1906340 (Refugee)

1906340 (Refugee) [2024] AATA 2765 (27 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Ejaz Khan (MARN: 0213478)
CASE NUMBER: 1906340

COUNTRY OF REFERENCE: India
MEMBER:Rodger Shanahan
DATE:27 June 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 June 2024 at 11:14am
CATCHWORDS
REFUGEE – protection visa – India – political opinion – Chautala Party supporter – land dispute – legal proceedings – physical assault – fear of killing – attacks on family members – state protection – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423, 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 28 February 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of India, applied for the visa on 25 July 2017.
The applicant appeared before the Tribunal on 30 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review.
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 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.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant provided the following statement as part of his claim:
I came in Australia [in] August 2008, as a student to study [specified courses]. I did not complete this Diploma qualification because of my circumstances back home.
I have [specified family members]. The all living together in a joint family system in [Village 1] in the state of Haryana. My parents are Hindu by religion and we all siblings become Hindu by default. My father [has specified family members]. My uncle and his family also living in the same house in joint family system. My uncle has only one son [Cousin A]. My aunties are married and living in the same village. My aunties in laws always fight for the share in the family land. For this reason relationship with 2 of my aunties are not very good. Their husbands always generate trouble for our family.
On 27 November 2008, approximately two months after my arrival, fight broke out in my village between my family and [Mr A’s] family. Mr [Mr A] and my family have litigation with my family for many years over a piece of land. [Mr A] and my family is arch enemies of each other for many years. [Mr B] along with [Mr A] and his brothers [named] and Ors attacked on my family home in the village. There were exchange of bullets on both sides. At the end of the firing our guest [named] from [Village 2] was killed. He came to visit our family.
As a result of this incident my uncle filed a Police case against [Mr B] and [Mr A] family. In return, they filed a police case against our family including women. It was very stressful time for all of us. Most ridiculous event was that [Mr A] included our female in their police case. It was a matter of honour of our family to save women going in Police station for investigation and we spent lots of money in bribing the Police to keep our females out of the Police investigation. My father and his brother sold piece of their land to pay the legal cost to defend themselves.
After paying heavy bribe to Police my mother and aunty was released from the Police First Information Report. For this reason, my father unable to support my college fees. Due to defaulting in study and attendance my visa was cancelled. I was so scared to go back to India and remain unlawful. I knew if I go back I will be killed. My father told me that family is in deep crises, family land has been sold to pay for the case and defending the family against frivolous litigation.
I was working hard and sometime two jobs a day to support my family in India. This was a very stressful time for me here and my family in India. During the litigation [Mr A] died and his brothers were sentenced. [Mr B] and his family escaped punishment. I believe that if I go back [Mr B] or [Mr A’s] family will kill me to take revenge from our family. This case was important for our existence in the village otherwise they will possess our family land and house. Since this case started all focus was on me to earn and send money to the family to fight the case.
In or about 2011, this case was concluded and [Mr A] brothers were sentenced, copy of the Judgement attached. Since then [Mr A] and [Mr B] families very active to take revenge from our family. My cosine [Cousin A] has been attacked twice in the last 2 years but survived serious injuries. My brother [Brother A] was hit by [Mr B] brother badly. He has been disabled since. He is unable to talk due to a head injury. I do not wish to go back to India because I will be killed. Further I have very minimum qualification or skills to find a decent job in India. I wont be safe in any other city of India because [Ethnic Group 1] are famous in taking revenge and able to kill me anytime anywhere in India. On the basis of the above I seek protection from Australia.
Other statements were provided on 24 July 2017 and 21 May 2024 and their contents will be referred to, where appropriate, below.
AAT Hearing
The applicant was asked about a request for information and the response had not been received. The adviser said that it had been sent to the Tribunal. The adviser was told that a statement was sent and received however it did not answer the questions that were asked, which were to do with the 19 page court document that they had provided previously.
The applicant said the court case was to do with his uncle and the land dispute. He was his [Uncle A] – his father [named] was one of three brothers, the others being [Uncle B] and [Uncle C]. The applicant’s paternal grandfather’s name was [grandfather’s name]. It was put to him that the names in the court case did not match up with the names given.
The applicant then claimed that his other grandfather was [Grandfather A] and that [Uncle C] was the son of [Grandfather A]. It was put to him that this couldn’t be right as [Uncle C] must have the same father as the applicant’s father if they were brothers.
It was put to him that the three brothers’ names listed in the court document were [Mr B], [Mr C] and [Mr D]. He then said that [Uncle B] was the witness. It was put to him that he had claimed that [Uncle C] was his paternal uncle (ie father’s brother). He then said they were ‘cousin brothers’. It was put to him that in a statement he provided to the Tribunal dated 24 July 2017 he specifically referred to [Uncle C] as his paternal uncle.
He then said they were from the same grandfather. He again used the term cousin brother and the Tribunal pointed out where he had previously referred to [Uncle C] as his paternal uncle. He was asked if [Uncle C] was his father’s brother and he then said no, that [Uncle B] was his father’s brother. He was again told that he had said earlier in the hearing that [Uncle C] was his father’s brother and in his written statement he had referred to [Uncle C] as his paternal uncle.
The court case by contrast said that [Uncle C] had three brothers, with different names to those of the applicant’s uncles. [They had] a very common family name and the court case he had provided did not appear to relate to his brothers and he had presented the court case as if it belonged to his family. He was asked to explain why the family composition in the court case was different to his family’s.
He said that the reason for the difference was because the case didn’t belong to his immediate family but to a joint family where they all lived together. The [Uncle C] in the court case was his maternal grandfather’s son. It was put to him that in his July 2017 statement he only mentioned his paternal uncle’s family as being part of the extended family, with [Uncle C] as head of the household.
The applicant claimed there were 26 members in the house. It was put to him that there was no mention of any of the people in the court case in his written statement. He said that he had possibly missed something in his statement.
He claimed that if he returned to India, he would be killed by [Mr A’s] son – [Mr A] was head of the village council. [Mr A] would kill him because his uncle [Uncle B] witnessed the shooting. Asked why the applicant would be killed, he said people went to jail because of his uncle but his later withdrew his evidence. Asked why the applicant would be targeted, he said it was because of the property dispute.
Asked if he had any other claims, he said that his family had political issues. He was asked what fear he had, he said that he used to support the political party Chautala and that he would be jailed if he was caught by BJP supporters. Asked what support he gave, he said he was a worker for the Chautala – he was a worker in around 2007. Asked if he had ever mentioned this previously, he said that he didn’t as he thought the case had been dropped. But some friends had been jailed about two years ago (2022) for this. He was asked for evidence that BJP was jailing Chautala workers. Asked why it wasn’t in his 2024 statement, he said that he needed to gather all the proofs before he made the claim. It was put to him that he had made other claims without all the evidence – he didn’t answer.
Asked about the political claim, he said that he worked for the Chautala Party around 2005-2007 and he would go around to the villages. The BJP tried to get the vote but Chautala won and many Chautala supporters were killed around 2007. He was driving and someone came and hit his car – they were carrying BJP flags at the time. He had not mentioned this previously.
Asked if he had social media pages and he said he did. Asked if he had any pro-Chautala material on them or things that would show a link, he said that he didn’t. He said he could provide an identity card. It was put to him that document fraud was common in India so it was unlikely that just a card would carry much weight. Asked if he had any media reports or social media that would show him working in villages, he said he didn’t but he could try to get some.
He was asked why he would be of interest given he was a low-level worker 17 years ago, he said that if he took up with Chautala again he could be targeted. He said that he gave people money to vote and he could be targeted if he worked with Chautala again. Asked how they knew him, he said that he fought with them in 2006 and he and his friends beat BJP people up. Asked if he had even mentioned this in any of his statements or interviews since he had been in Australia and he said that he didn’t know to mention it before.
It was put to him that this should have been apparent when he was claiming protection. His unexplained delay in claiming a political element only after his application had been refused was of concern to the Tribunal. He said that he wanted to collect information to support the claim. It was put to him that he had had 16 years to collect this evidence and had not done so.
He said he had been depressed since his grandparents and sister had died. Asked if he had any evidence such as doctor’s certificates that he had been treated for depression or if he had ever gone to a hospital or mental health treatment facility for depression, and he said he only took medicine for it. He was told he would be given time after the hearing to provide evidence in support of his political claim.
Regarding the land claim he said they owned land in front of [Mr A’s] house and they needed this land to exit their property so [Mr A] took the land and his family recovered it legally via the court. [Mr A’s] family then took it back using armed men who work for them. The applicant’s family then sold their properties to someone else and moved out of the village.
[Mr A’s] family want the property in front of his house as the applicant’s family still owns it – they sold the other properties. Asked why the applicant would be targeted, he said that if he returned he couldn’t get a job with his qualifications. Asked how his family was living, he said they had sold the property and the applicant helped them financially.
Asked why the applicant would be killed, he said the property they wanted was under the applicant’s name as his father did this before the applicant claimed to Australia. He was asked why he didn’t sell the property, he said he was in Australia. It was put to him that he could have a power of attorney signed. He said that it was hard to get a job in India if he returned and he didn’t want to sell it to [Mr A] as they would be the only ones who would buy it and would pay him below its value. They had influence in the BJP and influenced the police.
He had come to Australia on a student visa. Asked if he noted he owned the property as part of his student visa application, he said the other property was enough. His family sold the other properties around 2022. Asked if [Mr A] hadn’t tried to get the property before, he said the other properties were in other people’s names.
Regarding the previous claim about the court case, he said that his uncle [Uncle B] refuted his evidence at trial and [Mr A] was released from jail. His aunt’s son was killed. He was asked why his uncle changed his evidence if his nephew was killed, he said that [Mr A’s] family attacked the family until [Uncle B] withdrew his evidence.
The applicant’s brother was in [studying in Country 1]. It was put to him that his family must be well off to send a student to [Country 1] to [study] just from the sale of a piece of land. If the applicant also had a piece of land he must have some assets. Asked if his brother had applied for asylum in [Country 1] he said that he hadn’t. It was put to him that the applicant had claimed that his brother was put in hospital after being injured in an assault by [Mr A]. He said his brother recovered and his father took out a bank loan and sent his brother to [Country 1].
His brother used to live in a school hostel. It was put to him that [Mr A] was connected to the BJP and could find him easily. He said that the hostel had its own security. He stayed in the hostel 365 days a year and went home only once in four years. It was put to him that this was unbelievable – the applicant said that obviously his brother went out occasionally but he largely stayed inside. He didn’t know what he did but he didn’t come home. The BJP didn’t know his brother was there.
He was asked why he would be afraid that they would know the applicant had returned to India even though he only worked for the Chataura 17 years ago and yet they couldn’t find his brother in the hostel for four years. He said his brother was under 18 and they couldn’t do anything to under 18s. He was born in [year]. It was put to the applicant that they had assaulted him sufficiently to put him in hospital when he was [under age]. He said that they did this when the applicant’s brother was living at home.
Asked when the property dispute occurred, he said it occurred in 2008. They wanted to buy his land from 2001 but the political circumstances were different then. The land was transferred to him in 2006. The applicant came to Australia in 2008 to [study]. When he went to the college they changed his course to [another subject] to build up student numbers. He attended [his original subject] classes instead and he was told he wasn’t attending classes. This was then resolved.
He gave his migration agent AUD 18,000 to fix his enrolment and visa which was about to expire. He was told this would take 6-8 months to process. The agent told him later that he paid the money to the college but the government then closed the college. He was told by the Tribunal that he would need to put this all in a statement about what occurred.
He had not complained about this agent to anyone as he was new and didn’t know the laws. He applied for protection in 2017 – he didn’t know the name of the agent, had no record of him and paid him in cash that he borrowed from friends so there was no record of him withdrawing or paying this money. He was asked for copies of the email conversations with his agent and records to do with his dealings.
His visa was cancelled in 2010 and he applied for protection in 2017. He didn’t know about protection but he was working on a farm and he met people from [Agency 1] at the farm. He then said they were in [Town 1]. He met with [Agency 1] people in [Town 1] who were distributing flyers. Asked if he ever asked Immigration, he said he went to the website looking for student visas. Asked whose assistance he sought given he claimed he feared being killed on return to India, or went to a religious organisation.

He said he tried to apply for a student visa in 2014. Asked again about his delay in applying for a protection visa, he said that he didn’t know about them. Asked how he knew about going to [Town 1] to work given he was in a college in Melbourne and said he didn’t know about protection visas. The concern was that his intent was to come to Australia to work and seeking protection was a means to extend his stay. He said that he worked in [Town 1] on the farm during his holidays so he knew about it.
He said that he was poorly paid and the farmer never used to let them leave. He had internet but he never used it. He didn’t have a computer. He had a keypad phone and never was able to call home. The internet was for the security cameras.
It was put to him that the court case he had provided to the Tribunal involved a different family and he had not replied to the Tribunal’s concerns because he realised it was a different case. The Tribunal was concerned that he had provided this case thinking the Tribunal would be taken in by it. The lateness of his claim was also a concern and he had also stated previously that the father sold the land to pay for his brother’s education in [Country 1] but also that he sold it to pay for the legal case. He said they used to have 12 acres and sold 10 acres for his brother and had 2 acres left.
The applicant said he had been in Australia for 17 years and things in India had changed so he had little left in India to live for. It was put to him that nine of those years were when he was staying illegally so his length of time in Australia was not a factor to be considered as part of his claim.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a student visa [in] July 2008 and applied for protection on 25 July 2017. I am satisfied that he is Indian national and for the purposes of this decision, India will be used as his country of reference.
The applicant is [an age] year-old male who claimed that if he returned to India he would be killed by the son of [Mr A] because of a property dispute in which the applicant was involved that led to the jailing of [Mr A]. He also claimed that he would be harmed because he had been a supporter of the Chautala Party before the BJP came to power.
In considering an applicant’s account, undue weight should not be placed on some omission or confusion to conclude that a person is not telling the truth. Nor can significant embellishments or inconsistencies be lightly dismissed. The Tribunal is not required to uncritically accept any or all of the claims made by an applicant.
I found the applicants claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witnesses and that he fabricated his claims in order to be granted a protection visa.
Property Dispute
The applicant’s main claim related to a property dispute in which he alleged a gunfight broke out resulting in the death of a member of the applicant’s extended family and the jailing of members of [Mr A’s] family. [Mr A] later died but his family vowed revenge and the applicant feared that he would be targeted because of the dispute.
This claim relies on the applicant’s written and oral claim and a court record of an Indian court case involving a property dispute identical to the claim made by the applicant and which the applicant stated was their actual case. The Tribunal sent a letter to the applicant on 8 May 2024 requesting the applicant outline the relevance of the case and the persons named in the case to his claim, and what relevant parts the Tribunal’s attention should be drawn to.
On 21 May 2024 the applicant provided a four-page response that outlined his claims in some more detail but failed to answer the Tribunal’s questions regarding the court document he had provided. The Tribunal has checked the online portal for Indian court cases and the case in question comes up in the public access area so I am satisfied that the case is a genuine one.
Whilst the case is genuine, it does not refer to the applicant’s family but to another [family by the same name]. The applicant tried to obfuscate when the inconsistencies were pointed out to him, however I am satisfied that he has knowingly tried to pass of another case as evidence of the veracity of his claim.
For example, the applicant states that his father [named] had two brothers [Uncle C] and [Uncle B]. Yet while the complainant in the court case presented is someone called [Uncle C’s name], this [Uncle C] has three brothers called [Mr B], [Mr C] and [Mr D]. The applicant then claimed variously that [Uncle C] was his father’s ‘cousin brother’ (without explaining what that meant) and then denied that [Uncle C] was his father’s brother but said they were from the same grandfather. He also claimed that the differences in the names were because the court case referred to a joint family where they all lived together.
However in the hearing the applicant had said that his father and [Uncle C] were brothers and in a written statement in July 2017 he also referred to [Uncle C] as his paternal uncle. I also note that this same statement only mentions them living with his paternal uncle [Uncle C’s] family in their joint household. I am satisfied therefore that the court case provided by the applicant, while genuine, refers to another family with the [same family name].
Because he has provided false evidence regarding his court case, I am satisfied that there is no property dispute between families, that neither the applicant nor his family have been threatened or family members jailed, shot or assaulted. The applicant claimed that his brother was hit by [Mr B] so badly that he was unable to talk due to a head injury and that he later went to an external college in India where he lived with private security and only returned home once in four years due to concerns over his own safety.
The brother was now [studying] in [Country 1]. He had not applied for protection despite what had allegedly happened to him in India and the restrictions he allegedly placed on himself at the private college in order to protect himself. The applicant said that his brother was on a student visa so had not applied for protection, yet having one does not preclude his brother from seeking protection. His inability to have done so raises questions in the Tribunal’s mind as to the veracity of the claim that the applicant and his family face serious harm in India.
Likewise, the applicant’s lengthy delay in applying for protection in Australia reinforces existing concerns about the truthfulness of his claim. He arrived on a student visa in 2008 which ceased in March 2010 and yet he didn’t apply for protection until more than eight years later. Such a delay is not indicative of someone who fears being killed if they return to India.
I do not accept that the delay was because he was unaware of the protection visa system. The applicant claimed that he had a migration agent to whom he paid money for enrolment in vocational courses. This being the case, he could have raised the issues he had about concerns over his return to India with him and sought options for remaining in Australia.
In his May 2024 statement he also claimed that he went to another migration agent in 2014 who advised him that the fee to lodge the protection visa was $5000 which he could not afford, and that he also went to other migration agents to whom he paid money but who did nothing. The applicant was asked for a statement about his dealings with his migration agent and also copies of email discussions he had with the agent, however neither was provided post-hearing. Nor did he provide any evidence of having discussed issues with any agent or of having provided money to any agent. It also raises the question as to why, if he was aware of the existence of a protection visa in 2014 that he did not explore this possibility with the Deopartment directly, rather than through an agent.
Political Activity
I do not accept that the applicant ever had any connection with the Chataura political party in India. To begin with, this is the first time the claim was ever made, and in accordance with s 423A of the Migration Act I am obliged to draw an inference unfavourable to the credibility of the claim or evidence if I am satisfied that the applicant does not have a reasonable explanation why the claim was not raised before the primary decision was made.
I do not accept that the delay in making this claim was because he didn’t know to mention it or because he wanted to collect evidence to support the claim before he made it. He was already making a claim regarding a property dispute so could easily have added a political claim at the time. He also put forward his property claim with little to no evidence so again it makes no sense that he would seek to delay his political claim for this reason.
He could provide no evidence that he had any political material relating to Chataura on any of his social media profiles, nor was he able to provide any other evidence such as media reports, photos or the like that would indicate he had any association with the party. He offered to provide an identity card, however the Tribunal is cognisant of the ease with which fraudulent documents can be obtained in India[1], and his willingness to provide one is inconsistent with his claim that he did not make this political claim earlier because he lacked evidence.
[1] DFAT Country Information Report – India, 29 September 2023, p 52.
Because of the above I am not satisfied that he ever gave money to people to vote for Chataura, that his vehicle was hit by people carrying BJP flags, that he fought against BJP workers and beat some of them up, or that friends of his had been jailed through pressure from BJP for working with Chataura. He was asked to provide evidence that BJP was jailing Chataura workers however none was provided.
Other Issues
I do not accept that some inconsistencies or lack of evidence was because he had been depressed since his grandparents and sister had died. No evidence of their deaths was provided, and nor was any evidence that he was on, or took anti-depressant medication. No medical evidence at all was provided regarding his alleged depression.
I also do not accept that he had little left for him in India because he had been in Australia for 17 years, or that he couldn’t get a job because of his qualifications. The applicant has a significant number of family members in India so has a good social support base. They have sent the applicant’s brother to [study] in [Country 1] (after being in a boarding college for four years in India) which would indicate that they have access to significant funds.
I do not accept that the applicant’s father had to take out a loan for this, or sold land, given no evidence was presented and it relies entirely on the applicant’s oral testimony which I have found lacks credibility. The applicant should be able to obtain employment commensurate with his qualifications and experience, and he would be able to survive economically courtesy of his family until such time as he obtained employment.
As the applicant hasn’t raised any other claims to fear persecution and, having regard to all the evidence and his claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any s 5(J)(1)(a) reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant was ever involved in any property dispute in India with neighbours or anyone else, was ever a member or supporter of the Chataura Party, or would not be able to get a job on return to India, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicants will suffer significant harm.
As a consequence, I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, that there is a real risk that the applicants will suffer significant harm on the basis of these claims as set out in the complementary protection criterion set out in s. 36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
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 2765

27 June 2024

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