1909044 (Refugee)

1909044 (Refugee) [2024] AATA 1516 (14 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1909044

COUNTRY OF REFERENCE: India
MEMBER:Mia Bailey
DATE:14 March 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 March 2024 at 11:58am
CATCHWORDS
REFUGEE – protection visa – India – imputed political opinion – land seizure – attacks by Congress Party activists – false legal case – physical assault – fear of killing – fear of detention – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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 (delegate) on 27 March 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 26 May 2018. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.
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. Relevant provisions of the Act are extracted in the attachment to this decision.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in
[1] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510
s 36(2)(aa) of the Act. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim.[1] For the following reasons, I have concluded that the decision under review should be affirmed.
Background and receiving country
The applicant, a [age]-year-old male, arrived in Australia [in] January 2018 on a Visitor (subclass 600) visa which ceased on 19 April 2018. The applicant applied for a further Visitor visa onshore which was granted on 8 May 2018.
The applicant has consistently claimed to be from Ferozepur district in Punjab state and identifies as being of Sikh ethnicity and religion. I have no concerns with those claims.
The applicant provided a copy of the biodata page of his Indian passport as part of his protection visa application. The delegate accepted that the applicant is a citizen of India and there is no information before me to the contrary. I find that the applicant is a citizen of India, and that India is his receiving country for the purposes of assessing his claims for protection.
Evidence before the delegate
In his protection visa application, the applicant provided no details of family members, education, or employment. Regarding his protection claims, he stated that he was beaten ‘by them once’ and left India to save his life. He made a report to the police and after that they came to his place to search for him. They have ‘very good political background from which they can do anything’. He fears that he will be killed if he returns to India.
The applicant attended an interview with the delegate on 5 March 2019. Relevant evidence from that interview is summarised below:
i.His mother and grandmother live in his home village of [Village 1] in Ferozepur District. He has one sister who is married and lives in a different village. His family own around [number] acres of land in [Village 1] which is currently leased and from which they receive income. His father has been in prison since 2017.
ii.He completed high school in [specified year] and then undertook a basic [subject] course. He worked as a farmer on his family land in [Village 1].
iii.His family also own around [number] acres of land in an area near the Pakistan border. This land was forcibly taken in 2017 by people aligned with the Congress Party for sand mining. Asked how these people took the land, he replied that they came with machinery and ‘bashed us’. They went to the police to file a complaint, but the police would not listen to them. False drug-related charges were brought against his father, resulting in his imprisonment. Before he left India for Australia; he went to the prison to visit his father.
iv.Asked why he had to leave India, he stated that the sand mining mafia attacked them twice and wanted to kill him. He was physically attacked in September 2017 by the people that took their land. They later came to his house when he was not home. Following this his mother told him to leave India for his safety. If he were to return, he fears he will be imprisoned or killed. Asked whether he could move to another part of India, he responded that the Congress Party control the entire country and they would be able to find him throughout India.
v.Asked what he was doing in Australia between his arrival in mid-January 2018 and applying for a protection visa on 26 May 2018, he stated that he wanted to get a student visa to study [a named subject] but couldn’t, so he applied for a protection visa.
The delegate did not accept the applicant’s claims regarding his family land being taken for sand mining to be credible, including because his claims regarding the political situation in India did not accord with country information. The delegate concluded that the applicant had fabricated his account for the purposes of obtaining a protection visa. The delegate therefore found that the applicant was not a refugee and did not satisfy the complementary protection criterion.
Evidence before the Tribunal
The applicant appeared before the Tribunal on 11 March 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’s wife, an Australian citizen, attended the hearing as a support person.
The applicant stated that his mother passed away last year from cancer and his grandmother passed away a few years ago. His father is currently residing in the family home in [Village 1]. His younger sister lives with her husband and [children] in a different village in Ferozepur district. The applicant and his wife married in June 2023, and they are expecting a child. He has been working in Australia, [in a specified job], but due to a workplace injury is not currently working.
Asked about his family land near the Pakistan border, he stated that it was around 2.5 acres, and his family bought the land in early 2017. The land is in the village of [Village 2], located about 20 kms from his village of [Village 1]. They bought the land for farming, but it was taken by the sand mafia before they could plant anything.
Asked for further details about what occurred with the sand mafia, he stated that in early 2017, the Congress Pay took power in Punjab. A sand mafia gang affiliated with the husband (known by the nickname ‘[Mr A]’) of a Congress Party MP, whom he recalls as [Representative A], took their land. He referred to ‘[Mr B]’, who worked for [Mr A], as the person who took the land. He and his father were not present when [Mr B’s] men brought machinery onto the land. They first tried to negotiate with [Mr B], with the assistance of the village chief of [Village 1], but nothing was achieved. In late July or early August 2017, he and his father went to the police in Ferozepur to file a complaint. The police would not listen to them and refused to accept their complaint. Asked why, the applicant responded that the police work for the politicians. They then tried to speak with a local MP, [Representative B], who was a member of the Bharatiya Janata Party (BJP), with whom the village chief of [Village 1] had familial connections. However, he was not in Punjab at the time, so they were unable to speak with him.
In around September 2017, the police raided their home and arrested his father. His father was accused of dealing in ‘heroin and white powder’. Asked whether his father had previously experienced any problems with the police, the applicant stated that his father was an opium user and had been arrested in 2012 and 2014 and spent [period] in prison on each occasion. He confirmed that his father was still using opium as of September 2017.
Asked about the legal process that his father underwent after being arrested in September 2017, he stated that his father was taken to the police station and charged. He was held on remand for a few days before being taken to court and then to [prison]. They applied for bail twice, but this was refused. In 2019 his father was convicted of heroin trafficking and sentenced to [term] imprisonment. They appealed to the High Court and his father was released on bail last year. His High Court appeal is ongoing. Asked how the legal proceedings are being funded, he stated that they have retained a lawyer, whom they are paying with income from the lease of the land in [Village 1]. He has also been contributing from the money he earns in Australia.
Asked why he believes his father’s conviction is connected to the land seizure given his father’s previous drug-related arrests, he responded that his father is an opium user, not a heroin user, and it was only after they approached the police to file a complaint that his father was arrested.
I asked the applicant what occurred in the period following his father’s arrest in September 2017 and his departure for Australia in mid-January 2018. He responded that in October 2017, 12 members of the sand mafia came to his home while he was out. They threatened his mother and grandmother that if applicant did not give up his claim to the land, they will do the same to him as they did to his father. They also threatened to kill him. On 3 or 4 other occasions in October to November 2017, members of the sand mafia were seen walking in the vicinity of his house. Asked how many people were seen, he stated that there were 15 or 16 people who came in 4 cars.
Asked whether anything else happened during this period, he stated that on one occasion in October or November 2017, a car drove in front of him while he was riding his motorcycle, causing him to fall. The car then drove away. When asked why he thinks this was related to the sand mafia, he stated that he saw that the occupants of the car were the same people that were walking in the vicinity of his house. He also claimed that in November 2017, while attending court in connection with his father’s case, the police approached him and told him to give up his claims to the land.
I asked the applicant whether he had taken any steps following his father’s arrest to reclaim the land. He stated that he had not; he was still hoping to speak with [Representative B] but he was not available and the applicant had become ‘busy’ with his father’s legal case.
I discussed with the applicant that he had been granted a visitor visa to Australia on 5 December 2017 yet did not leave India until [January] 2018. I asked the applicant why he did not leave India earlier if he feared harm from the sand mafia. He responded that the agent did not contact him until late December 2017 to tell him that he had been granted a visitor visa. He also stated that he left his village in early December 2017 to stay with his cousin in [City 1] because of the harassment he was receiving from the sand mafia. He returned to his village for about 5 hours to visit his mother and grandmother shortly before his departure for Australia. During the same trip, he visited his father in [prison].
I discussed with the applicant that the sand mafia knew his whereabouts in [Village 1] in the period between September and December 2017, yet took no action to harm him. He responded that he was involved in a ‘scuffle’ at the property in [Village 2] with the sand mafia. Asked when this occurred, he stated that it was before his father’s arrest. The applicant also stated that the sand mafia could have arranged for false charges to be brought against him, as they did to his father.
I discussed with the applicant that, given he had taken no further steps since his father’s arrest to pursue a claim over the land in [Village 2], it is unclear why the sand mafia would be so concerned with threatening him, including sending more than 10 men on 4 or 5 separate occasions to his home. He responded that they were concerned that he may pursue a claim over the land.
Asked whether his family in India experienced any issues with the sand mafia following his departure, he stated that they came to his house on one occasion in March 2018 to query his whereabouts. His mother told them he is overseas. He confirmed that he has received no contact from the sand mafia following his departure. Asked whether his father has experienced any problems since he was released from prison, he responded that his father received a few calls threatening that if he tries to do anything about the land he will ‘not come out again’. He stated that his father has taken no further action regarding the land as his health is deteriorating and he is depressed.
I asked the applicant why he did not apply for protection earlier than late May 2018 if he genuinely feared harm from the sand mafia at the time of his arrival in mid-January 2018. He responded that he didn’t know the ‘system’ when he arrived. In March 2018 he spoke with a Punjabi agent in Brisbane who suggested that he could apply for a student visa but may not be successful. In May 2018 he spoke with another agent who advised him to apply for a protection visa. I noted that while I would take his response into account, the delay may cause me to doubt the credibility of his claims.
I discussed with the applicant that it has been more than 6 years since the land was taken; he was not harmed prior to his departure for Australia and his father has not been harmed since his release from prison. I queried why he thinks he would be at risk of harm if he were to return to Punjab. He responded that he would have to do something to make a living if he returns and would need the land in [Village 2]. If he were to claim the land, he would be at risk of harm from the sand mafia. I raised with the applicant that his family own land in [Village 1], from which they earn income. He agreed that they own [number] acres of land in [Village 1] but half of that is currently leased and they need the income for his father’s court case.
Asked whether there is any other reason he feels unable to return to India, he stated that even if the sand mafia don’t physically harm him, they could arrange for false charges to brought against him, like they did to his father. He is married now and expecting a child. His wife has a pregnancy condition which means she requires constant care, and he is currently the primary carer for her [young children]. I discussed with the applicant that, while I accepted his circumstances in Australia, they are not relevant to my assessment of whether he engages protection obligations with respect to India.
Assessment
Factual findings
In determining whether the applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which involves an assessment of the credibility of the applicant’s claims. I have had regard to the Tribunal’s Guidelines on the Assessment of Credibility[2] and accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[3] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[4]
[2] Administrative Appeals Tribunal, Migration & Refugee Division, Guidelines on the Assessment of Credibility, July 2015
[3] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
[4] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.
At the Tribunal hearing the applicant raised concerns about the quality of interpreting at his protection visa interview. He noted that the interpreter attended via telephone and after reading the delegate’s decision, he realised that the interpreter had not fully conveyed his evidence. I have taken this into account and have not drawn any adverse inference due to any inconsistencies or omissions in the applicant’s evidence from the protection visa interview.
I accept that in early 2017 the applicant’s family purchased land in [Village 2] in Ferozepur District, near the Pakistan border. As discussed in the delegate’s decision there is a range of country information regarding the prevalence of illegal sand mining in India; the existence of a ‘sand mafia’ who benefit from illegal sand mining; and reported widespread corruption among politicians, police and other officials in connection with illegal sand mining.[5] A 2017 article in Hindustan Times describes illegal sand mining along the border of Ferozepur district as ‘rampant’.[6] A January 2018 report in Times of India states that, despite 550 First Information Reports (FIRs) being registered for illegal mining in Ferozepur district in 2017, the ‘activity goes on unabated.’ Illegal sand mining ‘remains unchecked’ with ‘scores of trucks and trailers loaded with sand’ found every night on most of the main roads in the district.[7]
[5] Country information as cited at pp 3 – 4 of delegate’s decision
[6] Hindustan Times, Illegal sand mining: Notices to 120 violators in Ferozepur, 4 August 2017
[7] Times of India, 550 FIRs in 2017, yet no let up in illegal sand mining in Ferozepur, 19 January 2018
Considering the above, I accept that the land owned by the applicant’s family in [Village 2] was forcibly taken by persons involved in illegal sand mining in around April to May 2017.

The applicant claims that the land was taken by persons affiliated with the husband, ‘[Mr A]’, of a Congress Party MP. The applicant recalled the MP’s name as [Representative A]. [Details of Representative A deleted.][8] [Details deleted.][9] [Details deleted.][10] Considering the above, I accept the applicant’s claim that a person named [Mr B], who was associated with [Mr A], took the land in [Village 2] and that [Mr A] had influential connections with the Congress Party.
[8] [Source deleted.]
[9] [Source deleted.]
[10] [Source deleted.]
I accept that the applicant and his father attempted to negotiate with [Mr B], with assistance from their village leader, and tried to speak with [Representative B], an MP in Ferozepur District at that time and member of Shiromani Akali Dal (part of the BJP-led National Democratic Alliance).[11] I also accept that they unsuccessfully attempted to file a complaint with the police in July or August 2017. DFAT reports that a key consideration when dealing with Indian police is whether a FIR, being the first reports made by police before they initiate a criminal investigation, is made. Critics of the police claim that police will often refuse to register a FIR; in practice that police action depends on individual police officers and can be arbitrary. The consequences of an FIR not being registered are that the crime is not investigated, and no police remedy will be available.[12]
[11] [Source deleted.]
[12] Department of Foreign Affairs and Trade, Country Information Report: India, September 2023, p 48
I note that, according to the 2018 Times of India report cited above, 550 FIRs were registered for illegal mining in Ferozepur district in 2017, indicating that police in Ferozepur were willing to accept complaints regarding illegal mining during the relevant period.[13] However, I acknowledge that India is considered to have ‘high corruption risks’ with widespread bribery and corruption particularly prevalent in the judiciary, police and public services.[14] As discussed above, the delegate’s decision also cites country information indicating widespread corruption among politicians, police and other officials in connection with illegal sand mining. Considering this, together with my findings above regarding the Congress Party connections of the persons who took the land, I accept that the police refused to accept a complaint by the applicant and his father.
[13] Times of India, 550 FIRs in 2017, yet no let up in illegal sand mining in Ferozepur, 19 January 2018
[14] Department of Foreign Affairs and Trade, Country Information Report: India, September 2023, p 10
The applicant claims that his father was arrested in September 2017 in connection with false drug trafficking charges, orchestrated by the sand mafia who took their land. He also stated that his father was an opium user and had previously been arrested and imprisoned in 2012 and 2014 in connection with drug use. Country information indicates that Punjab is a significant consumer base and transit point for drugs from Afghanistan and Pakistan. Between March 2017 and January 2020, authorities seized 1,294 kg of heroin in the region, prompting calls for the introduction of stricter drug laws. According to a February 2020 news report, the Punjab government was seeking amendment of the Narcotics Drugs and Psychotropic Substances (NDPS) Act to make punishment for small seizures of heroin more stringent, by decreasing the current legal limit to hold 250 grams to 25 grams. The report notes that under the current provisions of the NDPS Act, a person can be imprisoned for 6 months for recovery of less than 5 grams of heroin and fined Rs 10,000. The offence is, however, bailable. For larger seizures, a person can be imprisoned for up to 20 years with fines of up to Rs 2 lakh.[15]
[15] The New Indian Express, Punjab SOS to Centre for stricter drug law, 3 February 2020
Given the applicant’s father’s previous arrests and imprisonment for drug use and ongoing drug use, I have doubts as to whether his arrest in September 2017 was connected to the sand mafia. When raised with the applicant at the hearing, he responded that his father used opium, not heroin, and the timing of the arrest indicated that it was arranged by the sand mafia. I acknowledge that opium and heroin are different types of opiates, with heroin being more refined. However, opium is the source opiate of heroin.[16] I acknowledge that his father was arrested within a few months of attempting to file a complaint with the police regarding the land seizure. However, it is unclear why the sand mafia would consider there to be a need to orchestrate false charges against the applicant’s father. The only action he was pursuing regarding the land was attempting to speak with MP [Representative B], which had not eventuated at the time of the applicant’s departure from India. Given the influence and political connections of the sand mafia, it is unclear why they would feel threatened by the applicant’s father regarding the land seizure to a degree that would cause them to arrange for false drug trafficking charges to be brought against him.
[16] Bicycle Health, Opium vs Heroin: What’s the difference, 15 September 2023
Aside from one ‘scuffle’ or altercation with the sand mafia prior to his father’s arrest, the applicant did not claim that his father was subjected to any threats, harassment, or harm from the sand mafia prior to his arrest in September 2017. I consider this further supports a finding that the sand mafia did not consider his father to pose any significant threat. I also consider it plausible that the applicant does not know the full extent of his father’s involvement in drug-related activities.
Considering the above, I do not accept that the applicant’s father’s arrest and imprisonment in September 2017 was connected with the seizure of the land by the sand mafia. It follows that I do not accept that his father was contacted by the sand mafia following his release from prison last year threatening that if he tries to do anything about the land he will ‘not come out again’.
The applicant claims that following his father’s arrest, he was subjected to harassment and threats from members of the sand mafia. This consisted of 12 members of the sand mafia coming to his home in October 2017 and delivering a threat to his mother and grandmother that if applicant did not give up his claim to the land, they would kill him or do the same to him as they did to his father. On 3 or 4 other occasions in October to November 2017, 15 or 16 members of the sand mafia were sighted in the vicinity of his house. In October or November 2017, a car driven by members of the sand mafia caused him to fall off motorcycle. In November 2017, while attending court in connection with his father’s case, the police approached him and told him to give up his claims to the land. For the reasons discussed below, I do not accept any of these claims as credible.
i.I have found above that the sand mafia did not orchestrate false drug trafficking charges against the applicant’s father and have not accepted that they considered his father to pose any significant threat regarding the land seizure. The applicant stated that he did not take any further action following his father’s arrest regarding the land seizure, including to pursue a claim over the land. I find that there was no reason for the sand mafia to view the applicant as a threat in regard to the land seizure, such that they would take any of the actions outlined above. I also find that there was no reason for the police to warn the applicant to give up his claims to the land. I do not accept that the applicant experienced any harassment, threats or harm from the sand mafia or police in the period following his father’s arrest.
ii.According to the applicant’s evidence at the hearing, he remained in his village until early December 2017, before moving to [City 1] until his departure for Australia. He returned to his village shortly prior to his departure from India for a brief visit to his mother and grandmother and also visited his father in [prison]. While it was first raised at the Tribunal hearing, I accept that the applicant moved to [City 1] in early December 2017. However, given my findings above, I do not accept that this was because of a fear of harm from the sand mafia or anyone else. I find the applicant’s return to his home village shortly prior to his departure, during which he visited his family home and his father in prison, to further undermine his claim to fear harm in his local area.
iii.I find the applicant’s delay in applying for protection to be a relevant factor in considering the credibility of his claims to fear harm from the sand mafia at the time of his arrival in Australia. I have had regard to the applicant’s explanation that he was not aware until May 2018 that he could apply for a protection visa. However, given that he consulted an agent in March 2018, I do not find this explanation to be convincing. I acknowledge that the delay was not lengthy and have not given it significant weight. However, I find it to contribute to the credibility concerns outlined above.
Considering the above, I do not accept that the applicant experienced any harassment, threats or harm from the sand mafia or police in the period following his father’s arrest and his departure from India. I therefore do not accept that the sand mafia visited his mother in March 2018 to query the applicant’s whereabouts. The applicant has not claimed to have received any contact from the sand mafia following his arrival in Australia.
Protection obligations assessment
Given my findings above, I find that there is not a real chance that the applicant would be harmed, including physically or through the bringing of false criminal charges, by the sand mafia, police, or anyone else, in connection with the land seizure if he were to return to his home area in Punjab.
The applicant suggested that he may need to pursue a claim over the land in [Village 2] if he returned in order to earn a livelihood. As acknowledged by the applicant, his family owns [number] acres of land in [Village 1] and currently earn income through the lease of half of that land. He, or his family members, have not taken any action to pursue a claim over the land in [Village 2] following his father’s arrest in September 2017. Considering the available evidence, I find that the applicant would not take any action to pursue a claim over the land if he were to return to Punjab.
As outlined above, the applicant raised concerns about his ability to return to India given his personal circumstances in Australia involving his wife’s pregnancy and carer responsibilities. As discussed with the applicant, these are not relevant to my assessment of whether he would face harm in India as a refugee or under complementary protection.
The applicant has not claimed to fear harm for any other reason if he returns to India and I find that no protection claims arise on the accepted facts. I find that the applicant does not have a well-founded fear of persecution and is therefore not a refugee.
I have therefore considered the complementary protection criterion in s 36(2)(aa), namely whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to India, he will suffer significant harm. ‘Significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. I note that the ‘real risk’ threshold for complementary protection has been held to be the same as the ‘real chance’ threshold under the refugee criterion.[17] For the same reasons outlined above, I find there to be no real risk of the applicant suffering significant harm from the sand mafia, police, or anyone else, in connection with the land seizure if he returns to India. I find that no other protection claims arise on the accepted facts that would give rise to complementary protection obligations.
[17] MIAC v SZQRB (2013) 210 FCR 505
Conclusion
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or 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.
Mia Bailey
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 1516

14 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction