1909589 (Refugee) - [2024] AATA 1381

1909589 (Refugee) [2024] AATA 1381 (13 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1909589 & 2104139
COUNTRY OF REFERENCE:                   India
MEMBER:Penelope Hunter
DATE:13 February 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal:
i.affirms the decision not to grant the applicant a Temporary Protection visa in matter 1909589 made on 21 August 2017; and
ii.sets aside the decision in matter 2104139 to refuse the applicant a Safe Have Enterprise visa, application made on 10 October 2020 and substitute it with a decision that the visa application was not valid.

Statement made on 13 February 2024 at 10:39am
CATCHWORDS
REFUGEE – protection visa – India – particular social group – land dispute with cousin – credibility concerns – inconsistent evidence – effective protection measure – localised chance of harm – internal relocation – decision under review affirmed
REFUGEE – protection visa – India – arrival in Australia by sea – Territory of Ashmore and Cartier Islands – Part 7-reviewable decision – section 91K bar not applicable – validity of second visa application – section 48A bar not lifted – invalid visa application – decision under review substituted
LEGISLATION
Migration Act 1958 (Cth), ss 5AA, 5AAA, 5H, 5J, 5L, 36, 46A, 48A, 48B, 65, 91K, 411, 427
Migration Regulations 1994 (Cth), Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Re Gustavo Carlos Saavedra Morato v the Minister of Immigation Local Government and Ethnic Affairs [1992] 39 FCR 401
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 dependant.
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 29 March 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The applicant claims to be a citizen of India.
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] May 2013. He was initially considered an unauthorised maritime arrival (UMA) as defined in s 5AA of the Act due to the method of his arrival to Australia, and was subject to s 46A of the Act.
The applicant was previously granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.
The applicant applied for a Temporary Protection visa (TPV) on 21 August 2017 (the first visa application). A delegate of the Minister decided to refuse to grant this visa on 29 March 2018.
On 29 March 2018, the Department referred the matter to the Immigration Assessment Authority (IAA) for a review of the delegate’s decision. On 27 April 2018, the IAA affirmed the decision under review.
The applicant sought a further review before the Federal Court. Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447, the applicant is not considered an UMA due to this arrival method. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and the subsequent decision to refuse to grant the applicant a TPV is not a ‘fast track decision’ (as defined in s 5(1) of the Act). Instead, it is a Part 7-reviewable decision able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411. On 23 January 2019, the Minister withdrew from the Federal Court proceedings.
The then Minister purported to lift the statutory bar in s 91K and the s 48A bar against the making of a further protection visa application in Australia. The s 48A bar was purportedly lifted pursuant to a Ministerial Determination under s 48B dated 8 November 2019, which specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on subsections 5H(2), 36(1B), or (1C) or paragraphs 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act. Following this, the applicant purported to make a second application for a protection visa, this time a Safe Haven Enterprise visa (SHEV) (the second visa application) on 10 October 2020.
The second visa application was refused by a delegate on 8 March 2021. An application for review of that decision was made to the Tribunal on 31 March 2021. However, the second visa application is, and always was, barred under s 48A. Accordingly, the second visa application was invalid. The Tribunal has no option other than to set aside the delegate’s refusal of the second visa application, matter 2104139, and substitute it with a decision that the second visa application is invalid.
The decision under review, the applicant’s first visa application, remains a valid visa application and the issues that arise on review are whether the applicant is owed Australia’s protection under the refugee or complementary protection criteria contained within the Act.
CLAIMS AND EVIDENCE
The applicant was born in [year] in Nagaur district, in the state of Rajasthan, India. He claims to be of Jat ethnicity and to follow the Hindu religion. He was educated until year 9 level and claimed to previously have worked in agriculture. He is married and has [number] children. His wife, children, parents and siblings all continue to reside in India.
Entry interview
Following his arrival in Australia, the applicant participated in an Irregular Maritime Arrival Entry Interview with an officer of the Department on 28 June 2013.
TPV application
As part of his first visa application, the applicant submitted photocopies of his Indian Income Tax Identity card and his Indian driver’s licence. He claimed that prior to his arrival in Australia he had resided primarily in his home village in Didwana Tehsil, Nagaur district, with the exception of periods in [Town 1] in Nagaland while working in 2009 for a few months and then for three weeks in 2011. The applicant claimed to have worked in agriculture in India from 2005 to 2011. From 2011 to February 2013 he claimed to be unemployed and supported by friends. He also provided a statement which set out the following claims:
i.In India the applicant owned a [business] with his cousin, [Mr A]. They bought the land, located in Didwana Tehsil, Nagaur district, Rajasthan, together in 2009. The land was in two or three parcels, some in his village and some on the other side of the village. The land was used for agriculture. They had a contract and it was agreed that the work and the profits would be shared.
ii.They worked on the land and after some time they fought as [Mr A] was selling the agricultural produce and also the land for people to live on. He was not giving the applicant a share of the profits. Their arguments began in 2011 and they had two or three fights. [Mr A] broke the applicant‘s tractor and then his bike.
iii.After the agricultural season in 2011, the applicant asked [Mr A] for the money he was owed, [Mr A] became angry and attacked the applicant with a glass bottle. He sustained an injury to his eye.
iv.After the agriculture season in 2012, he again asked [Mr A] for the money. [Mr A] and approximately five men came on cars and motorcycles and attacked him with a rod. He suffered an injury to his eye, hand and foot. He has scars from these attacks.
v.After the second time he was attacked in 2012, [Mr A] went to his home and said abusive things and that he would come back in the evening to kill him. During the night [Mr A] came again with four or five vehicles of men. [Mr A] was carrying weapons including rods and swords and broke the front door down. Upon seeing [Mr A] approach, the applicant fled out the back door and caught the train to Calcutta. He left his home [in] February 2013. He flew to [Country 1] on [date] February 2013 and cannot recall if he then left India from Calcutta or Bombay. On [date] or [date] March 2013 he flew to [Country 2] by plane, and then he travelled by boat to Australia.
vi.[Mr A] also ran an alcohol smuggling business in Haryana, Rajasthan, Gujrat and Delhi and has connections in these areas. He had seen some of the men with [Mr A] in the newspapers or on the news where they were referred to as criminals who smuggle alcohol. They also drove the same cars as the criminals he saw on the news. He had also been told by other people that the men that [Mr A] associates with are criminals.
vii.He tried twice in both 2011 and 2012, to tell the police when [Mr A] attacked him. They would not listen and they never came to visit the applicant because [Mr A]’s friends are powerful men. He did not go to the Indian Government because [Mr A] is connected to powerful people and he did not think that they would help him.
viii.His wife told him that after he left India, [Mr A] went to his house and threatened his wife and children to tell him where the applicant was. His wife and children left the house and moved to a different part of Nagaur district.
ix.If he returns to India he is afraid that [Mr A] will kill him. He believes that [Mr A] will kill him even though he sold their land. The land was sold to a colony who live on it, and [Mr A] lives in one of the three houses that he has built on the land.
x.[Mr A] has a lot of connections in different parts of India due to his smuggling business. The applicant is afraid that if he lived anywhere else in India people would recognise him and tell [Mr A] where he was. They would recognise him because [Mr A]’s business associates met the applicant when he was working on the land with [Mr A].
Department decision
The applicant was invited to attend an interview before the delegate of the Minister on 28 March 2018. The applicant has provided the Tribunal with a copy of the decision record of the delegate. The Tribunal has reviewed the recording of the applicant’s interview and is satisfied that the delegate has accurately recorded the information presented. In their decision record, the delegate raised concerns about the reliability of the applicant, yet they accepted that the applicant had a land dispute with his cousin and that he may have been threatened and beaten on a couple of occasions. Although the delegate was willing to accept that [Mr A] may have been violent in his encounters with the applicant, he did not accept that he had a profile of prominence as a criminal across India. It was found that the applicant’s fear of harm was not for a reason provided in s 5J(1)(a) of the Act and that the applicant did not meet the complementary protection criteria of the Act.
IAA review
On 28 April 2018, the IAA reviewed the decision to refuse the applicant’s TPV application. The IAA decision record is on the Department file, however the Tribunal has not had regard to the findings or reasons in that decision. The Tribunal acknowledges that as per DBB16 v MIBP (2018) 260 FCR 447, the applicant is not a fast tracked applicant and the decision of the IAA is not a legally valid decision. The applicant did not provide any additional documents or submissions to the IAA reviewer.
SHEV application
On 10 October 2020 the applicant lodged the second visa application. In this application he also claimed to have been unemployed from January 2011 to February 2013 in India. The application was accompanied by a statement that set out his claims for protection which was identical to that submitted with his first visa application form.
The applicant attended an interview on 17 February 2021 with a delegate of the Minister in relation to his second visa application. On 8 March 2021, the delegate refused the visa, as they were not satisfied that Australia had protection obligations to the applicant under the Act. The applicant has provided a copy to the Tribunal of the decision record of the delegate. The Tribunal has reviewed the recording of the applicant’s interview and is satisfied that the delegate has accurately recorded the information presented. The delegate found that the applicant was not credible and was not satisfied that the applicant was involved in a dispute or conflict with his cousin.
Tribunal application
After the applicant was renotified of the delegate’s decision in relation to the first visa application on 29 March 2019, the Tribunal received an application for review from the applicant on 17 April 2019. The applicant also submitted a copy of the decision record of the delegate.
On 31 March 2021, the Tribunal received an application for review from the applicant in relation to the second visa application. Again, the applicant submitted a copy of the decision record of the delegate under review.
Pursuant to s 427(2) of the Act, the Tribunal determined to combine the hearing with the review of matter 2104139. The applicant appeared before the Tribunal on 18 December 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. The Tribunal again discussed with the applicant at hearing the decision to combine the review applications. The applicant did not raise any objections and confirmed his consent to a joint hearing of his claims.
The applicant was granted time until 5 January 2024 to submit to the Tribunal any corroborating material in the media that his cousin [Mr A] was a well-known gangster and the subject of several media reports relating to his illicit activities and violence. No further documents or material were forthcoming from the applicant.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Nationality and identity
On the basis of the identity evidence submitted to the Department, including copies of his Indian Income Tax Department identity card and his driver’s licence from India, the Tribunal accepts that he is who he claims to be and that he is a citizen of India. The applicant’s claims will be assessed on this basis.
Is the applicant a refugee?
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. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
As the decision-maker, the Tribunal is not required to make the applicant’s case for him. 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: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169–70.).
The Tribunal had several concerns about the reliability of the applicant’s evidence and considers that he has significantly embellished his evidence for the reasons discussed below.
Firstly, it is considered that the applicant has provided inconsistent evidence as to his arrangement with his cousin [Mr A] and whether there was a contract or any other agreement documenting their partnership. In his statement filed with the visa applications he has set out that he had a contract with his cousin. Yet the delegate records that when interviewed on 22 March 2018, the applicant claimed there were no written documents and that he was never the owner of the land because it had been purchased only by his cousin [Mr A]. Further, he said that [Mr A] had promised to register him as an owner of the land but did not. In the decision record of the delegate dated 8 March 2021, in relation to the second visa application, the delegate sets out that the applicant claimed when interviewed that there was a contract in place. Yet this time when questioned in relation to his previous evidence said that the land was only in [Mr A]’s name but he was not sure but believed there would be an agreement that they would share profits. At the Tribunal hearing the applicant initially claimed that there was an oral agreement in respect of their partnership arrangement and that nothing was written. He later changed his evidence and said that he was documented as an owner of the land and that he had obtained a copy of the paperwork recording his ownership that he had taken to the police after [Mr A] had attacked him and to assist with reporting the incident. The Tribunal was unable to reconcile these differing versions of the circumstances relating to the ownership of the land and the business arrangements that he had with [Mr A], and whether there was ever any formal contract that reflect the applicant’s claims. It is considered that they undermine the reliability of the applicant as a witness.

Additionally, the evidence of the applicant as to what had become of documents relevant to his partnership arrangements with his cousin raised further concerns for the Tribunal regarding his credibility. As set out above, the applicant said that he had obtained copies of the relevant documents after [Mr A] had attacked him the first time to take to the police to assist with his complaint. When the Tribunal asked the applicant about copies of the documents, whether he had also taken them to a court or lawyer, the applicant then said that [Mr A] had stolen them from him when he attacked him. When asked about the timing of this theft he indicated this had occurred at the time he was first attacked by [Mr A] when he was on the disputed land. He said that it was his attempts to source these documents that had angered [Mr A] and prompted him to attend with several others to beat and threaten him. The Tribunal put to the applicant for comment that it was illogical that [Mr A] could take the documents from him at this time when he had early told the Tribunal that he had only obtained them after the attack to assist his report to the police. The applicant then changed his evidence and said that first the fight happened, then he went to the police and it was after that [Mr A] had grabbed the papers. The Tribunal asked the applicant how [Mr A] was able to get these papers when he and his extended family were in his home. In response, the applicant said that he had left all the paperwork in a small hut on the land they had purchased and [Mr A] took them from there. In this version there was no confrontation or attack upon the applicant, and [Mr A] was able to seize the papers in his absence. The applicant’s claim that important land ownership and partnership documents were able to be accessed in this way was also problematic for the Tribunal and it questioned the applicant as to why he had not taken steps to secure the documents if he was in dispute with [Mr A]. By way of reply, the applicant said that it had never come to his mind that [Mr A] would grab the papers, [Mr A] was a ‘big bad person’ who would do anything and the applicant said that he had never thought that [Mr A] would turn out like that. The adjustments to the applicant’s evidence as to when he obtained documents relating to his interest in the land, together with the implausibility of the fact that the applicant would leave the important documents unsecured further undermine for the Tribunal the credibility and reliability of the applicant.
The Tribunal does not accept as reliable the claims of the applicant about the profile of his cousin [Mr A]. The applicant has conceded in the statements that supported his visa application that he did not mention at his arrival interview that [Mr A] was accompanied by other men when he fought with the applicant and that he had only initially claimed that his conflicts were solely with [Mr A]. In his statement, he sets out that he wished to clarify that what he meant was that it was only [Mr A] who came to his house during the day but [Mr A] had come to his house at night with other men. The Tribunal is not persuaded by this attempt by the applicant at clarification because in his evidence to the Tribunal, and it is also recorded in the delegate’s decision that during his first visa interview, he identified two occasions when he was confronted by [Mr A] about the dispute. On each of these occasions the applicant has claimed he was with other men. During his interview in relation to his first visa application it is documented that he claimed that first attack was in the afternoon at the land and the second time was in the streets behind the applicant’s home.
It is also problematic for the Tribunal that the applicant would go into partnership with [Mr A] who he asserts was known to be involved with criminals and illegal activities such as the smuggling of alcohol. In response to the Tribunal’s concerns on this issue, the applicant offered that he was not aware of [Mr A]’s background in the beginning and only later became aware of it through media reporting. In assessing this explanation the Tribunal has also considered the evidence that the applicant was a close relative of [Mr A], and that they had lived in the same small village for most of their lives up to this point. The Tribunal does not accept it as probable that the applicant was unaware of his cousin’s background until he saw events reported in the media. Additionally, as to this reporting, the applicant claimed to the Tribunal that [Mr A]’s name often appeared in the news with “rowdy people who had done bad things”. The applicant said that he could produce evidence of [Mr A]’s reputation through media reporting. Consequently, he was given time following the hearing to submit any relevant material, yet no supporting evidence was forthcoming. The applicant has consistently failed to produce any material to support his application. He also told the Tribunal that [Mr A] was very dangerous and he was, according to the police, “a most wanted man” and that “the police were in search of him”, because of his illegal activities. He claimed that political leaders would support [Mr A] because India was run by money. The Tribunal considered that if [Mr A] had this profile as claimed by the applicant, and the police were searching for him and wished to take action against him, the Tribunal is not satisfied that they would refuse to register, investigate or act on any complaint by the applicant. It is considered that his evidence as to [Mr A]’s profile, his alcohol smuggling business and his connections to criminal gangs or politicians, is manufactured to assist his claims.
The applicant’s evidence has also changed as to how many people were involved in his confrontations with [Mr A], how many occurred, where they occurred and the injuries he received. For example, in his written statement the applicant claimed he had two of three fights with [Mr A]. He states he was first attacked after the agricultural season in 2011 by [Mr A] and received an injury to his eye and a second attack occurred after the agricultural season in 2012 involving [Mr A] and five men in cars. At this time he suffered another injury to his eye, and also to his hand and foot. Finally, the applicant has written that a third confrontation was when [Mr A] came to his house and said abusive things and that he would come back in the evening and kill him. The applicant claimed that he returned at night with four or five vehicles of men carrying rods and swords who broke down his front door, but the applicant wrote he managed to go out the rear door and run away. It is set out in the decision record of the delegate, before the Tribunal, that during the interview in relation to his first visa application, the applicant spoke only about two incidents. The first in 2011 on the land after which the applicant was in hospital for two or three days, and a second event 12 months later in April or May 2012 when [Mr A] came to the applicant’s home and the applicant escaped from the house due to fear of [Mr A]’s threats that he would return the same evening. In his second visa interview, the delegate records that the applicant claimed he was attacked at least five times by [Mr A]. In evidence to the Tribunal, the applicant claimed that he was with his wife on the land, and [Mr A] came with 10 or 15 people to attack him; they all hit him and he sustained injuries to his eye, hand and foot. Afterwards, he called a friend to take him to hospital and he was there for just a few hours. He further told the Tribunal that a second incident occurred a few weeks later, less than a month, and not 12 months later as he had told the first visa delegate. His evidence before the Tribunal also contained a new version of events regarding an attack that occurred near his home. This time he claimed that in the street near his house [Mr A], together with five or six people on bikes, stopped him and beat him. During this attack he sustained some cuts and injuries to his arms, but did not go hospital. [Mr A] threatened him “why are you still here, you get out of here”. These differing versions of the applicant’s conflicts with [Mr A] raise concerns for the Tribunal as to the accuracy of the applicant’s claims regarding the extent of his actual conflict with [Mr A]. While the Tribunal accepts that some time has passed since the events, it is not considered that the differences in the evidence are minor discrepancies. They go to the timing of the events, the circumstances in which they took place, the number of incidents and the number of people involved, all of which has constantly altered. These discrepancies further demonstrate to the Tribunal the unreliability of the applicant as a witness and his claims of [Mr A] being involved with a gang, or associated with criminals who attacked the applicant.
It is particularly the timing of events, as presented by the applicant, that demonstrates to the Tribunal the lack of accuracy of his evidence. This is because in his first visa application the applicant sets out that he had worked in [Town 1], Nagaland state for several months in 2009, a date prior to when he claimed to have purchased the land with [Mr A]. He also sets out that he returned to Nagaland for a few weeks in 2011. The first visa delegate records in his decision record that the applicant claimed on 22 March 2018, that he ceased working the land he bought with [Mr A] after the first time [Mr A] attacked him in 2011. After this, the applicant claimed claimed that he did not see [Mr A] for the next 12 months until the second incident in April or May 2012. The first visa delegate further records that when asked about his whereabouts after the second incident until his departure from India, the applicant said he was living and working with his cousins, and that his relatives’ place was very close to his village. In relation to his second visa application, in the decision record of the delegate dated 8 March 2021, the applicant is recorded as stating that he fled his home in 2012 and went to Nagaland, then made arrangements to leave India. Then at the Tribunal hearing, there appeared to be a third version of events. His stay in Nagaland was considerably longer and he said that he was there for five or six months, he then returned briefly to Rajasthan because his licence had expired, and then went back to Nagaland for one or two weeks approximately a week before he departed India. The Tribunal considers that the applicant has embellished his evidence about when he was in Nagaland, and consequently the assertion before the Tribunal that he had to go into hiding in Nagaland to avoid harm from [Mr A], in order to assist his claims for protection.
The applicant did not mention in his written claims, neither is it recorded in the decision record of the delegate, dated 29 March 2018, in relation to his first visa application that he was in hiding in Nagaland before his departure from India. Aside from these omissions, he advanced a new claim at the Tribunal hearing that he was threatened while in Nagaland by [Mr A] which prompted his departure from India. The Tribunal raised with the applicant concerns about the late advancement of this claim and the absence of any reference to such an event in the information already before the Tribunal. In response, the applicant said that because of the stress and tension arising from his situation he forgets things. While the Tribunal accepts that the applicant’s visa process has been long and with some complication, it is not satisfied that it accounts for the omission of the claim or that it offers a reasonable explanation as to why the claim was not raised before the primary decision was made in relation to either the first or second visa application. Not only was this a new claim but additionally his evidence lacked consistency as to the delivery of the alleged threats. The applicant told the Tribunal that he was threatened by [Mr A] when he returned to Nagaland for the second time after renewing his licence. At first the applicant said that he got calls while in Nagaland from [Mr A]’s gang members; these threats were for him to vacate his area and never come back. Later the applicant said that local gang members actually confronted him in person and threatened him in Nagaland. When asked about this change, the applicant further altered his evidence and claimed that what actually happened was that [Mr A] had called local gang members in Nagaland to come and threaten him. The Tribunal questioned the applicant as to why [Mr A] would continue to threaten him because the applicant had earlier said that the substance of the threat was that he should leave his area which he had done when he relocated to Nagaland. The applicant again modified his evidence and said this time the threats was that he should go back to his hometown so they could ‘finish him off’. The unreliability of this claim as presented at the Tribunal hearing was further undermined by the applicant’s later evidence that when he fled the threats in Nagaland, the first thing he did was return to his home area for a short period. This is the very place he claimed [Mr A] wished for him to go so he could ‘finish him off’. Overall the Tribunal found the evidence lack reliability and they also demonstrated to the Tribunal that his claims that he had to go into hiding in Nagaland and was subsequently threatened by [Mr A] in Nagaland were not factual.
Further issues relating to the reliability of the applicant’s evidence were presented for the Tribunal in relation to the applicant’s claim that since he departed India, [Mr A] had gone to his house and threatened harm to his wife and children unless they disclosed to him the applicant’s location. Firstly, the applicant told the Tribunal that his wife and children had already relocated to live with his in-laws prior to the applicant’s departure from India, they would not have been at his family home to receive any threats. He also maintained that there was no contact between his family and [Mr A] since his departure. The applicant also told the Tribunal at the hearing that his wife had been present at the land when [Mr A] and the gang members attacked him the first time yet nothing happened to her, she was not harmed or threatened by [Mr A] or the people he had brought with him as she went inside the hut. Further, the applicant did not raise with the Tribunal at hearing any ongoing threat to his family. The Tribunal specifically identified to the applicant its concerns as to whether [Mr A] would have any ongoing interest in him in 2024 given his claims that the land had been sold and there had been no repercussions for any member of his family although he claimed that they invested in his land. The applicant again did not dispute that no other member of his family had been threatened and offered only that [Mr A] was bent on ‘finishing him off’.
Also problematic for the Tribunal was the evidence of the applicant to the Tribunal that he had borrowed money, around 20 lakhs, from his parents and family to fund his half share of the land with [Mr A]. The Tribunal asked the applicant whether he had sought the assistance of his family to mediate with [Mr A] when they fell into dispute as they had assisted him with the investment and he claimed in response that no members of his family wished to become involved. The Tribunal noted that they already were involved because due to this dispute the applicant was in a position of not being able to repay their investment in his business. The applicant asserted again that other family members were not interested in being involved. The Tribunal also questioned the applicant about family pressure and judgement that [Mr A] would experience if he was not honourable in his business dealings with the applicant or harmed him. In response, the applicant claimed that [Mr A] did not care what the family thought and had isolated himself from the rest of the family and did not interact with them. Then contrary to this claim about [Mr A]’s lack of connection with his family and his lack of concern about their opinion, the applicant later suggested to the Tribunal that it was [Mr A]’s concern about his reputation in the family, because the applicant was seeking assistance from family members, that had prompted [Mr A] to pursue him in Nagaland after the applicant and [Mr A] had control of the land. These constant adjustments by the applicant to his evidence repeatedly undermined for the Tribunal the reliability of his claims.
Findings on the applicant’s claims
Despite these considerable credibility concerns, it is acknowledged that the applicant has consistently claimed that he was in dispute with his cousin [Mr A], over land. The Tribunal has some concerns that they had a 50/50 partnership as the applicant claims; however, it is accepted that the applicant, as part of his arrangement with [Mr A], worked the land and invested financially either through his own funds, or those he had loaned from other family members in the business of farming it. The Tribunal is does not accept that the applicant was ever documented as an owner of the land.
It is accepted that the applicant fell into dispute with [Mr A] over the income derived from the land and the share of the profits. The Tribunal also accepts that this dispute may have turned physical and that the applicant may have been harmed in a fight with [Mr A]. It is accepted that this harm may constitute significant physical ill-treatment of the applicant. It is not accepted that [Mr A] and other men attacked him, or that [Mr A] engaged other men to threaten, harass or beat the applicant. The Tribunal does not accept that criminal gangs, or other individuals, were involved in the applicant’s dispute with [Mr A]. As the Tribunal does not accept that [Mr A] engaged anyone else to harm the applicant, it does not accept that [Mr A] had any business connections that would recognise the applicant.
The Tribunal finds that the applicant left the land following his dispute with [Mr A] and he did not continue to work the land for approximately a year prior to his departure. On the evidence the Tribunal is not satisfied that there was anything other than two incidents where he was physically harmed by [Mr A]. From his evidence at hearing these incidents occurred in close proximity in 2011. However, on the most generous interpretation of the various renditions of his experiences in India throughout his visa application process, the Tribunal finds that the applicant did not receive any further threats or any serious harm from [Mr A] after May 2012.
The Tribunal accepts the evidence of the applicant that the land, the subject of their dispute, has been sold, without any payment to the applicant. However, it notes again a discrepancy in the evidence of the applicant as to whether this occurred prior to his departure, as he told the delegate during his first visa interview, or after he arrived in Australia, as he asserted to the Tribunal.
The Tribunal does not accept that the applicant continued to be threatened or harassed by [Mr A] once he left the land. It does not accept that he had to go into hiding in Nagaland at all, or that he was threatened by gang members, [Mr A] or anyone else in Nagaland. The Tribunal does not accept that [Mr A] has threatened the applicant’s wife, or any member of his family.
It is not accepted that [Mr A] ran an alcohol smuggling business, that he was a known or wanted criminal, or that he had any political connections. It is not accepted that [Mr A] has a lot of connections in different parts of India such as Haryana, Gujurat and Delhi. The Tribunal finds that the applicant has considerably embellished [Mr A]’s profile and his harassment of the applicant to assist his claims for protection.
The Tribunal finds that the dispute over the land is only between the applicant and [Mr A] and no other family members have been involved in the dispute. Consequently, the Tribunal has some reservations as to whether the applicant is a member of a particular social group. Pursuant to s 5L a member of a particular social group must have a characteristic that is innate or immutable. It is difficult to attribute the fact that the applicant is in a dispute over land as being and innate or immutable characteristic. It is however accepted that the applicant’s perceived interest in the land that he worked is fundamental to his identity as is required by s 5L. The applicant’s land dispute with [Mr A] is the essential and significant reason for the harm that he fears. In Morato v MILGEA (1992) the Federal Court acknowledged that social groups could have interests in common such as landowners,[1] thus the applicant claiming an interest in land and being in conflict over that interest is a characteristic that distinguishes him and other groups of persons from the rest of society. Therefore, the Tribunal does accept that the applicant is a member of a particular social group as claimed.
[1] Re Gustavo Carlos Saavedra Morato v the Minister of Immigation Local Government and Ethnic Affairs [1992] 39 FCR 401 at [65]

However, a person does not have a well-founded fear of persecution pursuant to s 5J(2) of the Act if effective protection measures are available in a receiving country. Despite the considerable credibility concerns the Tribunal holds in respect of the applicant as a reliable witness, it does accept that he has at least on one occasion made a complaint to the police. While the Tribunal has concerns over the tenacity with which he pursued this complaint and the relevant evidence he offered in support of his claims, it is accepted as probably that the police did not take any action. In this regard the Tribunal has had regard to DFAT reports that in practice police action depends on individual officers and can be arbitrary,[2] and that people in India are hesitant to rely upon them.[3] DFAT also reports allegations that some police forces are poorly equipped to fight crime, and may lack access to basic amenities such as running water or toilets. Dozens do not have access to a vehicle and hundreds do not have telephones. Some police officers complain that they are overworked or lack adequate training.[4] In this sense protection from the state for the applicant via the police in India may not be accessible or durable as is required by s 5LA of the Act to be an effective protection measure.
[2] DFAT Country Information Report: India, 29 September 2023at paragraph 5.6
[3] As above at 5.4
[4] DFAT Country Information Report: India, 29 September 2023 at paragraph 5.7
However, the real chance of persecution to the applicant must relate to all areas of a receiving country. The applicant asserted before the Tribunal that he could not return to the land in dispute as it had been sold by [Mr A]. Although he was evasive when the Tribunal questioned him about the whereabouts of [Mr A], saying he lived a little bit away, the applicant maintains that [Mr A] regularly visits his home village of [Village 1], Didwana Tehsil, Nagaur District Rajasthan. If he was to return to his family home, there is a low, but it is accepted to be nevertheless a real chance, that the applicant may be perceived by [Mr A] as reviving his claims for compensation in respect of the land. However, in the particular circumstance the applicant’s fear of harm arises from being in contact with [Mr A], and consequently the Tribunal finds that the applicant’s fear of harm is limited and localised to his village of [Village 1], Didwana Tehsil, Nagaur District Rajasthan and the immediate surrounding area.
When asked whether he could relocate at the hearing, the applicant told the Tribunal that it would not be possible for him to relocate as [Mr A] was a well-connected and a most sought after criminal figure. The Tribunal does not accept this claim. It also does not accept that any of [Mr A]’s business connections threatened or harmed the applicant or that they would recognise him in the future.
The applicant also told the Tribunal that [Mr A] had taken a vow to finish him off and that vows in India can last a long time. Given that over a decade has passed since the dispute arose and the land in question being sold, the Tribunal does not accept as credible the claim that any vow of [Mr A] would not motivate him to actively pursue the applicant outside his home village. As set out above, Tribunal does not accept that [Mr A] pursued or threatened the applicant after May 2012 or that [Mr A] would actively take steps to pursue the applicant in the reasonably foreseeable future were he to return to India. It is not accepted that [Mr A] has the intention or the connections to pursue the applicant outside his home village.
As to whether it is reasonable practicable for the applicant to relocate, DFAT reports that there are no legal barriers to internal relocation and India has a long history of internal migration. Reportedly, relocation is mostly intra-state rather than interstate; however, in the northern states generally all people speak Hindi, giving greater scope for internal migration.[5]
[5] As above at paragraph 5.19
The Tribunal also places weight on the information of the applicant, as recorded by the delegate in relation to his first visa application, that he was able to live very close, less than 20 kilometres, from his home village of [Village 1], with his cousins, for several months without incident before departing India. According to the applicant, his wife and children have now moved to another village in Rajasthan. His evidence is that this is over eight kilometres away from his former home. As set out above the Tribunal does not accept that his wife and children have been harassed or pursued there by [Mr A]. Consequently the Tribunal considers that the real chance of harm to the applicant is limited to a radius of less than 20 kilometres from the area of [Village 1].
Further, as to whether it of practical for the applicant to relocate. His immediate family are no longer in his village. He has no ongoing interest in land in his home village. He has skills in agriculture, he speaks Hindi, Marwari and his English skills have improved while in Australia. He has significant work experience in agriculture, cleaning and gardening and the capacity to work. He has demonstrated resilience living and working outside his home country in a foreign environment for over a decade. It is considered that the applicant possesses valuable and employable skills in India.
In the past the applicant has also demonstrated a willingness to relocate a considerable distance to Nagaland, over 2,500 kilometres[6] from his home state of Rajasthan, for several months for employment. His family is well supported by his in-laws until he establishes himself upon his return to India. Given the independence and resilience demonstrated by the applicant to date, it is considered practical that he could establish himself, and if necessary a home for his family outside his home village. As discussed with the applicant at hearing it is considered that he could relocate to districts in Rajasthan south of his home district of Nagaur, or a larger city such as Jaipur, which is located over 100 kilometres from his home village. [7] The applicant could also relocate outside his home state. To this end the Tribunal also notes that his children are not infants, his daughter turns [age] this year and his son [age], and do not reasonably require the constant supervision of the applicant or his wife.
[6] Distance from Nagaland to Rajasthan - Google Search
[7] [Source redacted]
The Tribunal has considered all of the applicant’s claims individually and cumulatively. Despite considerable concerns about the reliability of many of his claims, the Tribunal has accepted that there is a real chance that he may be persecuted in the village of [Village 1], Didwana Tehsil, Nagaur District Rajasthan and in the immediate surrounding areas, the Tribunal finds that the persecution does not relate to all areas India.
The Tribunal further does not accept that there is a real chance that the applicant will suffer persecution in India or any other reason.
The Tribunal finds that the applicant is not a refugee as described in s 5H and he does not satisfy the criteria in s 36(2)(a).
Is the applicant a person entitled to complementary protection?
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 accepts that the applicant is in dispute with his cousin over land they formerly had an interest in, and also that the applicant’s dispute with [Mr A] may have turned violent and that the applicant may have suffered harm in the past.
As to the consequences of the applicant being returned to India, the Tribunal accepts that there is a real risk, that the applicant’s return would be perceived by his cousin to be an intention to claim his compensation for the land. The Tribunal assesses this as low, given the time that has passed, the sale of the land, and that the Tribunal finds that he was not harmed in the past after he had left the land. If however conflict did occur arguably it could lead to the applicant suffering degrading treatment or punishment or cruel or inhuman treatment or punishment.
Nevertheless, pursuant to s 36(2B)(a) of the Act, there is not taken to be a real risk of significant harm in a country if it would be reasonable for a person to relocate to another area where there would not be a real risk that the person would suffer significant harm.
The applicant has claimed that [Mr A] has vowed to finish him off. The Tribunal does not accept this claim, and as set out above has found that the applicant did not experience any threats or actual significant harm from [Mr A] after May 2012. It is also not accepted that [Mr A] was a most well connected and sought after criminal figure, or that he was connected to gangs or those with political influence. It is not accepted that [Mr A] was involved in alcohol smuggling or was well connected in different parts of India. The Tribunal does not accept that [Mr A] would pursue the applicant.
For similar reasons as set out in reasoning of the Tribunal above, regarding real chance of harm to the applicant in all areas of India under refugee grounds, the Tribunal finds that in the particular circumstances of the applicant his real risk of harm is limited and localised to an area within a less than twenty kilometre radius of his village of [Village 1], Didwana Tehsil, Nagaur District, Rajasthan.
As to the reasonableness of the applicant relocating, the Federal Court has confirmed that the issues which arise when considering reasonableness of relocation in the refugee context are the same which arise in the complementary protection context. [8] The Tribunal relies on the country information as set out above in that there would be no legal impediment for him to do so.
[8] AHK16 v MIBP [2018] FCAFC 106 at [53]; MZYXS v MIAC [2013] FCA 614 at [37], followed in MZZAD v MIMAC [2013] FCA 879 at [65]–[66]
The applicant’s immediate family are no longer in his village. He has no ongoing interest in land in his home village. He has skills in agriculture, he speaks Hindi, Marwari and his English skills have improved while in Australia. He has significant work experience in agriculture, cleaning and gardening and the capacity to work. He has demonstrated resilience living and working outside his home country in a foreign environment for over a decade. It is considered that the applicant possesses valuable and employable skills in India.
In the past the applicant has also demonstrated a willingness to relocate a considerable distance to Nagaland, over 2,500 kilometres[9] from his home state of Rajasthan, for several months for employment. His family is well supported by his in-laws until he establishes himself upon his return to India. Given the independence and resilience demonstrated by the applicant to date, it is considered practical that he could establish himself, and if necessary a home for his family outside his home village. As discussed with the applicant at hearing it is considered that he could relocate to districts south of his home district of Nagaur in Rajasthan, or a larger city such as Jaipur, which is located over 100 kilometres from his home village. [10] The applicant could also relocate outside his home state.
[9] Distance from Nagaland to Rajasthan - Google Search
[10] [Source redacted]
Consequently, the Tribunal also finds that it would be reasonable for the applicant to relocate to an area of India where he would not face a real risk of suffering significant harm. It follows that the Tribunal finds that as a necessary and foreseeable consequence of the applicant being removed from Australia to India there is a not a real risk that he will suffer significant harm.
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 criteria in s 36(2).
DECISION
The Tribunal:
i.affirms the decision not to grant the applicant a Temporary Protection visa in matter 1909589 made on 21 August 2017; and
ii.sets aside the decision in matter 2104139 to refuse the applicant a Safe Have Enterprise visa, application made on 10 October 2020 and substitute it with a decision that the visa application was not valid.
Penelope Hunter
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
…