1910400 (Refugee)

1910400 (Refugee) [2021] AATA 5176 (3 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1910400
COUNTRY OF REFERENCE:                   India
MEMBER:Rachel Da Costa
DATE:3 December 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 December 2021 at 10:34am
CATCHWORDS
REFUGEE – protection visa – India – political opinion – supporter of Indian National Lok Dal (INLD) – claimed involvement in co-operative society for farmers – forced donations – opposition to the Bharatiya Janata Party – credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 9 April 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of India, applied for the visa on 12 September 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background
In his application for a protection visa, the applicant provided the following information. He was born in [Town 1], Haryana state, India in [year]. He speaks, reads and writes Hindi and Punjabi and reads and writes English. He completed High School in India. His religion is Hindu and his occupation is business. From 2013 to 2016 he was the director of [Company 1] which is a chicken farm in [Town 1]. He is married and his wife and daughter live in India. He visited [Country 1] and [Country 2] for one week in July 2016. He arrived in Australia [in] August 2016 on a visitor visa, travelling on his passport issued by the Republic of India [in] 2016.
In the Tribunal hearing, the applicant provided more information. In India he has his father, and two brothers as well as his wife and daughter. Since 2015, his father, wife and daughter have lived at his aunt’s house (his father’s sister) in the district of Mohali in Punjab state. Prior to that the family lived in [Town 1], Kurukshetra district in Haryana state. One of his brothers is in the Haryana [public service] and his other brother is a farmer and farms the family’s land in [Town 1]. The family has [number] acres of land and they farm sugar cane, grain and rice. They sell the produce. In 2012, the applicant started a poultry farm. From 1996 until he came to Australia the applicant farmed the family’s land. He travelled to [Country 3] in 1997 for two weeks as a tourist. He travelled to [Country 4] for 6 months in 2005 to visit relatives. He travelled to [Country 5] for one month in 2014 as a tourist. He visited [Country 1] and [Country 2] in 2016 on a tour.
Evidence before the Department
Protection visa application
The applicant makes the following claims in a written statement attached to his protection visa application form.
·     He was a businessman and farmer in India. His family were farmers and that is what he did after finishing school. He started his poultry business in 2013.
·     He liked the ideology of the Indian National Lok Dal (INLD).
·     He believed that through his political involvement he would be able to provide strong opposition to the corrupt BJP member activities.
·     The local farming community have suffered greatly since the BJP leaders decided to force poultry to pay monthly donation to the party which created tension among the farming communities.
·     When he was selected [office holder] of the co-operative society he raised the illegal party donation issue with the local BJP leader on behalf of farmers. They did not take it seriously. After a few months he tried to contact them but they refused to discuss it.
·     He was an INLD member and he was on the INLD advisory committee for the party candidate in his area for the legislative assembly election and recent municipal election.
·     He campaigned against the BJP candidate and asked other farmers to vote for the INLD.
·     After failing to stop their illegal activities they organised a rally from one side of the area to the other attended by most of the farmers to condemn the BJP’s activities. They carried placards and banners with slogans against local BJP leaders and their corruption.
·     The next day some of the local BJP members came to his house and threatened him. They ransacked his poultry business and house and threatened his family members.
·     He reported the matter to the police but they took 5 hours to come to his home. He explained to the police what happened but they were not interested and took some statements and left. They did not take any action against the BJP members.
·     He was terrified and could not sleep. He got very worried about his family members and decided to leave India immediately.
·     They threatened to kill his family members.
Request for further information
The applicant was invited to attend an interview with the Department on 31 January 2019 to discuss his claims for protection, however he did not attend.
On 1 February 2019, a delegate of the Minister wrote to the applicant seeking more information about the applicant’s protection visa application. The letter stated that the applicant’s statement of claims lacks substantiating details such as dates and locations in relation to his claims about his involvement in the INLD, contained limited claims about his involvement in a poultry co-operative society and did not contain details in relation to his claim that he approached the authorities and they are unable to protect him. The letter stated that this raised concerns that he will not face a real chance of serious harm or a real risk of significant harm on return to India and invited him to comment. It also asked him to provide his residential address in India and details of his family members in India.
In a letter dated 28 February 2019, the applicant responded to the delegate’s letter in writing. In that letter he did not elaborate on his claims or provide the information sought by the delegate. He reiterated that he left India because he fears persecution and that because of his affiliation with the INLD, opposition BJP party members threatened to kill him. He stated that they are looking for him and threatened his family members. The BJP government obstructs justice and prevents accountability for perpetrators of violence against those who oppose it. He offered to provide further documentary evidence if necessary.
The delegate’s decision
On 9 April 2019, a delegate of the Minister refused the applicant’s protection visa application. The substance of the delegate’s letter to the applicant dated 1 February 2019 and the applicant’s response was set out in the delegate’s decision. Based on the information provided by the applicant to the Department, the delegate was not satisfied in relation to the applicant’s claims for protection and found that the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
The review application
On 26 April 2019, the applicant lodged an application for review of the delegate’s decision with the Tribunal. The applicant included a copy of the Department’s decision with his application for review. On this basis, the Tribunal considers the applicant to be on notice of the delegate’s concerns and findings.
The hearing
The Tribunal exercised its discretion to hold the hearing by video using the Microsoft Teams platform (MS Teams) with the agreement of the applicant. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter, including the fact that the hearing did not require documents to be sighted by the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.
On 29 October 2021, the applicant appeared before the Tribunal via video to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Hindi and English languages. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
Nationality
The applicant claims to be a citizen of India and provided to the Department a copy of his Indian passport issued [in] 2016. The delegate was satisfied that the applicant was using his own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of India. The Tribunal finds India is his receiving country for the purpose of assessing his claims for protection.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant gave evidence that a friend helped him to fill in his protection visa application form and to write his statement of claims and that the applicant provided the information. He confirmed that the information in his statement of claims is true and correct.
During the hearing, the Tribunal discussed with the applicant his family, education, employment, where he lived in India, his travel history, the problems he experienced in India and why he fears returning to India. The Tribunal has concerns about the truthfulness of the applicant’s evidence in relation to claimed events in India and did not find him to be a credible witness.
The Tribunal’s concerns are discussed below.
First, the applicant’s evidence about his involvement in politics in India raised doubts for the Tribunal about his credibility.
In his written statement, the applicant claims that he was a member and supporter of the Indian National Lok Dal (INLD). He believed that through his political involvement he would be able to provide strong opposition to the corrupt BJP member activities. A particular issue he highlighted was his claim that local poultry farmers had been forced to pay a monthly donation to the BJP. He claims he was selected [office holder] of the co-operative society and that he raised this illegal party donation issue with the local BJP leader on behalf of farmers. He claims that the BJP did not take the issue seriously and after a few months he tried to contact them again but they refused to discuss it. He also claims he was on the INLD advisory committee for the party candidate in his area for the legislative assembly election and recent municipal election and that he campaigned against the BJP candidate and asked other farmers to vote for the INLD. He claims that after failing to stop the BJP’s illegal activities he was involved in organising a rally from one side of the area to the other attended by most of the farmers to condemn the BJP’s activities.
In the Tribunal hearing, the applicant gave evidence that he was just a supporter of INLD and not a member. He was attracted to the party because they supported looking after farmers’ interests with things like free electricity and subsidised seeds and fertiliser. He thought that by being involved and doing good work with the INLD they might help him to find a government job because if you know someone in the government it helps you to get a job. He showed his support by helping to organise people from villages to attend rallies, including transporting them there, and during the election he helped gather people to go and vote. The Tribunal asked him whether he had anything else to tell it about his political involvement in India and he said he had nothing more to say.
The Tribunal put to the applicant its concern that there were claims in his written statement about what seemed to be quite significant involvement in politics that he had not mentioned in the Tribunal hearing and explained that the fact that he hadn’t mentioned them raised a concern about the credibility of his claims and evidence. The Tribunal gave the example of his claim that he was selected [office holder] of the co-operative society and that he raised the illegal party donation issue with the local BJP leader on behalf of farmers. The applicant responded that he thought he had told the Tribunal everything. He said he answered the Tribunal’s questions and the Tribunal could ask him if it wanted to. The Tribunal does not accept the applicant’s explanation for why he did not mention his other claimed significant involvement in politics. The Tribunal gave the applicant the opportunity to tell it about his involvement in politics in India and the evidence he gave is set out in paragraph 26 above. The Tribunal is prepared to accept that evidence.
The Tribunal’s understanding of the applicant’s written claims is that he claims that it was due to his particular roles of significance with the INLD and the co-operative, confronting members of the BJP about the issue of illegal donations and actively campaigning against the BJP which led to him being targeted by people connected to the BJP. The fact that the applicant did not mention in the Tribunal hearing what the Tribunal considers to be his central claims in his written statement about his political activities and why he was targeted raises concerns for the Tribunal about the genuineness of his claims and his credibility more generally.
Secondly, and related to the discussion above, in his written statement the applicant claims that BJP leaders were forcing poultry farmers to pay monthly donations to the party and this created tension among the farming communities.
The applicant did not raise this claim during the Tribunal hearing. The Tribunal put to the applicant that the fact he did not mention this claim in the hearing raised a concern for the Tribunal about whether it was true. The applicant responded that he had mentioned everything and the Tribunal could ask him questions. The Tribunal does not accept this as an adequate explanation for why he did not mention it. Given the significance of this claim in relation to the applicant’s claimed political activities as [office holder] of the co-operative society and campaigning against the BJP, the Tribunal considers that the applicant would not have omitted to mention it if it were true. As discussed in paragraphs 25 to 28 above, the Tribunal has concerns about the credibility of much of the applicant’s evidence relating to his political involvement. Combined with those concerns, the applicant’s failure to mention this claim during the Tribunal hearing raises concerns for the Tribunal about his credibility and the genuineness of his claims.
Thirdly, discrepancies in the applicant’s evidence about being threatened at his house raised concerns for the Tribunal about his credibility.
In his written statement, the applicant claims that after failing to stop the BJP’s illegal activities they organised a rally from one side of the area to the other attended by most of the farmers to condemn the BJP’s activities. They carried placards and banners with slogans against local BJP leaders and their corruption. He claims that the next day, some of the local BJP members came to his house and threatened him. They ransacked his poultry business and house and threatened his family members. He claims that he reported the matter to the police but they took five hours to come to his home. He explained to the police what happened but they were not interested and took some statements and left. They did not take any action against the BJP members. He was terrified and could not sleep. He got very worried about his family members and decided to leave India immediately. They threatened to kill his family members.
In the hearing, the Tribunal asked what had happened to make him decide to leave India. The applicant gave evidence that in November 2015 some rowdy people from the area came to his house. There were two cars with five people in each car and they fired in the air, they started abusing and threatening and told him and his family to come out of the house but they did not. These people used abusive language and then they went away. The Tribunal asked the applicant why these people wanted to harm him and he said it was because he supported the INLD and they wanted him to support their party. He said after this incident, he and his family went to his aunt’s house in Punjab and came back to their place in December 2015. The applicant said these people came to his house again sometime between 20 and 25 January 2016 and the same thing happened. The Tribunal asked the applicant whether anything else happened and he responded that then he and his family moved to his aunt’s house permanently. The Tribunal asked the applicant if he spoke to the police. He said he did in both November and December 2015 but the police said they could not take any action and told him to save himself and he decided to leave the country. Much later in the hearing, the applicant claimed that he was stabbed during the November 2015 incident but it was not reported.

The Tribunal put to the applicant its concern about discrepancies between the evidence in his written statement and his evidence to the Tribunal and explained that this raised doubts about whether the evidence he had given was true. The applicant responded that he didn’t think he had to tell the Tribunal about the written things and whatever the Tribunal asked him he told the full story. The Tribunal does not accept the applicant’s response as an adequate explanation for the discrepancies in his evidence. For example, in his written statement the applicant claims that following his involvement in organising a rally against the BJP, the next day some local BJP members came to his house and threatened him, ransacked his poultry business and house and threatened his family members. In the Tribunal hearing, the applicant did not mention his involvement in organising a rally the previous day as a reason for why the people came and threatened him and his family. He said the reason was because they wanted him to shift his support to their political party.
In the Tribunal hearing the applicant did not repeat his written claim that these people ransacked his poultry business and his house when they came. When the Tribunal raised this with the applicant, he responded that he had told the Tribunal he had to close down the poultry farm due to these people. Earlier in the hearing, the applicant had given evidence that he closed down his poultry farm when the problems came because there was no one to look after it. The Tribunal does not consider that the applicant saying he had to close down his poultry farm because there was no one to look after it is the same as claiming that people came and ransacked his poultry business. The Tribunal considers the claim of ransacking the applicant’s house and poultry farm to be of sufficient seriousness that if it were true, the applicant would not have omitted to mention it.
Further, in the Tribunal hearing the applicant claims that these people came to his house twice and abused and threatened him and his family. In his written statement, he only claims they came once. As mentioned above, the applicant also claimed in the Tribunal hearing that he was stabbed during the November 2015 incident. The Tribunal put to him its concern that he had not mentioned this claim earlier either in his written statement or to the Tribunal and said that the fact he was only mentioning it now raised concerns for the Tribunal about its truthfulness. The applicant responded ‘ok’.
In the Tribunal’s view, the applicant’s responses to the Tribunal’s concerns do not provide an adequate explanation for these discrepancies in his evidence about why he was threatened, how many times and what happened during the claimed incidents both to him and his property. This raises significant concerns for the Tribunal about his credibility and the genuineness of his claims.
Fourthly, in the Tribunal hearing the applicant raised new claims about moving to Punjab and travelling around India because he was being tracked, which raises a concern for the Tribunal about his credibility.
In his written statement, the applicant claims that after the ransacking and threatening incident and reporting the matter to the police, he got very worried and decided to leave India immediately. He does not mention anything about moving to Punjab or travelling around India because he was being tracked.
In the Tribunal hearing, the applicant claimed that after the first threatening incident in 2015 he and his father, wife and daughter moved to his aunt’s house in Punjab. They came back to their house in December 2015 and were threatened again in January 2016. Then they moved to his aunt’s house permanently. The Tribunal asked the applicant why they went to his aunt’s house and he said because it is different police in Punjab and if these people try to do anything wrong in that area the Punjab police will catch them. The Tribunal asked the applicant if he felt safe in Punjab and he said yes. The Tribunal asked the applicant why he could not move back to India and live in Punjab. The applicant responded that ‘they are after me’. The Tribunal reminded the applicant that he had just said he felt safe in Punjab. The applicant responded that he cannot stay inside all the time and men have to go out and he would have to help look after the farm.
The Tribunal asked the applicant was he was doing between the time he went to stay at his aunt’s place in January 2016 and when he departed India for Australia in August 2016. The applicant claimed that he was going to different places in India for a while and then he went to [Country 1]. He did this because he feared the people were coming after him and so he travelled to avoid the situation. The Tribunal asked him why, given he said he moved to his aunt’s place to be safe, he had to travel around. He responded that his other family members were safe but he was not because they were tracking him. He claimed they found him once in Patiala in Punjab and they rang other people and started abusing him. He claimed they were chasing him all the time and in July 2016 he decided to leave India.
The Tribunal put to the applicant that the fact he did not mention these claims in his written statement raised a concern for the Tribunal about whether they were true. The applicant responded that he thought whatever he had written was given to the Tribunal and whatever the Tribunal asked he would answer. The Tribunal does not accept this as an adequate explanation for why the applicant did not include these claims in his written statement. Given the seriousness of these claims, the fact that the applicant did not include them in his written statement and only mentioned them for the first time in the Tribunal hearing raises significant doubts for the Tribunal about their truthfulness. The Tribunal’s concerns are amplified by its concerns about the applicant’s credibility more broadly, as discussed above.
The Tribunal asked the applicant whether his family had experienced any problems since he left India. He responded that his father had experienced some abusive language once or twice about the applicant from the people who were coming after the applicant, but that was all and nobody in his family had been threatened. He said that these people were only after him.
In light of the discrepancies in some of the applicant’s claims between his protection visa application and the hearing before the Tribunal, and the Tribunal’s concerns about the truthfulness of his evidence more broadly, having considered all of the applicant’s claims and evidence, the Tribunal finds as follows.
The Tribunal accepts that the applicant was born in [Town 1], Kurukshetra district in Haryana state in India and finds that that is where he lived until he came to Australia. The Tribunal accepts that in India he was a farmer, which included a poultry farm from around 2012 until around the time he left India. The Tribunal accepts that the applicant’s father, brothers, wife and daughter live in India. The Tribunal accepts that the applicant was a supporter of the INLD and that he hoped his membership would assist him to get a government job. The Tribunal accepts that he showed his support for the INLD by helping to arrange for people from villages to attend rallies, including by transporting them, and helping to gather people to vote in elections. The Tribunal finds that the applicant’s family have not been threatened since he left India.
The Tribunal does not accept that the applicant was a member of the INLD. The Tribunal does not accept that he involved himself with the INLD so that he could provide strong opposition to the corrupt BJP member activities. The Tribunal does not accept that he was selected to be [office holder] of the co-operative society. The Tribunal does not accept that BJP leaders were forcing poultry farmers to pay monthly donations to the party and this created tension among the farming communities. The Tribunal does not accept that the applicant raised the issue of illegal party donations with local BJP leaders on behalf of farmers in his capacity as [office holder] of the co-operative society or otherwise. The Tribunal does not accept that he was on the INLD advisory committee for the party candidate in his area for legislative assembly and municipal elections. The Tribunal does not accept that he campaigned against the BJP candidate and asked other farmers to vote for the INLD. The Tribunal does not accept that he was involved in organising a rally in his area to condemn the BJP’s activities and that the day after this rally, or at any other time, local BJP members, or any other people, came to his house and threatened him and his family. The Tribunal does not accept that they, or anyone else, ransacked his poultry business and house. The Tribunal does not accept that he reported the matter to the police, that the police were not interested and that they took statements and left. The Tribunal does not accept that he was very worried for himself or his family members about what had happened and that he left India for this reason. The Tribunal does not accept that anyone threatened to kill his family members. The Tribunal does not accept that the applicant and his family relocated to his aunt’s house in Punjab because of threats or for any other reason. The Tribunal does not accept that the applicant was moving around India from January 2016 to August 2016 because he was being tracked by the people who he claims threatened him, or for any other reason. The Tribunal does not accept that the applicant’s father has experienced abusive language about the applicant since the applicant left India.
Does the applicant meet the refugee criterion?
In his written claims attached to his protection visa application, the applicant does not explain why he fears returning to India. In his letter to the Department dated 28 February 2019, the applicant claims that BJP people are looking for him. In the Tribunal hearing, the applicant claimed that he fears returning to India because some Ministers and their supporters in the BJP party might get the police to arrest him or have someone kill him because he was supporting the INLD in his area and they wanted him to join their party. While the Tribunal has accepted that the applicant was a supporter of INLD while he was in India, the Tribunal has found that the applicant was not harmed or threatened as a result of his support for the INLD or for any other reason. On this basis, the Tribunal does not accept the applicant’s claims and finds that the applicant does not face a real chance of serious harm arising from these circumstances.
However, given the Tribunal accepts that the applicant was a supporter of the INLD, the Tribunal has considered whether his past support would give rise to a real chance of serious harm if he returned to India in the reasonably foreseeable future. The Tribunal asked the applicant whether he had been involved in politics since he left India and he said he had not. The Tribunal asked the applicant whether he would get involved in politics if he returned to India and he said he would not. The Tribunal accepts this evidence. Country information discussed with the applicant during the hearing indicates that the INLD is not really a relevant political force in Haryana anymore and in the 2019 state elections it won only one seat. Country information does not indicate that supporters of the INLD face threats or discrimination from political opponents, including the BJP. The applicant said the INLD is getting more important and it is on the rise. This is not consistent with country information and the Tribunal does not accept it. The Tribunal finds that as a past supporter of the INLD the applicant does not face a real chance of serious harm arising from these circumstances if he returned to India in the reasonably foreseeable future.
Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to India now or in the foreseeable future that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[1] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
[1] MIAC v SZQRB [2013] FCAFC 33
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rachel Da Costa
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.
…

[2021] AATA 5176

3 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction