1907607 (Refugee)

1907607 (Refugee) [2022] AATA 2447 (17 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1907607

COUNTRY OF REFERENCE: India
MEMBER:Scott Clarey
DATE:17 June 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 June 2022 at 4:15pm

CATCHWORDS
REFUGEE – protection visa – India – land dispute – physical assault – fear of killing – death of family members – delay in applying for protection – credibility issues – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kavan v MIMA [2000] FCA 370
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Zhang v RRT & Anor [1997] FCA 423
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 14 March 2019 to refuse to grant the applicant ([named]), a citizen of India, a protection visa under s 65 of the Migration Act 1958 (the Act). The delegate refused to grant the visa on the basis that they were not satisfied the applicant was owed protection in Australia. On 29 March 2019, [the applicant] applied to the Tribunal for review of this decision. He provided the Tribunal with a copy of the delegate’s decision record.
[The applicant] appeared before the Tribunal via teleconference on 17 February 2022 to give evidence and present arguments.
According to information provided in his protection visa application form that was discussed with him at the hearing, [the applicant] is [an age]-year-old Indian national born in Jammu, Jammu and Kashmir Province, India, on [date]. He stated he is ethnically Sikh and of the Sikh faith. [The applicant’s] mother, father and one [sibling] are all currently residing in Jammu. His brother lives in [Country 1]. [The applicant] completed a [Qualification 1] at the [named university] in [year]. He has never been married and does not have any children. I accept these biographical details to be true.
[The applicant] first arrived in Australia [in] October 2014 on a [Student visa] granted to him on 16 October 2014, valid until 1 September 2016. [The applicant’s] [student] visa was cancelled by the Department in September 2021. He subsequently appealed this cancellation decision that was ultimately upheld by the Federal Court of Australia in August 2018. On 22 August 2018, he lodged the protection visa application that is the subject of this review, and was granted an associated bridging visa.
On the basis of the copy of [the applicant’s] Indian passport provided to the Department, I accept that he is a citizen of India and that his identity is as he claims it to be. I accept that India is [the applicant’s] country of nationality for the purposes of the refugee assessment and the receiving country for the purposes of the complementary protection assessment.
The issues in this review are whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J(1) of the Act, and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of India, there is a real risk he will suffer significant harm.
For the reasons set out below, I have concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
[The applicant] set out his claims for protection in his protection visa application as follows (unedited):
Q:Select the country or countries from which this applicant is seeking protection and cannot return to.
A: India
Q: Provide reasons why this applicant left that country or those countries:
A:I initially came to Australia as my parents want to protect me from family feud. My dads brothers and their son do not want to distribute the grandparents property which is in Millions of Indian Rupees. My cousins have substantial distrubed background and are known to physically assuailt people. They have assaulted me earlier few times and my father. My brother is currently living interstate in India. We do not want any property but they knew I am legally one of the Heir to the property. They know if me and my brother are out of the way ( dead or missing) permammnetly, there wont be anyone to claim their rights. I and my family are afraid if I return to India, either they will arrange a hitman to kill me or I will be kidnapped, killed and left at some place where no one could find me. They have actually threatened my Parents to kill me the same day I come back to India.
Q: Give details including: the type of harm this applicant experienced, the person/people responsible for the harm, why they harmed this applicant.
A:Physically assaulted few times. I was left bloodied and bruised and it took me weeks to recover and months to overcome the psychological trauma.
Q:Did this applicant seek help within the country or those countries after the harm?
A:Yes
Q: Give details including: the name of the person/organisation/authorities this applicant asked for help, what help they provided, if they helped.
A: We asked Police department, but Indian Police department is very corrupt and my uncle has lot of political influence and money to bribe official. They put a dead ear to my complaints. My Parents are still struggling and when I talk to them they say that we wish you never come back to this hell.
Q: Did the applicant move, or try to move, to another part of that country or those countries to seek safety?
A:No
Q:Give details for why this applicant did not try to move to another part of the country or those countries.
A:I was too young and financially dependent on my Parents. My parents wants me to go some place better and have better life what we had there.
Q:Explain what the applicant thinks will happen to them if they return to that country or those countries:
A:I am sure I will disappear within first week of going to India or when my cousins know I am back in India.
Q: Does this applicant they will be harmed or mistreated if they return to that country or countries?
A:Yes
Q:Give details including: the type of harm or mistreatment this applicant is likely to experience, the person/people who would be responsible for the harm or mistreatment, why they would harm or mistreat this applicant.
A:Either I will be killed or beaten till I am completely mentally and physically disable to claim any rights on property.
Q:Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?
A:No
Q:Give details about why the applicant thinks the authorities could not, or would not, protect them.
A:I already approached Indian police but due to influence of my Uncle and money, they put a dead ear to my pleads.
Q:Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?
A:No. I won’t be getting any financial or residential help or any security assistance from government.
In making my decision, I have had regard to all of the information in the Tribunal’s file and in the Department’s file provided to the Tribunal.
Evidence from the Tribunal hearing on 17 February 2022
At the hearing, [the applicant] stated that he was born and grew up in Jammu, India. He completed high school there and studied a [Qualification 1] at a local university. He has [specified] siblings, a brother living in [Country 1] and a [sibling] living in Jammu with his parents, who are both still alive. [The applicant] said that he was of the Sikh faith and ethnicity. He said prior to arriving in Australia in 2014, he had been finishing his university studies. He said that he had not worked in India prior to arriving in Australia. He said that he was single and had never been married and did not have any children.
At the hearing, when asked why had decided to depart India for Australia in 2014, I note that [the applicant] gave responses that were at times vague, highly generalised, evasive, off‑point and confused. [The applicant] stated that he feared he would be harmed by his cousins in India. He stated words to the effect that his father had been [an occupation 1] who had worked for long periods in [Country 2]. While his father was away working in [Country 2], he said that his uncle (his father’s brother) had transferred property belonging to their father ([the applicant’s] grandfather) into his own name. I note that when asked when this had occurred [the applicant] struggled to put a definitive timeline on it and gave a series of answers that were confused and/or contradictory to straightforward questions. He initially said the claimed land transfer dispute had been 10 to 20 years prior. When I asked when his father had been away working in [Country 2] he said it was around 1991. He also stated that the problem relating to the property transfer had occurred in the 1980s. He said his grandfather had died a long time ago.
I asked [the applicant] at the hearing how this very old family dispute related to him and his current claim for protection. I note that [the applicant] gave answers that were both vague and at times confused. He appeared to demonstrate little knowledge about the dispute that he said formed the basis of his claim for protection. He said ‘they’ (which I took to mean his uncle and cousins) took other properties as well. He said that his family plan to make claims for all of his grandfather’s properties that had been claimed by the uncle. I asked [the applicant] to be more specific about how this 30-year-old land dispute related to his claims for protection. He said that his father knew more about the details and he stated that his uncle, who he claimed was involved in this historical family land transfer dispute, had died in 2018. When asked how this dispute was still relevant, [the applicant] said that his uncle’s sons ([the applicant’s] cousins) were continuing the dispute. He stated that his father planned to take legal action but [the applicant] appeared to know very little about the plans for or details of these claimed proceedings. [The applicant] then gave a semi‑coherent and confused response, and he appeared to state that his father had already taken legal action over the claimed dispute. When I clarified this with [the applicant] and asked if the legal action was ongoing, he said that he thought so but was not sure that it was. He said maybe his father had taken legal action five years before he had left India in 2014, but he appeared to indicate that there was too much fighting going on within the family and that he did not understand the contours of the claimed dispute.
I asked [the applicant] if he feared harm if he were to return to India in the foreseeable future. [The applicant] stated that he believed one of his cousins would try to kill him. He said that one of his cousins is a policeman in India. When I asked [the applicant] why he thought one of his cousins would try to kill him, [the applicant] stated words to the effect that his family would be the next to inherit the properties. I clarified with [the applicant] that, by his own telling of the story, his cousins already own the property because he claimed his uncle had transferred the property titles into his name from the grandfather’s name approximately 30 years ago. I noted that by his own account of the dispute, his grandfather had died several years ago and [the applicant’s] father did not own the properties, and had not own the properties since the 1990s. [The applicant] gave a highly confused answer in response, stating words to the effect that his uncle had taken the property by cheating.
