1905926 (Refugee)

1905926 (Refugee) [2024] AATA 4186 (4 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1905926
COUNTRY OF REFERENCE:                   India
MEMBER:Phillippa Wearne
DATE:4 September 2024
PLACE OF DECISION:   Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 04 September 2024 at 12:39pm
CATCHWORDS
REFUGEE – protection visa – India – political opinion and religion – member of Islamist party – social work with minority groups – supported friends’ inter-faith relationship – threatened and attacked – subject of fabricated criminal charge – general religious/political violence and some party members killed – inconsistent claims and evidence – returns to home country after working in another country – delay in departing after tourist visas granted – no political activity in Australia – members of family unit wife and Australian-born child – second Australia-born child not an applicant – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), 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
BACKGROUND

The applicant is a [Age]-year-old national of India. The second named applicant is his wife (the ‘partner applicant’) who is a [Age]-year-old national of India. They arrived in Australia [in] August 2016 as the holders of Tourist (Subclass FA-600) visas. They lodged applications for protection visas on 17 October 2016. The third applicant (the ‘child applicant’) was born in NSW, Australia on [Date].
On 20 February 2019 a delegate for the Minister of Home Affairs refused to grant the applicants protection visas 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 the protection visa application, the applicant was born in [Location 1], Kerala. The partner applicant was born in [Location 2], Kerala.
The applicant speaks, writes and reads English, Hindu and Malayalam. The partner applicant speaks, writes and reads Malayalam and reads and writes English. The applicant indicates schooling for 10 years and college for 4 years. The partner applicant completed 12 years of schooling.
The applicant provided the address of his family home in Kasaragod, Kerala where his family has lived for many years.
The applicants give their religion as Islam. The applicant gives his profession as [occupation 1].
The applicant claims to have mostly worked and resided outside of India from 2004 to 2015. He provided the following travel history and employment in his protection visa application:
·[July] 2013– [June] 2015, [Country 1] (2 years), employed in [occupation 1].
·[July] 2011– [July] 2011, [Country 2] (6 days).
·[July] 2011– [July] 2011, [Country 3] (3 days).
·[August] 2010– [December] 2010, [Country 1] (4 months), employed as [an occupation 2].
·[March] 2004– [July] 2010, [Country 1] (6+ years), employed as [occupation 3].
The applicant made written claims for protection which I have summarised as follows:
·In 2000 while studying at college, Akhil Bharatiya Vidyarthi Parishad (ABVP) party members attacked him because he helped a Christian girl, [Ms A]. ABVP is linked to the Bharatiya Janata Party (BJP). The police wouldn’t accept his complaint, saying that they do not stand up against the BJP.
·As he had become known to the BJP by this time for his social work with the Dalit and other backward communities,[1] the BJP approached him to join them. He was a member of the Muslim League party at this time. He rejected the BJP offer and instead joined the Social Democratic Party of India (SDPI). Because he rejected the BJP, threats of killing were made against him.
[1] A term used in Indian academic and legal discourse for historically dispossessed or economically vulnerable communities, not intended to be pejorative. Wikipedia, accessed 28 August 2024. < February 2010, he and his Muslim friend, [Mr B], attended [a] competition event near Kasaragod. [Mr B] was friends with [Ms C], a Hindu girl. That night [Mr B] and [Ms C] decided that they would live together after getting married. The applicant promised his full support to them. [Mr B] and [Ms C] continued their affair with face‑to‑face contact and through phone contact and letters.
·Shortly after the [competition], both [Ms C] and [Mr B]’s families found out about their interfaith love affair. [Ms C]’s father, who is a leader of [a BJP organisation] in Kasaragod, Kerala, organised people to question and attack the applicant about his support for the affair. The applicant was punched and beaten with sticks. His head and hands were bleeding, but he managed to run away with the help of passers-by. He went to hospital.
·The applicant reported this incident to the local police. However, they refused to make a written report on his claim. The police explained to the applicant that he would be charged if he raised any claims against [Ms C]’s father and advised him to leave. [Mr B] had had a similar experience the previous week.
·[Mr B] and [Ms C] ‘made a secret decision to marry’ and get away from Kasaragod and the applicant helped them leave on 1 February 2016. They moved to a different place every 15 days as people from the BJP would discover them wherever they moved. On 16 February 2016 the applicant was punched by 2 BJP members looking for the couple. They returned to Kasaragod on 2 March 2016. [Mr B] and [Ms C] stayed away in a rental room and the applicant ‘went home secretly’.
·Members of the BJP and Rashtriya Swayamsevak Sangh (the RSS), a Hindu nationalist organisation, questioned the applicant’s parents and the partner applicant at the applicant’s family home. On 5 March 2016 the applicant’s parents were told by BJP and RSS members that the applicant and the partner applicant would be killed.
·On 10 March 2016, people from the BJP and RSS as well as [Ms C]’s brother planned to kidnap the applicant. He was with his friend on a motorbike when they noticed a white van from a distance, so they escaped.
·From 10 March 2016 the applicant and the partner applicant no longer stayed at home because it was not safe.
·On 27 March 2016, the BJP and RSS gang kidnapped [Mr B] and [Ms C].
·The applicant considered the Kasaragod area was no longer safe. On 28 March 2016, the applicant moved to live with his uncle in Mumbai.
·On 7 April 2016, a group of BJP and RSS activists enquired about him at his uncle’s house in Mumbai and threatened to kill him.
·The applicant and partner applicant applied for Australian visas on 25 May 2016, which were granted 2 days later. They delayed leaving India while they sought funds from family and friends. During this delay period for fundraising, they stayed at a { farm} owned by a family friend. The applicants’ family and friends continue to be threatened about serious consequences if they return to India.
Departmental interview
The applicant attended a Departmental interview on 29 January 2019. A recording of the interview is held on the Department file. I have listened to it. The applicant provided the following information at the interview (other information provided is discussed in Analysis, reasons and findings, below):
·The ABVP, a substantial group of the BJP, wanted to take a revenge against him because he helped a Christian girl at the college in 2000.
·He lived overseas from 2004 until 2015. He otherwise only travelled for short periods to [Countries 2 and 3] in 2010. He spent most time in [Country 1].
·He was in the Muslim League party from [Year] until 2000. The BJP approached him to work with them because he had done some basic charity work as a student, and the BJP would ‘look stronger’ if he was their member.
·He joined the SDPI and was an active SDPI member from 2015.
·He helped [Mr B] and [Ms C] get married, so he was considered by the BJP as a ‘love jihad’[2] initiator.
·He did not experience any problems between 2010 and 2016.
·In February 2016, he helped his friends to leave Kasaragod. Consequently, the BJP attacked him in January 2016 and his wife [in] March 2016. He hid outside his local area after [March] 2017.
·He fears harm from the BJP and associated criminals because he is a member of SDPI and there are many criminal activities happening in his community.
Delegate’s findings
[2] Love jihad (or Romeo jihad) is a conspiracy theory that purports that Muslim men target Hindu women for conversion to Islam. Wikipedia, accessed 1 September 2024. <>
The delegate considered that the applicant had not provided an honest account of his residence in India from 2004 to June 2015, and detailed other concerns regarding the applicant’s claims about threats received and political involvement. The delegate did not accept that the applicant was known to be an active member of the SDPI or any other party. The delegate found that the applicant was not credible in his claims for protection, had no genuine subjective fear of returning to India and there was no credible evidence that he would be harmed were he to return there.
The review application
On 13 March 2019 the applicants applied to the Tribunal for a review of the delegate’s decision. The applicant provided the Tribunal with a copy of the Department’s decision record.
Hearing
A hearing scheduled for 18 August 2024 was rescheduled at the applicant’s request. He appeared before the Tribunal on 23 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malayalam language. The partner applicant, the child applicant and another younger child also attended the hearing.
The applicant confirmed that the other applicants did not make separate claims for protection. They rely on his claims as members of the same family unit.
Birth of second child
The applicant and partner applicant told me that the younger child attending was their daughter, [Ms D], born on [Date]. They said that they had not informed the Tribunal or Department about her birth because they did not yet have a passport for her. I requested to see her NSW Birth Certificate and a copy of that is now held on the Tribunal file.[3]
[3] A copy will be forwarded to the Department.
I requested that the applicant provide honest evidence in discussing his claims for protection.
The applicant submitted over 160 pages of various documents at the beginning of the hearing, including 10 pages of untranslated documents.[4] I reminded him of the Tribunal’s earlier written requests to him to submit any documents he sought to rely on at least 7 days before the hearing and that all documents submitted should be translated into English by a qualified translator.
[4] Copies of documents not publicly available have been uploaded onto the Tribunal file.
He declined the opportunity to speak about his claims before I asked him some questions about his application.
The applicant confirmed that he relied on his claim of supporting the interfaith relationship and marriage of his friends [Mr B] and [Ms C] as being central to his claims for protection.
He confirmed evidence given in the interview that he made no claims of harm between February 2010 and January 2016.
The applicant confirmed that the claims in the protection visa application were his own. He typed the statement himself in the library. He had assistance from a friend and asylum seeker resources. He does not know the full name of his friend, who has since returned to India.
He is in contact with his family in India about once a month. His parents and his brother and sister continue to reside at the same family home in Kasaragod. Another sister lives in the same district. His wife’s family, including her [brothers], also live in the same district.
The applicant told me that he, his wife, her father and a brother arrived in Australia on the same flight from India. His father-in-law and his brother-in-law returned to India after a month or so. I asked whether they had also been threatened with harm. He said his father-in-law had not been threatened. His brother-in-law had problems, but he had returned home to India, too.
The applicant confirmed different addresses and employment since arriving in Australia in August 2016.
The partner applicant said that she wanted to make a statement in support of the applicant’s claims. She stated that [in] March 2016 unknown people came to the applicant’s family home in Kasaragod and requested the applicant’s whereabouts and threatened them. The applicant’s parents were home as well. They were scared. Her husband has not told her about his claims for protection as he does not want her to be scared.
During the hearing, without me asking about any injuries, the applicant stood up and pulled up his shirt, turning around to show me his back. Although not visible to me, he said that a red mark on his back resulted from a knife attack in 2010.
The applicant told me that he had not been involved in any political activities since coming to Australia in 2016. However, he reads about the political news of India every day.
Where relevant, the applicant’s other 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). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Country information
The Social Democratic Party of India (SDPI)
The SDPI is a radical Islamist, fundamentalist Indian political party founded on 21 June 2009 in New Delhi. It is the political wing of the Islamist organisation Popular Front of India (PFI).[5]
Popular Front of India (PFI)
[5] Social Democratic Party of India, Wikipedia, accessed 29 August 2024 <>
The PFI is an Islamic political organisation in India that engages in a radical and exclusivist style of Muslim minority politics. PFI was founded in 2006 with the merger of the Karnataka Forum for Dignity (KFD) and the National Development Front (NDF). The organisation described itself as a ‘neo-social movement committed to empower people to ensure justice, freedom and security’. It advocates for Muslim reservations. In 2012, the organisation conducted protests against alleged use of the Unlawful Activities (Prevention) Act (UAPA) law to detain innocent citizens.
In 2012, PFI launched a nationwide campaign, ‘Why the Popular Front’, detailing alleged false accusations and attempts by mainstream media and other organisations to tarnish its image. The organisation maintains that it strives hard to restore the rights of the depressed and marginalised sections of the Indian society. Further, the organisation filed complaints with the Press Council of India against 10 newspapers – both Hindi and English – for their attempts to tarnish the image of the PFI.
PFI – Social Justice Conference 2011
The Social Justice Conference was held in New Delhi on 26–27 November 2011.[6] The key address of the conference was a plea to the United Progressive Alliance government to implement the findings of the Sachar Committee Report[7] and the National Commission for Religious and Linguistic Minorities.[8] The Sachar Committee made recommendations to remove impediments preventing Indian Muslims from fully participating in the economic, political and social mainstream of Indian life. The report raised issues regarding the ‘backwardness’[9] of Indian Muslims. An issue highlighted was that while Muslims constitute 14% of the Indian population, they only comprise 2.5% of the Indian bureaucracy. The National Commission for Religious and Linguistic Minorities recommended the following: give 10% quotas for Muslims and 5% for other minorities in government jobs and in seats in all the higher educational institutions; reserve an 8.4% quota out of the existing Other Backward Caste quota of 27% for religious minorities, mainly Muslims; and permit Dalits who convert to Islam or Christianity to avail of reservation benefits under the Scheduled Caste reservation quota.
[6] Popular Front of India, Wikipedia, accessed 28 August 2024 < Sachar Committee, Wikipedia, accessed 28 August 2024 < National Commission for Religious and Linguistic Minorities aka Ranganath Misra Commission, Wikipedia, accessed 28 August 2024 < See footnote 1, above.

Especially since around 2010, the PFI has often been accused of involvement in anti‑national and anti-social activities by the Indian Government. The PFI was banned by the Indian Ministry of Home Affairs under the UAPA on 28 September 2022 for a period of 5 years. Over 300 PFI leaders and activists were arrested in the days leading up to and after the ban.[10]
[10] Popular Front of India, Wikipedia, accessed 28 August 2024 < reasons and findings
For the following reasons, I have concluded that the decision under review should be affirmed.
Assistance to Christian woman at college
The applicant claimed during the hearing to have been attacked and threatened with death after assisting the young Christian woman when he was at college. He told me this threat was made by the ABVP and the BJP. I asked the applicant when this occurred. He said that it happened in 2001. I noted that this claim was inconsistent with his claims elsewhere that it occurred in 2000. The applicant replied that he didn’t recall exactly when it had occurred. I also pointed out that the threats to kill him had not been acted upon. The applicant agreed. He said that he was safe because he left for [Country 1], which he later confirmed had been in 2004. I consider that the applicant has given inconsistent evidence about when this claimed very serious event occurred.
[Ms C] and [Mr B]’s relationship
The applicant has consistently claimed that his support of his friend’s ([Mr B]) interfaith relationship with [Ms C] since 2010 forms the main basis from which his claims for protection arise. However, I have very significant concerns about the applicant’s evidence about this relationship and his claimed support of and assistance to it.
During the hearing the applicant confirmed his claim that his friend [Mr B] and [Mr B]’s friend, [Ms C], made the decision on the day of the [competition] in February 2010 that they would live together after getting married. However, as I pointed out to the applicant, according to his written claims in the protection visa application, he was in [Country 1] at that time. The applicant agreed but added that during his stay in [Country 1] he would regularly return to Kasaragod for short trips every 2–3 years, and the [competition] happened during one of those return trips. I noted that in the protection visa application, he had set out specific dates of other short trips to [Country 2] (6 days) and [Country 3] (3 days) but had not set out any dates for visits back to India. The applicant agreed but added he had returned to Kasaragod in February 2016.
I told the applicant that I found the story of [Mr B] and [Ms C]’s relationship a very strange one. At an event in February 2010, a young couple decide that they will marry and live together. The applicant’s support of their relationship quickly came to the attention of [Mr C]’s father and several days later the applicant was violently attacked (as was [Mr B] a few days earlier). Then nothing happens to the applicant, or the couple, apparently, for six years, despite the applicant returning regularly to Kasaragod from [Country 1] and [Mr B] and [Ms C] continuing their relationship in Kasaragod throughout this period. The applicant confirmed the couple didn’t marry in 2010. He said that during the next 6-year period they had an affair. They had phone calls, meetings together and picnics. I queried the possibility of this relationship continuing in the local area without the extreme adverse attention or violence it had wrought [Mr B] and the applicant when it first started. The applicant replied that it was only when they went public that they could be caught. In the meantime, they were living in different houses with their own parents. He added: ‘There was not much of a problem’ during this time. I indicated that I had difficulty accepting this response. I also asked, given their stated commitment to a life together in February 2010, why did they wait 6 years to marry. The applicant said that they wanted to wait until they were more mature and had finished their education. I have considered the applicant’s responses. I find it extremely unusual that [Ms C] and [Mr B] would be able to carry on their affair in the local area for 6 years, including phone calls and meeting up with each other, with ‘not much of a problem’ given the intensity of the claimed adverse reaction and hostility by [Ms C]’s father and family, the BJP and RSS members to the inception of the relationship and the attack on [Mr B] and the applicant that ensued. I also find it very strange that it was only in 2016 and the applicant was back living in Kasaragod, supporting the relationship that problems began again. This strangeness together with the solipsistic-like description of the relationship causes me to considerably doubt the veracity of the applicant’s claims regarding it, including his part played in it and what harm ensued and was threatened because of it.
During the interview when asked when [Mr B] and [Ms C] married, the applicant replied, in February 2015. When asked to clarify the date of this marriage, he then said it had been in January 2015. When the delegate observed that he had also claimed to be in [Country 1] at that time, he said they married in January 2016. I asked the applicant about this inconsistent evidence. He first said that it was because he had been panicking. When I asked when the marriage had happened, he initially said that it had been February 2016. When I queried this date, he said because they had an interfaith marriage, so different things happened at different times and then there was registration and publication of the marriage as well. I queried the applicant’s explanation, noting that he had previously been able to give a date without qualifying those different aspects of the interfaith marriage happened at different times. I reminded him that he had stated that a marriage took place at on particular date, so what was he referring to as ‘the marriage’ when he gave that evidence? The applicant said it was when they ‘put the garlands on’ but they didn’t have the proof of the marriage. I have considered the applicant’s evidence on the issue about when the marriage took place. I don’t accept that it was because of different faith requirements that the applicant gave different dates (including one a year apart) for the marriage, particularly as this was not raised contemporaneously to the inconsistency being drawn to his attention in the interview. I don’t accept that he gave inconsistent evidence because he was panicking. To the contrary, I consider his explanation for the inconsistency because of different interfaith requirements demonstrates a capacity and willingness to spontaneously provide further untruthful evidence when confronted with inconsistencies found in his evidence. This causes me to considerably doubt his credibility in his claims about the relationship between [Mr B] and [Ms C].
I asked the applicant if [Mr B] and [Ms C] were still together. The applicant said he did not know about that. He did not have any contact with them. I expressed my surprise that he didn’t know the status of their relationship and asked when he’d last had contact with them. He replied that had been [in] March 2016. He said that he had tried to ring their number, but the call had rung out. I asked what steps he had taken to contact them. He had asked his friends about them. Perhaps [Mr B] and [Ms C] could be missing or kidnapped. I asked if he had tried to contact [Mr B]’s family and he indicated that he had not done so. I asked if he’d tried to contact [Mr B] or [Ms C] through email and he said that he had not done so. I find it highly unusual that the applicant hasn’t made further and persistent efforts to contact his friends since 2016, and especially so as he described [Mr B] to me as being his best friend and given his claimed role in assisting them and the danger that he claims it exposed him to in so doing. Further, the applicant continues to claim that his support of their relationship is the basis for his fear of harm in returning to India. This lack of persistence in finding out about them and their ongoing relationship makes me significantly doubt the veracity of the applicant’s claimed role in their relationship, including the claimed inception since 2010 and the claimed threats and attacks he received as a result of it.
Threats in India
In his written statement, the applicant claimed that on [Day 2] March 2016 the RSS and BJP members questioned his wife and parents, threatening to kill them. He further claimed that the RSS and BJP attempted to kidnap him on [Day 3] March 2016 and his friends, [Mr B] and [Ms C], disappeared on [Day 4] March 2016. However, at interview he said that his friends disappeared on [Day 1] March and that the BJP attacked his wife on [Day 5] March 2016. When this inconsistent evidence was raised with the applicant during the hearing, he could not provide a reason for the inconsistencies. I accept that these events happened a long time ago. However, the applicant has been very specific in his claims about dates in both in the written statement and during the interview. The applicant’s evidence on this issue indicates to me that he is prepared to make specific and detailed claims but then is not able to explain the inconsistencies they present when he presents his evidence.
[Day 5] March 2016
While raising concerns of the delegate in respect of threats made against him in March 2016 in India, I queried the claimed events of [Day 5] March 2016. I noted that during the interview he had made specific claims that on that date ‘goondas’ in a white van planned to attack him while he was riding his bike. I also noted that in his written statement, the applicant claimed that on that same date he moved to live with his uncle in Mumbai. I said that he could not be in 2 places at the same time and indicated that I found the claims inconsistent. The applicant first said that he had been in Mumbai on that day. He later said that both events happened on the same day. He said that the bus trip to Mumbai could be done in a day. I queried his responses, noting his written statement was very specific regarding dates of claimed events in March 2016 and had made no mention of this planned attack on him on [Day 5] March 2016. The applicant said that maybe there was a mistake. I consider that the applicant’s evidence on this issue indicates his determination, capacity and willingness to untruthfully change his evidence in attempting to explain inconsistencies brought to his attention. I consider that his evidence on this issue reflects adversely on his credibility generally.
The SDPI
During the hearing I asked the applicant when he joined the SDPI. He said that this had happened in 2009. I told the applicant that he had given inconsistent evidence about when he joined the SDPI. He told the delegate that he had joined in 2015. His written statement indicated that he joined in 2000. The applicant said that he had made a mistake. Given that the applicant has variously claimed to have joined the SDPI in 2000, 2009 and 2015 I find that he has given very inconsistent and untruthful evidence about this important claimed event. I also find that it reflects adversely on his credibility generally regarding his claims for protection.
All SDPI members killed in the applicant’s area – communal violence
I noted the delegate’s concern regarding the applicant’s claim regarding communal violence. He claimed that all SDPI members in Kasaragod had been killed by BJP members. The delegate informed the applicant that there was no country information available to corroborate this claim and ultimately did not accept it was credible. When I raised the issue of his claim not being supported by country information, the applicant said that his friends had been killed and Kasaragod was a BJP stronghold and indicated that there was ongoing and continuing communal violence.
A recent news report discusses communal violence in Kasaragod.[11] It refers to a tit‑for‑tat spate of violence in 2008 when 4 people were killed in 5 days, including a Mosque Committee President and Mohammed Sinan (see discussion below). It also states that recently, on 24 August 2024, 4 BJP/RSS members were found guilty of this 2008 murder of the Mosque Committee President. Further, since that 2008 spate of violence (i.e. a period extending over 16 years), there have been 11 communal violence deaths. Only one of all the deaths had an affiliation with the SDPI party. That was Zainul Abid, who was described as an SDPI activist. (I will discuss the applicant’s specific claims regarding his connections with Mohammed Sinan, Zainul Abid and Mohammed Riyas Moulavi later in this decision.)
[11] ‘Kasaragod police secure first hate crime conviction; 4 BJP supporters guilty in mosque president’s murder’, Onmanorama, 24 August 2024 – accessed 24 August 2024 <>
While I accept that the BJP is active in Kasaragod and that there have been several deaths following which RSS/BJP activists have been charged,[12] the applicant’s evidence that all SDPI members are being killed by BJP members in Kasaragod and this violence is ongoing and pervasive indicates to me that he is prepared to significantly embellish his claims. I think that this propensity reflects adversely on his credibility generally regarding his claims for protection.
Delay in leaving India
[12] For example, the applicant submitted 3 articles about the death of an Iman. One of them was from the Times of India: ‘3 RSS men let off in madrassa teacher murder case in Kerala’, The Times of India, 31 March 2024 <>
When asked during the interview why they delayed leaving India after their tourist visas to Australia were granted, the applicant replied that he did not have sufficient funds to travel. The delegate reminded him that he had earlier said that his wife’s father and brother accompanied them to Australia. Given this, it would be reasonable to expect these family members would finance an earlier departure if the applicants genuinely feared harm as claimed. The applicant stated that he didn’t want to depend on anyone’s financial support to leave. However, later during the interview he said that he contacted friends to collect money for his travel to Australia. When this contradictory evidence was put to the applicant for comment, he said that he was collecting money for his stay in Australia as he had his own funds to pay for his travel.
During the hearing the applicant confirmed his evidence that he had been very scared before he left India. He was frightened about possible harm from the BJP, the RSS and [Ms C]’s family to him and the partner applicant. When I queried whether he genuinely feared this harm, given they waited 69 days before leaving, the applicant repeated the claim that the delay was necessary because he needed money to come here. He agreed that his father-in-law was helping him financially but said that he needed more money because his wife was accompanying him. He also added that he also had to wait until his sister’s marriage had been conducted. I expressed surprise saying that if he was in genuine fear of his life, why would he delay fleeing, staying instead to organise an event whereby he and his family would be exposed to danger. The applicant said that his sister was getting old, and he had to find a bridegroom for her and organise the marriage event. He said that he did all of this without exposing himself.
I consider that the applicant has given inconsistent evidence about needing and requesting financial support to leave India. I also consider that if he genuinely feared for his life and that of the partner applicant from [Ms C]’s father, the BJP and the RSS as he claims, he would not have so significantly delayed leaving to organise a family marriage, especially given his involvement in such an undertaking could possibly also endanger family members. I further don’t accept that he could find a bridegroom, arrange for and attend to his sister’s marriage, and apply to friends and family for funds, without exposing himself to the danger and tenacity of the adverse interest he claims he faced in India. I don’t accept the applicant’s evidence about the reasons for the delay of 69 days in leaving India. Further, given the applicant’s evidence on this issue I do not accept that the applicant genuinely feared harm in India for the reasons he claims. I also consider that his untruthfulness on this issue reflects on his credibility generally in regard to his claims for protection.
All of the above concerns lead me to make adverse credibility findings in respect of the applicant’s claims. Specifically, I don’t accept:
·The applicant has an adverse political profile in India as a political activist or a supporter of the Muslim League.
·He was attacked by ABVP members (or anyone else) while at college for helping a Christian girl in 2000 (written statement) or 2001 (hearing), or that he became adversely known to the BJP or RSS for helping her. It follows that that I also do not accept that the police refused to take his report about the 2000 (or 2001) attack on him.
·Because of his rejection of an offer to join the BJP in around 2000 threats of killing were made against him by the BJP or RSS members.
·He supported an interfaith relationship and marriage, was regarded as a ‘love jihad’ initiator, and was targeted, attacked and threatened with death because of this.
·[Ms C]’s father or other family members, members of the RSS or BJP or [Mr B]’s family members were trying to locate the applicant or any of his family members, including the partner applicant’s family, because of the applicant’s support of and assistance to [Mr B] and [Ms C].
·He and family members, including the partner applicant and her family, were threatened, attacked or assaulted by [Ms C]’s father or family members, members of the BJP or RSS or ‘goondas’ for the reasons he claims. It therefore also follows that I also do not accept that:
oAny scar visible on the applicant’s back is the result of a knife attack in 2010 after [Ms C]’s father found out about the inception of the affair between [Mr B] and [Ms C] and organised others to attack him.
oThe police refused to make a report about the 2010 knife attack and threatened to charge him if he persisted in trying to report the incident.
oIn 2010, a driver informed the applicant’s friends that he had heard BJP and RSS activists saying that the applicant should be killed for his support of the interfaith affair.
oHe was in hiding due to fear of harm from the BJP, RSS, [Ms C]’s father or family members or the ‘goondas’ because of support of the interfaith relationship, at any time. This includes at a [farm] or anywhere else, during his return trips to India while living in [Country 1] (evidence during the hearing), or during the delay period from the grant of the visa to visit Australia until his and the partner applicant’s departure from India (written statement).
·The applicant joined the SDPI party or that he became an active member of it in 2000 (written statement), 2009 (hearing) or 2015 (interview), or a leader of the local group (hearing) or that he had an adverse political profile in India as a political activist or a supporter of the SDPI.
·The applicant was in hiding from the BJP, RSS, [Ms C]’s father or ‘goondas’ at a [farm] or anywhere else, during his return trips to India while living in [Country 1] (evidence during the hearing), or during the delay period from the grant of the visa to visit Australia until his and the partner applicant’s departure from India (written statement).
·The applicants’ family and friends continue to be threatened about serious consequences if the applicants return to India.
·The applicant tried relocating to other areas in India, including Mumbai, but he found that he could not find a safe place anywhere.

Given all the above, I do not accept the partner applicant’s evidence that she and the applicant’s parents were threatened in early March 2016 or any time before they left India by unknown people searching for the applicant supports the applicant’s claims for protection. Nor do I accept her claim that the applicant has not told her about his claims for protection because he did not want to scare her.
Claims accepted:
Interest in minority groups
The applicant has made consistent and naturally given claims about being involved in charitable work at college collecting money for minority group students. I accept that he did this and that he had a particular interest in more recognition of and equality for minority groups, including Muslims, in India.
No political activities in Australia
I accept the applicant’s evidence, naturally given, that other than reading about it, he has not engaged in any political activities since coming to Australia 8 years ago.
Documentation submitted at the hearing
Popular Front of India
During the hearing the applicant claimed to be an active supporter of a leader in the PFI. He said that he had not raised his claimed affiliation earlier than the hearing because there is no membership as such in the PFI and therefore he could not show proof; it had been more like a charitable organisation. I noted I did not find this explanation persuasive given lack of proof had not prevented him from making other claims, e.g. being a member of the SDPI. He also claimed to be an associate of some of the PFI leaders who are now in jail. He referred to CT Sulaiman, a PFI leader who until recently had been in jail,[13] as ‘my leader’.
[13] ‘17 PFI Functionaries Get Bail in UAPA Case’, Clarion, 25 June 2024, accessed 30 August 2024 <17%20PFI%20Functionaries%20Get%20Bail%20in%20UAPA%20Case>
The applicant submitted a Gazette of India Notification dated 27 September 2022 declaring that the PFI is an unlawful association. He also submitted several articles regarding the arrest of PFI activists and leaders and the ban. Given the country information set out above (paragraphs 37-40), I accept that the PFI has been banned in India since 2022 and that many PFI leaders and DFI activists were arrested, some were jailed and some remain in jail.
The applicant submitted a large bundle of photographs which he said supported his claimed connections with the PFI and its leaders. He claims this is another reason why he could be threatened or attacked by the BJP, the RSS or he too could be arrested by the government authorities. When asked about these photos, he initially claimed were taken in 2016. As we looked at the photos more individually, he said that they were taken in 2011. In many of them, there are signs relating to the PFI Social Justice Conference in Delhi which took place in November 2011. In some of the photos the applicant is with a group of much older men, whom he described as the national or local leaders of the PFI. The applicant identified CT Sulaiman in several of the photos. The applicant claimed that these photos are proof that he was actively involved with the PFI and would be linked with the leaders of the PFI; he could be targeted just like the PFI leaders have been targeted. I noted that the leaders were much older than him and he would be regarded differently from them. I also asked why he would be targeted for attending a social justice conference dedicated to helping minority groups that took place 13 years ago. The applicant indicated that he would be targeted because he was linked to the leaders.
I have already accepted that the applicant had an interest in the well-being of minority groups in India, including Muslims. I am prepared to accept that the photograph evidence he has provided regarding attending the 2011 conference is genuine and has not been altered artificially. I accept that the applicant attended an event, the PFI Social Justice Conference 2011 (see country information, above) in November 2011 in Delhi, noting that the key focus of the Conference included a push to remove impediments preventing Indian Muslims from fully participating in the economic, political, and social mainstream of Indian life.
However, the older men identified by the applicant as leaders in the photographs wear lanyards that refer to them being a ‘delegate’, whereas the applicant wears a lanyard with the words ‘tea coupon’ or ‘lunch coupon’ on it. When asked what this meant the applicant said that he had been a volunteer at the conference. He added that he was there to give security at the event. This is why he was with the leaders and journalists. I noted that this indicated that his status was different from those with whom he was photographed.
Given the photos relate to 2011 and the applicant was attending in the capacity of a volunteer security guard, I do not accept that these photos support claims he was an ongoing participant in PFI activities, or that he had or has a profile as a PFI activist or leader or as an associate of a PFI leader or activist. Further, given the adverse credibility findings I have made in respect of the applicant’s other claims for protection, I do not accept that the applicant was an ongoing participant in PFI activities until he left India, or that he had or has a known profile as a PFI participant, activist, leader or an associate of a PFI leader or activist.
SDPI
The applicant submitted copies of several SDPI articles[14] as well a copy of the SDPI Party Constitution dated May 2018, all downloaded from the SDPI website (
[14] Social Democracy © SDPI 2021; Social Democratic Party of India © SDPI 2021; Pro People Policy © 2021; Widening Disparity © 2021; Freedom from Hunger Freedom from Fear © 2021.
He also submitted several photos which he claimed to support his claim to be a member of the SDPI. In one of them he is standing in front of poster that refers to a date of 19‍–‍20 November and has a copy of the SDPI flag superimposed on the poster. The applicant claims the photos were taken in Kasaragod in 2011, which I note is several days before the PFI Social Justice Conference 2011 that was held in Delhi. I am prepared to accept that the photos he has submitted in support of this claim are genuine and have not been artificially altered. Given this, I accept that he did participate in an event in November 2011 linked with the SDPI. However, as noted above, I have already made adverse credibility findings in respect of the applicant’s claims regarding his membership of the SDPI and active role within the party.
Specifically, I have not accepted that the applicant joined the SDPI party or that he became an active member of it in 2000 (written statement), 2009 (hearing) or 2015 (interview), or a leader of the local group (hearing) or that he had an adverse political profile in India as a political activist or a supporter of the SDPI.
Mohammed Sinan
During the interview and the hearing, the applicant claimed that murder victim Mohammed Sinan was his cousin. During the hearing he also referred to him as his close friend and sought to link this murder to an association with the applicant. He initially told me that he had heard about this murder in 2014 when he was in [Country 1]. However, later he correctly stated that it had happened in 2008. If he went back to India, the applicant claims, he too would be murdered.
To support his claims, during the hearing, the applicant submitted the judgment of the Session Court in Kasaragod dated 18 September 2018.[15] It is made regarding charges against 3 men regarding Mohammed Sinan’s death and records their acquittal. He also submitted supporting news articles. Given this and other independent country information available, I accept the evidence that Mohammed Sinan, a young Muslim man, was murdered on 16 March 2008 in Kasaragod, apparently in retaliation for the death of a Hindu youth 2 days earlier. The accused were 3 RSS-BJP workers.[16]
[15] Sessions Case No 463 of 2013. Judgment is 53 pages.
[16] ‘Mohammed Sinan murder case – prosecution picks hole in investigation’, The Hindu Times, 24 September 2014, accessed 27 August 2024 <>
However, given the adverse credibility findings already made in respect of the applicant’s other claims, I do not accept that Mohammed Sinan was the applicant’s cousin, or a close friend, or that he was murdered because of any relationship or association he had with the applicant.
Zaninul Abid
The applicant claimed that Zaninul Abid was a friend and a co-worker of his in SDPI and PFI party activities. The applicant claims Zaninul Abid was killed by BJP members and the same thing will happen to the applicant if he returns to India. The applicant also indicated that Zaninul Abid was killed because of contact or association that he had had with the applicant.
The applicant submitted several articles including one from the SDPI website that stated that Zaninul Abid was a SPPI activist from Kasaragod who was killed in December 2014. Because this article and other country information available confirms that Zaninul Abid was an SDPI activist[17] I accept this claim and note that the murder trial is ongoing.[18] However, given the adverse credibility finding I have made regarding the applicant’s claims for protection, including his claimed involvement and membership of the SDPI, I do not accept that the applicant was a co-worker or a friend of Zaninul Abid. Nor do I accept that he was killed because of contact or affiliation with the applicant. Indeed, one of the articles submitted by the applicant cites ‘old enmity’ as the cause of the crime against Zaninul Abid, who the year previously had been arrested regarding an attempted murder case.[19]
Mohammed Riyas Moulavi
[17] ‘Kasaragod police secure first hate crime conviction; 4 BJP supporters guilty in mosque president’s murder’, Onmanorama, 24 August 2024, accessed 24 August 2024 <
[18] Ibid.
[19] ‘Kerala Muslim youth murders: Sangh Parivar involvement leading to biased police action, allege community members’, Twocircles.net, 29 December 2014, accessed 29 August 2024 <>
The applicant submitted several news articles relating to the death of madrassa teacher Mohammed Riyas Moulavi in Kasaragod in March 2017. He told me that 3 BJP/RSS activists had been charged and acquitted. The applicant said he knew the victim as a local person. Given country information available, I accept that this 2017 murder occurred, that the accused were BJP/RSS members, and that they were acquitted of the charge of murder earlier this year.[20] However, given the adverse credibility findings that I have made in respect of the applicant, I do not accept that the applicant knew the murder victim.
Fabricated charge against the applicant
[20] ‘Kasaragod police secure first hate crime conviction; 4 BJP supporters guilty in mosque president’s murder’, Onmanorama, 24 August 2024, accessed 24 August 2024 <>
During the interview the applicant foreshadowed that a fabricated criminal charge could have been made against him before he left India. He told me that one had been made and he found out about it after applying for the protection visa. He claims that the BJP and RSS are behind it, and it is an attempted murder charge. When I asked who the victim of the attempted murder was, he said that there was no one, as it was fabricated. When asked why this had been done, he said it was because BJP and RSS always target him. He said that the documentation relating to this fabricated charge had only arrived from India about 10 days ago. He claims that he contacted the court in India to get copies of it.
The applicant submitted several documents he said pertained to this charge. There is a Summons to an accused person, which is filled in with handwriting. The Summons refers to various sections of the Indian Penal Code (IPC) but does not describe what the charges are. The Summons is to attend court [in] March 2018, however, it is dated ‘[March] 20’. I asked if I could see a better copy of the document as it was not clear at all. The applicant provided another copy, but I noted that this document was also rumpled and unclear. I said that the attendance date did not make sense, especially given that he’d left 2 years earlier. The applicant said that he had submitted the judgment too. I noted that this document was handwritten and untranslated. Sections of the IPC were quoted but not explained. The applicant said that it related to a fabricated case of attempted murder [in] May 2016. I noted that this was around the time the applicant was applying for his visa to come to Australia. The applicant also submitted an untranslated document also completed in handwriting which he said was a judgment. He also submitted a First Information Report dated [May] 2016 (untranslated), a Police Report dated [May] 2016 (untranslated) and a Final Report dated [May] 2016 (untranslated).
I asked what the applicant had done to get this fabricated case dismissed. He indicated that he had done nothing other than apply to the court to get the relevant documentation sent to him so he could give it to the Tribunal. I asked about the status of this claimed court action. He said that it was still in the Sessional Court. He repeated that he had taken no action to get the matter dismissed and he is in Australia and not involved with it.
I explained to the applicant that if I had concerns about the applicant’s credibility, I might not accept these documents about the fabricated charge against the applicant as supporting his claims for protection.
I have considered the documents that the applicant has submitted to the Tribunal regarding the fabricated charge, noting that most of them are handwritten and untranslated. I have already made adverse credibility findings regarding the applicant’s claimed political profile with the PFI and SDPI. I have also found that he is not known adversely to the BJP or RSS for the reasons he claims. Given these and all the other adverse credibility findings I have made in respect of his claims for protection, I do not accept that the BJP or RSS members of party have brought this fabricated charge against the applicant. I do not accept that they targeted him or that they will always target him. Further, and having regard to his nonchalance in regard to applying to have the charges dismissed (yet apparently requesting copies of the documents), I do not accept that the applicant has a current attempted murder charge in Kasaragod Sessional Court.
As noted above, I have made significant adverse credibility findings in respect of the applicant’s claims. I do not accept that these documents support the applicant’s claim of the BJP and RSS targeting him and bringing a fabricated criminal action against him.
Other documents submitted
The applicant submitted a black‑and‑white photo of a bike seat that had cracked or been sliced open. He said that he received this photo after the Department interview. He said that it was taken in 2010 at the time he was attacked for supporting the interfaith relationship, and that he took the photo for the police report. He also claimed that he had been threatened with harm at the time and told that the same thing as happened to the seat would happen to him. I observed that it could have been any bike as there is nothing to indicate that it was the applicant’s bike. Given the adverse credibility findings I have made regarding the applicant’s claims for protection discussed above, and the absence of any other connecting evidence, I do not find this photograph supports the applicant’s claims.
Also submitted was a copy of an undated typed letter not on official letterhead apparently signed by the inspector of police in Kasaragod, which refers to a victim being assaulted and a motorcycle damaged [in] May 2016. However, as the victim is not named in this letter, I do not accept that it supports the applicant’s claims for protection.
Given adverse credibility findings already made in respect of the applicant’s claims, and concerns with the applicant’s evidence regarding the documentation that I have set out above, I do not accept the following further claims:
·That the BJP or RSS as organisations (rather than specific members) maintain an ongoing adverse interest in the applicant and will threaten or harm him or his family if they were to return to India.
·That he will be killed on his return to India because of his profile as an active participant in PFI activities or as a prime leader in the PFI, or that he could be arrested by the government or local government for being so involved.
·The implied claim apparent from his evidence during the hearing that he fears harm from the BJP or RSS or any other party as a Muslim man because of his political activism in India prior to 2016.
·That the applicant fears future harm from the BJP or RSS or associated criminals because of his SDPI or PFI adverse political profile in India as a political activist or a supporter of the SDPI the PFI.
·That the local BJP and RSS would know him to be a member of the SDPI as he claims.
·That a person referred to by the applicant as [name] who was attacked and left to die by the BJP/RSS, but survived, is a cousin of or a friend of the applicant.
Given all the above I find that the applicant does not have a genuine fear of returning to India for the reasons he claims and I also find that there is no credible evidence that he would be harmed for any of the reasons he claims.
Does the applicant meet the refugee criterion?
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.
As noted above, I have found that the applicant does not have a genuine fear of being harmed by [Ms C]’s family, [Mr B]’s family, the BJP or the RSS party or party members. Even if I accept that he did have a genuine fear, which I don’t, I am not satisfied that there is a real chance the applicant will suffer serious harm for any of the reasons claimed, or for any other reason if he returns to India. Accordingly, I am not satisfied he has a well-founded fear of persecution.
I am therefore not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Does the applicant meet the complementary protection criterion?
As I have found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, I have considered whether he may nevertheless meet the requirements for the grant of a protection visa under the complementary protection criterion.
As indicated above, the applicant claims he is at risk from [Ms C]’s family members and members of the BJP and RSS and associated criminals. As set out above, I have considered all the evidence in relation to these claims and I do not accept, on the evidence provided, that he has a real risk of suffering significant harm at the hands of members of [Ms C]’s family, the BJP or RSS or anyone else associated with those groups.
On the evidence before me I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm. Therefore, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

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).
The applicant partner and child applicant rely on the claims of the applicant. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criteria set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criteria set out in s 36(2)(b) or (c) and cannot be granted the visa.
I urge the applicant and partner applicant to approach the Department in regard to the migration status of their second child, if they have not done so already.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
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.
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 4186

4 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Natural Justice