1911244 (Refugee)

1911244 (Refugee) [2024] AATA 2734 (8 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1911244
COUNTRY OF REFERENCE:                   India
MEMBER:Mia Bailey
DATE:8 July 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 July 2024 at 4:19pm
CATCHWORDS
REFUGEE – Protection Visa – India – race – religion – Sikh – land dispute – fears harm from Mr B – no direct interaction between them for almost 20 years – lack of any incidents since 2005 – delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 36, 65,424, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 (delegate) on 10 April 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 1 May 2018. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.
The applicant was initially invited to appear before the Tribunal on 29 May 2024 to give evidence and present arguments. He did not appear before the Tribunal for his scheduled hearing. The Tribunal dismissed the application under s 426A(1A)(b) of the Act and the applicant applied for reinstatement within the prescribed period. Based on the applicant’s reasons in his reinstatement request, together with supporting medical evidence, the Tribunal decided to reinstate the application under s 426A(1C)(a) of the Act.
The applicant appeared before the Tribunal on 3 July 2024 to give evidence and present arguments. The applicant’s current partner, an Australian citizen, attended the hearing as a support person.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. Relevant provisions of the Act are extracted in the attachment to this decision.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (Department), 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in
s 36(2)(aa) of the Act.
The mere fact that a person claims to fear 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 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. Nor is the Tribunal required to accept uncritically any or all the allegations made by an applicant.[1]
For the following reasons, I have concluded that the decision under review should be affirmed.
Background and receiving country
The applicant, a [age]-year-old male, provided a copy of the biodata page of his Indian passport as part of his protection visa application. The delegate accepted that the applicant is a citizen of India and there is no information before me to the contrary. I find that the applicant is a citizen of India, and that India is his receiving country for the purposes of assessing his claims for protection.
He has consistently claimed his place of birth and residence as [Village 1] village, [District 1] district, Punjab state and his religion and ethnicity as Sikh. I have no concerns with those claims.
The applicant’s migration history is detailed in the delegate’s refusal decision. He first arrived in Australia on [date] November 2009 as a dependent on his wife’s Student (subclass 572) visa. He departed Australia on [date] October 2012 and returned on [date] November 2012. On 26 February 2014, he was granted a Temporary Skilled Work (subclass 457) visa as a dependent of his wife. On 19 February 2018, a further subclass 457 visa was refused by the Department.
Evidence before the delegate
According to his protection visa application, he completed secondary school in [Village 1] in 1992. Between January 2001 and November 2008, he was employed with a business in [District 1]. He married in November 2008. Regarding family members, details are provided of his parents and brother who currently reside in Australia.
Regarding his protection claims, he stated that he left India because his cousin, ‘Mr B’, posed a threat to him. Mr B lives in [District 1], in close proximity to the applicant’s house. They had many arguments regarding their ancestral agricultural property. Twice the argument ‘heated up too much’ and led to physical violence. Mr B tried hitting him with an axe once and threatened to kill him if he didn’t share his part of the property.
Mr B harmed him mentally, emotionally and physically. He was always scared that Mr B could harm him physically or verbally which disturbed his ‘mental peace.’ He did not go out in public because his cousin had defamed him in society. When he did go out, people looked at him in disgrace. His family tried talking to Mr B about his ‘wrong attitude and behaviour’ but he abused them also.
He tried to seek help from the police, but no action was taken and his cousin continued to threaten him. Mr B has ‘good connections’ with the police in his local area and with political groups. He did not try moving to another part of India as he knew Mr B would ‘get hold of him’ if he knew where he was and felt it was safer to remain with his family.
If he returns to India, Mr B will ‘surely get hold’ of him and may kill him as he has tried to do previously. He may develop ‘major mental health issues’ because he is in constant fear of Mr B coming to his home and harming him.
The applicant attended an interview with the delegate on 25 February 2019 to discuss his claims. Relevant evidence provided at the protection visa interview is detailed in the delegate’s refusal decision, as summarised below:
i.He started having issues with his cousin in around 2003 in relation to a dispute over a parcel of land inherited by both their families. His family owned the front part of the land and Mr B’s family owned the back part of the land. Between 1997 and 2003 his family leased their part of the land to Mr B.
ii.In 2003, after the matter was discussed at a meeting with the village elders, Mr B returned the land to the applicant’s family but he became very angry with the applicant. When asked why Mr B’s anger was directed only at the applicant, he responded that the other male relatives in his family had either died or moved overseas; it was just him and his father left in India.
iii.In late 2003 or early 2004, he had a big argument with Mr B, who threatened him with an axe. He lodged a police complaint after this incident. Although the police took no action, Mr B stopped harassing him for a while. Mr B knew that if he did anything openly, the village would support the applicant.
iv.In 2005, while riding home one night on his scooter, Mr B stopped him on the road with 3 other people. They hit him with sticks and verbally abused him.
v.He confirmed to the delegate that these were the only incidents that occurred prior to his departure for Australia in 2009. However, he believes Mr B was always looking to harm him because he was told by mutual friends that Mr B made threatening comments about the applicant when he was drunk.
vi.When asked about any interactions with Mr B between the 2005 incident and his departure from India in November 2009, he responded that there was no direct interaction. He managed to avoid Mr B by mostly staying in his mother’s village, which is about 40 kms from [Village 1] village. When he returned to India in 2012 for a wedding on his mother’s side of the family, he stayed in his mother’s village and did not see Mr B.
vii.Mr B continues to live on his part of the ancestral land. The applicant’s family’s has leased their part of the land to a person from the village for farming.
viii.He confirmed that he has received no contact from Mr B while in Australia, stating that Mr B does not have his contact details in Australia.
The delegate accepted that:
i.The applicant’s family jointly own a parcel of land with Mr B’s family.
ii.His family leased their part of the land to Mr B between 1997 and 2003.
iii.Following the end of the lease there were 2 incidents between Mr B and the applicant: in 2003 and 2005 as claimed.
iv.There has been no interaction between Mr B and the applicant since 2005, including when the applicant returned to India in 2012 for a family wedding.
v.Mr B may harbour some personal resentment toward the applicant.
Given the lack of any interaction or harm since 2005, the delegate was not satisfied that there was a real chance of serious harm or a real risk of significant harm from Mr B if the applicant were to return to India.
Evidence before the Tribunal
Pre-hearing evidence
The applicant did not provide a copy of the delegate’s refusal decision to the Tribunal. On 19 June 2024, the Tribunal wrote to the applicant under s 424A of the Act, raising information that may form the reason, or part of the reason, for affirming the decision under review. The applicant was provided with a copy of the delegate’s refusal decision and a summary of the delegate’s findings. The applicant was advised that this information is relevant to the review as it may indicate that he does not face a real chance of serious harm or a real risk of significant harm if he were to return to India. He was invited to give comments or respond to this information in writing by 3 July 2024.
On 2 July 2024, the applicant submitted to the Tribunal a letter dated 1 July 2024 which reiterates the protection claims raised in his protection visa application and summarises the delegate’s findings of fact. He submits that, based on those findings, there is a real threat to his life if he were to return to India. He further states:
i.During his travel to India for 21 days between late October and November 2012, he shortened his trip because he was intimidated and threatened by Mr B regarding the land dispute. Mr B told the applicant’s family that he would kill the applicant so that they would not return to their village. Due to these threats, he has not returned to India.
ii.His entire immediate family lives in Australia. There is no one in India from whom he can seek help in obtaining supporting documents. The administrative system in India is corrupt and Mr B has significant political influence. As such, he cannot provide any documents in support of his protection claims.
iii.If the Tribunal does not accept the merits of his protection claims, he requests that his case be referred to the Minister for a Schedule 3 waiver to allow him to lodge a partner visa application (subclass 820 / 801) onshore. He submits that compelling and compassionate grounds exist because the interests of his Australian citizen partner will be significantly affected if he has to depart Australia. His partner has several chronic health conditions which require ongoing medical care and support. His presence plays an important role in helping her on a daily basis. He also has a minor nephew who has [a medical condition]. He helps to take care of his nephew and they have developed a strong bond.
In support of the request for referral to the Ministerial, the applicant submitted the following documents:
i.Biodata page of his partner’s Australian passport and her birth certificate.
ii.Letter dated 1 July 2024 from the applicant’s brother attesting to his son having [a medical condition] and to the support provided to his son by the applicant.
iii.Biodata page of his nephew’s Australian passport and his birth certificate.
Oral evidence at hearing
Regarding the preparation of his protection visa application, the applicant stated that he received some help from a friend to complete the forms, but he read and agreed with the content.
Regarding his family members, he stated that his parents moved from India to Australia in 2017. His father passed away in 2022. His mother, who has permanent residency in Australia, lives with his older brother. His brother has resided in Australia since 1999 and is an Australian citizen.
His ex-wife departed Australia in 2017, with their daughter who is currently [age] years old. They are currently residing in [Country 1]. He and his ex-wife divorced in around 2019 or 2020. He confirmed that he arrived in Australia as a dependent on his ex-wife’s Student visa and she was subsequently granted a subclass 457 visa, on which he was a dependent.
The applicant confirmed that he resided in [Village 1] village and has not lived in any other part of India. Asked about his mother’s village, he stated the village name as [Village 2], which is located near [location]. Asked what he did after finishing [a grade] of high school, he stated that he attempted to undertake further high school studies but had difficulty in passing the exams because the lessons were taught in English. He subsequently completed a [Diploma]. He confirmed that he was employed as a [Occupation 1] with a business in [District 1] which manufactured [products].
The applicant confirmed that he continues to fear harm from Mr B because of the dispute over the jointly owned land in [Village 1] village. Mr B continues to live on his share of the land and his family are still leasing their share to a third party. He confirmed that his parents resided in [Village 1] village until they moved to Australia in 2017. Asked whether his father experienced any problems with Mr B while in India, he stated that Mr B used abusive language when speaking to his father but there were no other issues. When asked why Mr B only targeted the applicant in regard to the dispute over the family land, he stated that the arguments were only between him and Mr B.
Asked about the claim in his letter to the Tribunal that Mr B had made threats toward him when he returned to India in 2012, he stated that Mr B heard that the applicant was staying in [Village 2] village. Some of the applicant’s relatives told him that Mr B had made threats to kill him. This caused him to cut his trip short and return to Australia. He recalled that his parents and brother, who had also travelled from Australia for the wedding, stayed in India for a further few weeks.
I discussed with the applicant that he did not raise this information with the Department, noting that the refusal decision indicates that he was specifically asked about his trip to India in 2012 and any contact with Mr B since 2005. I explained that under the Act, I would need to consider whether he has a reasonable explanation for not raising this claim with the Department. If I were to be satisfied that he does not have a reasonable explanation, I would be required to draw an unfavourable credibility inference regarding the claim. He responded that he is not sure why he didn’t raise it. The threats occurred about 6 years prior to his protection visa interview so he may have forgotten to mention it.
I discussed with the applicant that in his protection visa application, he claimed that he did not go out in public because his cousin had defamed him, yet during this period he got married and was working. He responded that he was scared of his cousin and only went out if he had friends with him.
I discussed with the applicant that, aside from the 2 incidents in 2003 and 2005, he did not experience any harm from Mr B and had no contact with Mr B between the 2005 incident and his departure for Australia in November 2009. He responded that to avoid Mr B he sometimes stayed in his mother’s village ([Village 2]) and with relatives in other villages. He moved between [Village 1] village, [Village 2] village and several other villages. I raised with the applicant that in his evidence to the delegate, he had not mentioned staying in villages other than [Village 1] and [Village 2]. Asked whether Mr B knew the location of his mother’s village, he stated yes.
I discussed with the applicant that he did not apply for protection for almost 10 years after his first arrival in Australia in November 2009, yet claims to have feared harm from Mr B at the time of his arrival. Asked why he did not apply for protection earlier, he responded that he and his ex-wife were initially pursuing student visa and work visa pathways, with his ex-wife as the principal applicant. Once his ex-wife left Australia, he decided to pursue a protection visa.
I discussed with the applicant that, while I have not made my mind up, I may not accept there to be a real chance or real risk of harm from Mr B, given that he has taken no action against the applicant since 2005 and there has been no direct interaction between them for almost 20 years. He responded that he believes that he would be harmed by Mr B if he returns to his local area but there is no way for him to obtain documents in support of that claim. Asked whether there is any other reason he could not return to India, he stated no.
I acknowledged the request for the Tribunal to refer his case to the Minister for a Schedule 3 waiver to allow him to lodge a partner visa onshore. I explained to the applicant that this is a separate matter to the protection visa decision that is under review by the Tribunal. I suggested that he may wish to contact the Department or obtain legal advice in relation to the partner visa process. The applicant indicated that he understood.
Findings and assessment
In determining whether an applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I have had regard to the Tribunal’s Guidelines on the Assessment of Credibility[2] and accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[3] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[4]
[2] Administrative Appeals Tribunal, Migration & Refugee Division, Guidelines on the Assessment of Credibility, July 2015
[3] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
[4] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.

As did the delegate, I accept that the applicant’s family had a disagreement with his cousin, Mr B, regarding a parcel of jointly owned ancestral land in [Village 1] village. I accept that during an argument with Mr B in around 2003 or 2004, he threatened the applicant with an axe. I accept that in 2005 the applicant was verbally abused and hit with sticks by Mr B and 3 of his friends. According to the applicant’s evidence there were no further interactions between the applicant and Mr B between 2005 and November 2009 when the applicant left India and he has received no contact from Mr B while residing in Australia.
For the reasons discussed below, I have significant concerns with the credibility of the applicant’s claims that Mr B was intending to harm him following the incident in 2005.
I accept that the applicant resided at times during the period between 2005 and November 2009 in [Village 2] village. However, I do not accept that he did so to avoid harm from Mr B. Before the Tribunal, the applicant agreed that Mr B was aware of the location of his mother’s village. According to Google maps, the distance between the 2 villages is approximately 27 kms or a 35-minute drive.[5] If Mr B genuinely wished to harm the applicant, I find that he would have been able to locate him in [Village 2] village. The applicant also confirmed to the Tribunal that he did live in [Village 1] village during this period and I consider that if Mr B wished to harm the applicant, he would have had the opportunity to do so while he was in [Village 1].
[5] [Deleted].
The applicant stated to the Tribunal that during this period he also moved around to stay in other villages with his relatives. This differs from his evidence to the delegate. As reflected in the delegate’s refusal decision, he referred only to staying for part of this period in his mother’s village. I find that the applicant has embellished this aspect of his claims. While I accept that he may have visited his relatives in other villages in the Punjab during this period, I do not accept that he was doing so to avoid harm from Mr B.
I do not accept the applicant’s claim that he refrained from going out in public because Mr B had defamed him. As raised with the applicant, his evidence indicates that during the period 2005 to 2009 he married his wife and was working as a [Occupation 1] at a business in [District 1]. I also find his evidence to the delegate, as reflected in the refusal decision, that Mr B knew that if he did anything in public the village would have supported him (the applicant) to be inconsistent with his claim that people in his community were looking at him ‘with disgrace’.
Despite the applicant’s father residing in [Village 1] village until 2017, he did not experience any harm from Mr B. The applicant confirmed that other than Mr B speaking to his father with ‘abusive language’, his father was not threatened or harmed. I have concerns with the applicant’s explanation for why only he was targeted by Mr B in circumstances where the land under dispute also belonged to the applicant’s father. I find the lack of any harm toward his father to undermine the credibility of his claims that Mr B held a genuine intent to harm the applicant in connection with the land dispute.
The applicant raised a new claim to the Tribunal regarding threats of harm from Mr B during his trip to India in 2012. He claims that after becoming aware of the applicant’s presence in [Village 2] village, Mr B expressed to the applicant’s relatives that he would kill the applicant. I have considered the applicant’s explanation for not raising this claim with the Department, including at his protection visa interview where he was questioned about his trip to India and any contact with his cousin (as reflected in the delegate’s refusal decision). I acknowledge that the claimed threats occurred in 2012. However, given that they were considered of sufficient significance by the applicant at the time to cut his trip to India short and to not return to India, I do not find the lapse of time to adequately explain his failure to raise this information with the Department.
The applicant did not provide any further explanation to the Tribunal regarding his failure to raise this claim with the Department. I am satisfied that the applicant has not provided a reasonable explanation for the late disclosure and, in accordance with s 423A of the Act, I have drawn an unfavourable credibility inference regarding this claim. I also consider that in circumstances where the delegate had clearly raised concerns with the applicant about the lack of any incidents since 2005, he would have been prompted to refer to these threats if they were genuine.
I have also considered the substantial delay (almost 10 years) in applying for a protection visa and find this to contribute to the credibility concerns discussed above. I acknowledge that the applicant initially held a student visa and subsequently a temporary work visa as a dependent of his ex-wife. However, given that these were temporary visas, I have concerns as to why he would not apply for protection sooner if he genuinely feared serious harm from his cousin on arrival in Australia in 2009.
Considering the above, I do not accept that there were any ongoing threats of harm from Mr B following the incident in 2005 or that Mr B was intending to harm the applicant. I find, based on the applicant’s evidence, there have been no interactions between the applicant and Mr B since 2005.
Given the above, I find there is not a real chance that the applicant will face harm from Mr B if he returns to his home area of [District 1] district. The applicant has not claimed to fear harm for any other reason if he returns to India and I find that no protection claims arise on the accepted facts. I find that the applicant does not have a well-founded fear of persecution and is therefore not a refugee as defined in s 5H(1) of the Act.
I have therefore considered the complementary protection criterion in s 36(2)(aa) which requires substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that the applicant will suffer significant harm. ‘Significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
I note that the ‘real risk’ threshold for complementary protection has been held to be the same as the ‘real chance’ threshold under the refugee criterion.[6] For the same reasons outlined above, I find there to be no real risk of the applicant suffering significant harm from Mr B as a consequence of his removal to India.
[6] MIAC v SZQRB (2013) 210 FCR 505
As noted above, the applicant has not claimed to fear harm for any other reason if he returns to India and I find that no complementary protection claims arise on the accepted facts. I therefore find that the applicant does not engage protection obligations under the complementary protection criterion.
Conclusions
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa). There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mia Bailey
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 2734

8 July 2024

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Immigration

Statutory Interpretation

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Judicial Review

Natural Justice

Procedural Fairness

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