I asked [the applicant] about the specific nature of the claimed threats he faced from his cousins in India. [The applicant] recounted to the Tribunal a story from 2007, where he claimed his cousin had hit him with a cricket bat and had broken his left arm. When I asked [the applicant] for more specific details about this incident, he gave vague and highly generalised responses, stating words to the effect that he was subject to verbal and physical abuse and was physically assaulted on two separate occasions. I asked [the applicant] why he had not mentioned that he had sustained a broken bone during these claimed attacks in his protection visa application. [The applicant] stated words the effect that he had just decided to tell the Tribunal about it now, at the hearing. [The applicant] stated that he believed the incident with the cricket bat was an attempt by his cousin to murder him. I clarified with [the applicant] that he believed that his cousin’s intent in hitting him with a cricket bat was to kill him. [The applicant] responded ‘I think yes’. I asked [the applicant] if he thought it was or if he knew it was an attempt to kill him. [The applicant] said he thought it was, but he appeared not to be certain. He said that the cousin had threatened to kill him on several occasions. I asked [the applicant] why his cousin would have an intent to kill him when, by his own admission, [the applicant] did not have a formal claim to the property. [The applicant] gave a vague response, stating words to the effect that the dispute is with his father. [The applicant] stated that he planned to continue the legal dispute with his father if he returned to India.
I highlighted to [the applicant] one of his answers provided in the protection visa application that stated that ‘We [[the applicant] and his immediate family] do not want any property but they knew I am legally one of the Heir to the property’. I asked [the applicant] why he had stated in the protection visa application that he had no intention of pursuing ownership of the properties, but he was now telling me that he did have an intention to pursue it, including through legal means. [The applicant] stated that at the time of the protection visa application, he did not want to pursue ownership of the property but had since changed his mind about the issue.
When asked if there was any other basis upon which he feared harm if he were to return to India in the foreseeable future, other than the claimed issues relating to the land ownership dispute, [the applicant] said there was not.
RELEVANT LAW
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ANALYSIS OF EVIDENCE AND FINDINGS
Credibility
I acknowledge the importance of adopting a reasonable approach when making findings of credibility.[1] However the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is ‘well‑founded’, or that it is for the reason claimed. Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to accept uncritically any and all of the allegations made by an applicant.[2]
[1] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court, Foster J at 482
[2] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70
I note that there were significant credibility issues arising from specific information provided by [the applicant]. As a result, I have serious concerns about the reliability of [the applicant’s] evidence about his claims relating to his fear of harm from his family (including his cousins) in relation to a land ownership dispute. I note that [the applicant] provided hesitant, vague and at times inconsistent and contradictory evidence when questioned about specific details of his claims. His responses were often evasive, highly generalised and/or off-point. This included evidence related to specific details of the claimed fear of harm in India, such as information about why the dispute had arisen, the type of harm he had experienced in the past and that he feared in the future, the reasons why this harm was directed at him, and the general timeline of events that had given rise to the claimed dispute with his family. As detailed above, I explained to [the applicant] at the hearing that I had significant, specific concerns about his credibility and various aspects of his evidence and gave him an opportunity to respond.
Delay in seeking protection

I also have concerns relating to the timing of the application for protection in considering the genuineness of [the applicant’s] claims to fear serious harm in India. I note that a delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm (see Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370). [The applicant] first arrived in Australia in October 2014 on a student visa. This visa was cancelled in September 2016, a process that ultimately resulted in the visa cancellation being upheld by the Federal Court of Australia in August 2018. I note that [the applicant] applied for the protection visa under review on 22 August 2018, nearly two years after he had arrived in Australia.
When considered in conjunction with my other concerns relating to [the applicant’s] evidence and claims detailed above, I find that this delay in applying for a protection visa is not indicative of someone who fears for their physical safety. I asked [the applicant] at the hearing why there was such a long delay between him arriving in Australia and applying for protection. [The applicant] stated that he was already overseas and he had a student visa and he did not think it was necessary at the time. When I questioned this with [the applicant] and stated that he knew at the time that his student visa was not a permanent visa, he did not elaborate on his decision to delay applying for protection for nearly two years after arriving in Australia. I have considered [the applicant’s] response but I am unconvinced by it and do not accept it. When this issue is considered in conjunction with my other credibility concerns, I find that it suggests that [the applicant] did not have a well-founded fear of persecution for the reasons claimed and that he made the protection visa application only when he had few other options to remain in Australia.
Conclusion on the claimed fear of harm from in relation to a land ownership dispute
As noted above, I have serious concerns about the credibility of [the applicant’s] evidence relating to his claimed fear of harm from his family (including his cousins) in relation to a land ownership dispute in India. I note that [the applicant] provided evidence that was at various times hesitant, vague, incoherent and contradictory when questioned about specific details of his claims. As detailed above, this included information about why the dispute had arisen, the type of harm he had experienced in the past and that he feared in the future, the reasons why this harm was directed at him, and the general timeline of events that had given rise to the claimed dispute with his family.
I am mindful that memories can be dimmed by the passage of time. I accept that it is not always possible or necessary for an applicant to remember specific details or dates. Even when making allowances for such factors, given the highly significant nature of the events being discussed regarding the serious threats he claimed to have been subjected to (and taking into account that [the applicant] is a tertiary educated man), I have formed the view that it could be reasonably expected that [the applicant] would have had a more precise and coherent recollection of the specific details relating to his claimed fear of harm in India.
Considering all of the evidence cumulatively, and having regard to [the applicant’s] personal circumstances and narrative as a whole, I do not find him to be credible. I note that there is very little evidence to corroborate any of [the applicant’s] claims. I find [the applicant’s] evidence in relation to having been threatened by members of his family (including his cousins) in relation to a land ownership dispute in India to be improbable, illogical, inconsistent and, ultimately, implausible. For these reasons, I do not accept that [the applicant] was threatened by members of his family (including his cousins) and/or the Indian authorities or anybody else in relation to a land ownership dispute or for any other reason. It follows that I find that [the applicant] would not a face a real chance of serious harm amounting to persecution for reasons relating to a land ownership dispute, or for any other reason, if he was to return to India in the reasonably foreseeable future. I find that [the applicant’s] fears of persecution on this basis are not well-founded.
As [the applicant] has not claimed to fear harm for any other reason, I do not accept that he has a well‑founded fear of persecution if he returns to India, now or in the reasonably foreseeable future, for any reason.
Conclusion – refugee grounds
Having considered [the applicant’s] claims both individually and cumulatively, and all of the available evidence and relevant country information, I find that [the applicant] does not face a real chance of persecution on return to India for any reason in the reasonably foreseeable future and that his fear of persecution is not well-founded.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations. Therefore [the applicant] does not satisfy the criterion set out in s 36(2)(a).
Complementary protection
Having concluded that [the applicant] does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).
In considering whether there is a real risk that the applicant would suffer significant harm if returned to India, I have noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[3]
[3] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342]
[The applicant] has not advanced any claims indicating that he considers he would face a real risk of significant harm if returned to India other than for the reasons discussed above relating to his claims under the refugee criterion. Given I do not accept that [the applicant] faces a real chance of suffering persecution involving serious harm if he returns to India, I also find, having regard to the findings of fact set out above, that there are not 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 would suffer significant harm in the form of: being arbitrarily deprived of his life; having the death penalty carried out on him; being subjected to torture; being subjected to cruel and inhuman treatment and punishment; and/or being subjected to degrading treatment or punishment by anybody for any reason.
Consequently, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that [the applicant] satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, [the applicant] does not satisfy the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Scott Clarey
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.
…

[2022] AATA 2447

17 June 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction