He responded that people think he was sitting at [Business 1] and they doubt him. On how many people were working at the [Business 1] office when he received money from [Customers A], he said there were 3. He named them as himself, [Employee A] and [Employee B]. He said [Mr A] and [Mr B] were the owners, but not always physically present. On whether [Employee A] or [Employee B] were also suspected, he said they were not. Their only job was to count the money. However, as noted in the Delegate’s Decision, during the Interview A1 said that his role was also restricted to counting and recording money, not delivering it, making it difficult to accept that he did in fact deliver money to Delhi or Kolkata and/or keep any [Business 1] money at his home. When I asked A1 about this and why he would have been singled out for blame or harm if his normal role at [Business 1] was the same as [Employee A] and [Employee B’s], he repeated that he was the one who took the money from [Customers A] when it was delivered to [Business 1].
The concerns detailed above compound the Tribunal’s other concerns relevant to the credibility of central aspects of A1’s claimed circumstances, including whether he was ever involved or implicated in visa fraud in India, and ever detained in relation to it.
Pursued by Indian Authorities
Relevant to the claims in his PVA that “the authorities and police were chasing me” and that they framed A1 in a false case, I discussed with A1 that those claims are difficult to reconcile with the seeming ease with which he was able to depart India in November 2016; and with the 2014 Order which seems to absolve him of substantive involvement in any fraud.
Regarding his seeming ease of departure from India, I explained that this may suggest he was not of adverse interest to the Indian authorities at that time; and may undermine the credibility of his claim that he was under an ongoing obligation to report to the authorities at that time. He responded that he was not of interest to the Indian police or authorities at that time; he does not fear harm from them. I asked whether he has ever been fearful of the Indian authorities. He said “No”. However, he introduced new evidence that, since coming to Australia, the police in India went to arrest him when he did not report to court. As to why he thinks he was able to depart India without incident if he was still under an obligation to report at that time, he said he just managed to escape; no one checked his details online. Later in the hearing A1 added that, if he returns to India, he worries the police case against him will start again. These claims and evidence are unconvincing in the context of A1’s evidence, given moments earlier, that he was not of adverse interest to the Indian police or authorities and has never feared them. That evidence also undermines his claim that he was hit by police while detained, and also undermines the credibility of his claimed arrest and detention by police more generally.
In the context of A1’s oral evidence regarding his involvement in the preparation of his PVA, I find it concerning that the PVA contains claims about the Indian police and authorities chasing him and framing him in a false case, which A1 appeared to deny the truth of during the hearing. I also consider A1’s ease of departure from India using his true identity difficult to reconcile with his claims that he was under an ongoing obligation to report to the authorities at the time; that he was ever chased or framed by the Indian authorities/police; and that the Indian police or authorities ever “went to arrest him” for not reporting to the court. I consider the above evidence to undermine the truth of his claimed fear that any police case might resume against him on his return to India.
Delay in Departing India
Relevant to A1’s claims that he has feared serious harm in India since around March 2014 (when the 2014 Order says the Petitioner was detained), I asked A1 why he did not try to leave India sooner than November 2016, given that he had his current passport since [2015], and an earlier passport before that. I explained that his delay in taking steps to depart sooner may be considered inconsistent with his claimed fears of serious harm in India since March 2014. He responded that, during his last 2 years in India, “those people” did not know exactly where he worked and lived. Then they followed him.

His evidence was that they approached him directly one time, which was after his release on bail in mid-2014, while he was living at his parents’ home in [Village 1]; on that occasion [Mr A] and [Mr B] asked him to return the money he had taken home from [Business 1]; and threatened to harm him if he did not. He told them he couldn’t return it as he spent it on police payments. He said he was also approached in Bangalore (considered below).
Despite A1’s evidence being that these people knew where his family home was in [Village 1] (where his parents have continued to live since those claimed events), as detailed below, he said that no one made any further approaches to his family in search of him or to recover any money while A1 remained in India. Instead, as detailed below, he said they only approached his family again after he came to Australia, in early 2017, and not since.
Last 2 years in India: Bangalore and [Village 2]
Regarding A1’s movements in India, A1 declared in the PVA that he lived in Bangalore briefly from November 2015 to December 2015, while A2 declares in her PVA that she lived there from November 2015 until November 2016,[15] being when the applicants came to Australia. This is relevant to A1’s evidence at hearing that he left Bangalore around 3 or 4 months before coming to Australia in November 2016 because he was located and threatened there.
[15] PVA answer 81
During the hearing I asked A1 where he lived and worked immediately before coming to Australia. He said he lived and worked in Bangalore for around 2 years, ending around 3 or 4 months before he came to Australia in November 2016. He lived there with his wife and child. He spent his last 3 or 4 months in India living at his uncle’s house in [Village 2], together with A2 and their child. In [Village 2] he worked on his uncle’s farm. He was not harmed or threatened there.
Regarding his 2 or so years in Bangalore, A1 said at hearing that he worked for 2 companies there. Initially he worked for 2 months at a company named [Business 4]. He then joined his friend’s company named [Business 5]. [Mr A] and [Mr B] followed him to that workplace together with [Mr C] and all the “other people” who were after him. They wanted A1 to return their money. When they found A1 at [Business 5], they slapped him and broke the buttons on his shirt. His colleagues came to help and the attackers ran away. A1 said he was not harmed or directly threatened on any other occasion in Bangalore or in India generally.
I asked whether this incident in Bangalore was the first time he was ever physically harmed in India. He said it was. Again, this undermines the truth of his claim that he was hit by police in India. He said that, after the Bangalore incident, his parents told him to return to the family home in [Village 1]. However, he went to his uncle’s house in [Village 2] first, and only returned to his parents’ home in [Village 1] after his Australian visa was granted (in around October 2016). He was not followed or harmed there.
I discussed with A1 that the Delegate’s Decision identifies concerning changes in his evidence regarding his experiences in Bangalore. Specifically, the Delegate’s Decision notes that, in the 2016 Statement, A1 says that he was followed to Bangalore and “beaten” by people who considered him at fault for their lost money; in the Interview, he stated initially that he was threatened in Bangalore on two occasions, but never physically harmed there; but when the delegate put to him that this information seems different from what is in his 2016 Statement, he said that the people who followed him to Bangalore caught him by the collar, then ran away; when asked again by the delegate whether he was physically harmed in Bangalore during the time he worked and lived there, he replied “no”. During the hearing I explained to A1 that, in addition to the above concerns noted in the Delegate’s Decision, he seems to have given a third version of his experiences in Bangalore during the hearing, to the effect that he was found there on one occasion by those pursuing him, during which time he was slapped and had the buttons of his shirt broken. As to why the accounts of his experiences in Bangalore seem to have changed over time, A1 said he did not sustain any large injuries in Bangalore, so he did not mention them initially during the Interview. The applicant’s changing evidence regarding his adverse experiences in Bangalore, are difficult to reconcile with true lived experience, and cast doubt on the credibility of his claims that he was pursued for harm and/or actually harmed in any way by anyone in Bangalore.
Approaches since Departure in November 2016
Early in the hearing, while exploring his general background, prior to discussing his specific claims for protection, I asked A1 whether anyone in his family in India has had problems there relevant to his protection claims. He said they have. When [Mr A] and [Mr B] found out he had left India, they went to his parents’ home and verbally abused his father on two or three occasions. This was in early 2017. They did nothing more than verbally ask for money and for A1’s whereabouts. He said there have been no adverse approaches of any nature to A1’s father, family, or any former colleagues since early 2017. Nor has anyone contacted A1 directly about any matters relevant to his protection claims.
He said that, in their interactions with his father in early 2017, [Mr A] and [Mr B] said A1 must return the money he took from [Business 1]. Regarding the sum they were asking for, he did not identify a figure during the hearing, but said they wanted all the money he had taken home from [Business 1] in 2014. Later, they asked his father for A1’s portion of land in lieu of repayment. Now, they agree to A1 returning only [smaller amount] lakhs. His evidence about this reduced sum they will “now” accept is difficult to reconcile with his claim that there has been no contact from these people since early 2017, over 7 years ago.
He said his father persuaded [Mr A] and [Mr B] in early 2017 that A1 is not in India and does not have money to pay them anything. His father also threatened to tell the police if they continue approaching him. In this context I asked A1 why he believes he faces a real chance of serious harm in India now or in the reasonably foreseeable future. He responded that those people are waiting for him to return to India. This, however, appears speculative, given A1’s evidence that there has been no contact from them since early 2017.
As to whether he thinks his risk of harm from [Mr A] and [Mr B] would be extinguished if he pays them [the smaller amount], he said that he should not have to pay it, as he used that money in the course of problems arising from his employment with them. He added that, even if he pays that money, he would still face a risk of harm from people who lost money in the visa fraud. They want him to repay them [amount] lakhs which they lost in the visa fraud.
Credibility Concerns
I discussed with A1 that the Tribunal’s first task in assessing his Review Application is to assess the credibility of the material facts on which his protection claims rely. I explained that cumulatively significant concerns arise relevant to the credibility of those circumstances; those concerns have been discussed throughout the hearing, and relate to changes and inconsistencies in his evidence regarding his movements and employment in India; the detail of his claims such as the nature of his role at [Business 1], how much money he took from [Business 1], how much money he paid police; his changing evidence regarding whether he has ever feared the police or authorities in India; his ease of departure from India; his delay in taking steps to leave India for around 2 years after he claims his fears of serious harm arose; the lack of adverse approaches to his family whose whereabouts he claims has been known to those he fears harm from since 2014. As to whether he wishes to say anything regarding the concerns raised regarding the credibility of his claims, he said he does not.
Factual Findings
Based on all the evidence before me, I consider the cumulative concerns detailed in this decision to be significant, and to not be overcome by A1’s responses or by the evidence overall. Based on the evidence before me I do not accept that A1 worked at a business which was implicated in visa fraud. I do not accept that A1 was personally involved in or implicated in visa fraud, including through his employment. I do not accept that he delivered money linked to any visa fraud. I do not accept that he took a large sum of money home in the course of his employment with [Business 1] which his bosses have ever considered to be their money. I do not accept that he was ever arrested, detained, bailed or required to report to authorities in India in relation to those claimed transactions. I do not accept that he was named in any genuine legal proceedings or official documents as a person involved in fraudulent activities. I do not accept that he had any actual or perceived involvement in any fraudulent activities in India. I do not accept that he was ever threatened, pursued or harmed in India in connection with those claimed matters, including by his former bosses ([Mr A] and [Mr B]), [Customers A] and/or any other people he claims were aggrieved by his actual or perceived involvement in these matters. I do not accept that his family was approached by anyone seeking money or information about A1 in relation to those claims.
In making the above findings I have carefully considered the supporting documentation submitted by the applicants. As discussed at hearing, reliable country information from the Department of Foreign Affairs and Trade reports a high prevalence of fraudulent documentation from India. In addition to this, the applicants have submitted only English language translations which A1 says were obtained in India; and that he has never had a copy of the original language documents. He has given evidence which is inconsistent with multiple aspects of the supporting documents submitted, including the timing of his work at [Business 1] and his arrest/detention arising from it. While claiming that his bosses at [Business 1] did not engage with police about the allegations of fraud at [Business 1], leaving him to take all the blame, he submitted the [Mr E] Affidavit including business details which suggest engagement by them in the claimed proceedings. While he claimed that he was implicated in visa fraud, he submitted the 2014 Order which, in substance, absolved him from involvement in those matters. He submitted an FIR which did not identify the suspects or name A1 and submitted the [Mr C] Statement (identified as being from the complainant who commenced proceedings relevant to the 2014 Order) which the 2014 Order says makes no allegation that A1 played any substantive part in the visa fraud. In the context of all the evidence, I do not accept that the 2014 Order, the [Mr E] Affidavit and related business registration/tax documents, the [Mr C] Statement and/or the FIR dated [in] March 2014, are genuine documents.
On the evidence before me, I do not accept that A1 faced in the past, or faces now or in the reasonably foreseeable future, a real chance of serious harm in India in connection with any actual or imputed visa fraud, business fraud, or in connection with him taking money perceived to belong to his former bosses. I do not accept that he has ever faced a real chance of serious harm for any of the reasons claimed, or that he faces a real chance of serious harm in India in the reasonably foreseeable future for those reasons or any other identifiable reason.
Findings on the Refugee Criterion
A refugee is a person who is found to have a well-founded fear of persecution in their country of reference. A fear is well-founded if there is a factual or objective basis for that fear or if there is a ‘real chance’ of it occurring. A real chance is a substantial, as distinct from a remote chance 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 per cent. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
As reasoned above, I am not satisfied that A1 faces a real chance of serious harm in India in the reasonably foreseeable future for any identifiable reason. No protection claims arise in respect of A2. I am therefore not satisfied that either applicant faces a well-founded fear of persecution in India under s 5J of the Act.
Findings on Complementary Protection
Having found that the applicants do not meet the refugee criterion, I have considered whether on the evidence before me, there is a real risk either applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to India. The threshold for assessing “real risk” is the same as for assessing “real chance”.
As reasoned above, I have found that A1 does not face a real chance of serious harm in India for any reason identifiable on the evidence. Based on the same factual analysis and findings as set out above, I am also not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of A1 and/or A2 being removed from Australia to India there is a real risk they will be arbitrarily deprived of their life or suffer the death penalty, or be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
Conclusions
For the reasons given above the Tribunal is not satisfied that either applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Suhad Dutra
Member
ATTACHMENT
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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 5–5LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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 3975

5 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction