1920579 (Refugee)

1920579 (Refugee) [2024] AATA 3958 (26 August 2024)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1920579
COUNTRY OF REFERENCE:                   India
MEMBER:David James
DATE OF DECISION:  26 August 2024
DATE CORRIGENDUM
SIGNED:18 September 2024
PLACE OF DECISION:  Brisbane
AMENDMENT:  The following corrections are made to the decision:
1.On Paragraph 83, replace the last word ‘India’ with ‘Australia’.

David James
Senior Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1920579
COUNTRY OF REFERENCE:                   India
MEMBER:David James
DATE:26 August 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 September 2024 at 2:23pm

CATCHWORDS
REFUGEE – protection visa – India – dowry claim by Hindu wife and her family after relationship ceased – her family’s association with ruling political party – applicant disowned by parents for their protection – credibility – inconsistent claims and evidence, and documentation not provided – adverse information – wife and her parents have typical Sikh surnames – money transfers to mother during period applicant claimed not to be in contact – country information – inter-religious/inter-caste marriages and dowry claims – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (2), 5LA, 36(2)(a), (aa), (2A), 65, 411(1)(c), 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v MHA [2019] FCA 836
Chan Yee Kin v MIEA (1989) 169 CLR 379
Fox v Percy (2003) 214 CLR 118
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
SZLVZ v MIAC [2008] FCA 1816
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 July 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of India, applied for the visa on 18 October 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to India, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal) on 26 July 2019. The applicant provided a copy of the delegate’s decision with the application for review.
As noted above, the applicant provided a copy of the delegate’s decision with his application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant’s protection visa having considered the material before the delegate. The Tribunal is satisfied that decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicant appeared before the Tribunal on 21 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was not represented in relation to the review.
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
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 (the Department), 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
Issues
The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to India they would be persecuted for one of those reasons and, if not, whether there are 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 as defined in s 36(2A) of the Act.
Documentary evidence before the Tribunal
The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents, considered by the Tribunal:
·The applicant’s protection visa application submitted on 18 October 2017 and the annexed copy of the applicant’s bio-data page of his Indian passport;
·A copy of the Divorce order of the Federal Circuit Court of Australia, Brisbane, dated [June] 2017 in relation to the applicant and his former wife, [Ms Kaur], this order was provided to the Department by the applicant at his interview with the Department on 20 February 2019;
·Media article from the Outlook Web Bureau, dated 5 March 2018 titled, ‘Christians, Sikhs being persecuted in India believe British MP’s to take it up with Modi during Commonwealth meet’, provided to the Department at the applicant’s interview of 20 February 2019 and further lodged with the Department on 21 May 2019;
·Department’s s 57 of the Act ‘Invitation to comment on information for a protection visa’ letter, dated 24 April 2019, in which the Department, in part, requested the applicant to comment, stating that:
In accordance with section 57 of the Migration Act 1958, I am writing to advise you that information has been received which a delegate of the Minister considers would be the reason, or part of the reason, for refusing to grant a visa.
There is information before that Department that you have made money transfers to your mother; [Ms A] on several occasions between the dates of 8 February 2018 and 14 December 2018. This raises concerns about your claim to have not been in contact with your parents for 18 months prior to your Protection visa interview on 20 February 2019.
You claimed that your parents had disowned you because of the dowry claim against you.
Based on credible country information regarding Indian and Sikh naming conventions, it is also highly likely that your ex-wife; [Ms Kaur], your ex-mother-in-law; [Mrs Kaur] and ex-father-in-law; [Mr Singh] identify as Sikh. This raises concerns about your claim that your ex-wife and her family are Hindu and that your interfaith marriage; you being a Sikh and she a Hindu was a cause of conflict and the subsequent false dowry claim brought
against you.
The above information could lead to an adverse credibility finding which may result in the refusal of your visa application.
You are invited to comment on the above information.
·Applicant’s response to the Department’s ‘Invitation to comment on information for a protection visa’ of 21 May 2019, in which he stated, in his email that:
My parents have disowned me to be safe themselves. They spent a lot of money when they sent me and my wife to Australia. In India after converting from Indian to Australian Dollars, It is a very big money. I contacted my mother and have tried my best to pay them the money they have spent on me and my wife.
I still love and respect my parents and although they have disowned me, I understand why they did it. They are getting old and if someone tries to get the land and whatever they have, they did what was right for them.
Regarding Indian and Sikh conventions, it is very normal for Hindus in Punjab to adopt Sikh names. Before BJP came to power, Punjab was a Sikh state and most hindus adopted sikh names, although they were Hindus. Earlier there was no major problem between Hindus and Sikhs. It was all good until BJP came to power. After these elections they have come to power again for the next 5 years and it is in their agenda to declare India as a Hindu country.
I have attached a few articles for you to look. The India you see and the India that it actually is are very different.
All I am requesting is allowing me to stay in Australia so they so, not lock me up. I do not ask for anything else. I am a hardworking man and need some time.
·Copy of media article from Hindustan Times, dated 25 July 2018, titled ‘Indian detainees at Sheridan cite political persecution by Modi govt’, provided to the Department at the applicant’s interview and further on 21 May 2019;
·Copy of media article from eSamskriti, dated July 2004, titled ‘Why was the first son made a Sikh’, provided to the Department on 21 May 2019;
·Copy of media article from SBS, dated 27 February 2019, titled ‘The Dowry Trap: The untold story of male victims’, provided to the Department on 21 May 2019, and in which it was reported, in part, that:
While the law was undoubtedly put in place to protect vulnerable woman from domestic violence and death, many, including even India’s Supreme Court are concerened that it is being misused by some women to intimidate or extort money from their husbands, or ex-husbands.
Former Additional Advocate General of Punjab and Haryana High Court, Rajinder Goyal, says false cases are clogging up India’s legal system…
Section 498A does not require women to provide evidence of abuse, and there’s a presumption of guilt until innocence can be proven. Those found guilty face up to three years in jail and the trail can take many years. The vast majority says Rajinder Goyal, end up being acquitted by the courts. I can say that after the case is put to trial under Section 498A, 80 per cent is the acquittal rate. That means, it is found that the case is not proved.
The latest figures released by India’s National crime Records Bureau (NCRB) show that while the number of cases registered under Section 498A is increasing each year, the conviction rate is falling.
·Copy of media article from UCA News.com, dated 23 May 2018, titled ‘Religious persecution the new normal in India’, provided to the Department on 21 May 2019;
·Copy of media article from Frontline the Hindu Dispatches, dated 23 January 2015, titled RSS and Sikhs’, provided to the Department on 21 May 2019;
·The applicant’s application for review of 26 July 2019 and the annexed Decision Record of 11 July 2019;
·The administrative and movement records of the Department relating to the applicant; and
·Applicant’s typewritten submission emailed to the Tribunal on 13 August 2024 and the annexed media articles titled, ‘False cases by women against husbands, in-laws need to be viewed seriously’, dated 13 July 2022 and published by the New Indian Express and SBS undated article titled ‘Family Violence, dowry and fake cases in Australia’s Indian community’, both of which were further provided to the Tribunal at the hearing. In the applicant’s emailed submission, he states (as relevant to his claims) that:
1.     I got married to [Ms Kaur] on [Date].
2.     I came to Australia in May 2015 along with my wife.
3.     Initially our life was good, but after some time, she started asking for a divorce. Her parents started pushing her. It all started when my wife’s mother came to visit us in Australia.
4.     In India, it is very common to lodge a dowry case against a husband within 7 years of marriage, and non bailable warrants are issued the husband and his family members.
5.     Due to the dowry case, my parents legally disowned me, so they are not harassed. They have disowned me only to save themselves.
6.     If I return, I will be arrested at the airport.
Claims for protection
The applicant, in his visa application stated that he came to Australia with his wife for her studies. He further stated that he is from a Sikh family and his now ex-wife is a Hindu. He made the following claims (as summarised) that:
·His wife started demanding money from him and dominating him and when their relationship broke down his wife’s parents started harassing him and blackmailing him by threatening to file a dowry case against him in India if he did not act as per their daughter’s wishes and his wife further tried to sell land registered in his name because he did not include her name on the property;
·His wife has sought a divorce threatening to teach him a lesson;
·Local Indian police started to harass his parents telling them that the applicant had a case filed under section 498 (dowry matter);
·Anti-dowry laws in India are non-compoundable and non-bail and if he returns to India he will be arrested immediately as he and his family will be considered guilty until proven otherwise;
·His parents have decided against giving him anything and have disowned him; and
·He cannot move to another part of India as dowry is a serious crime and he could be arrested anywhere in the country and he will not be given protection because he belongs to a Sikh family.
Department interview
The applicant attended an interview with the Department on 20 February 2019.
Delegates decision
The delegate’s decision of 11 July 2019 to refuse the protection visa was made on the information before the delegate. The delegate found that the applicant’s claimed fear of harm in India because of a dowry case having been brought against him was not credible given the inconsistencies in the applicant’s versions and the vagueness of same. As to the applicant’s religious claims the delegate while accepting that Sikhs form only 1.7% of the population found that they were the majority in the applicant’s home state of Punjab and as there was no evidence that the applicant had been politically active in supporting an independent Khalistan, he did not face a real chance of facing serious harm for reasons of his religion. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to India, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Invitation to attend a hearing
On 15 July 2024, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 21 August 2024 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application, but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
On 22 July 2024, the applicant emailed his ‘response to hearing invitation’ form to the Tribunal indicating that he would participate in his scheduled review hearing; that no other witnesses would be giving evidence; and, that he would be providing his submission soon.
In the applicant’s typewritten submission to the Tribunal of 13 August 2024 which has been outlined in part at paragraph 16, the applicant submitted that the ‘event details’ outlined in the decision record of 11 July 2019 were incorrect. The Tribunal having reviewed the decision record notes that the information recorded in the Part 3: Migration history and identity assessment table does contain incorrect information that does not relate to the applicant in so far as his recorded arrival date in Australia; and details of purported overseas travel. However, given the information in the body of the decision record as to the applicant’s claims; adverse information; and the assessment of the applicant’s claims does not contain any incorrect information and there was no reliance by the decision maker on any of that incorrect information recorded on page one of the decision record; the Tribunal finds that the incorrect information recorded on page one of the decision was not material to the decision and as such the decision of 11 July 2019 as to the applicant is a Part 7 Reviewable Decision in accordance with the provisions of s 411 of the Act.
Country information

The Tribunal has taken into consideration the DFAT Country Information Report, India, 29 September 2023, including information under the heading of ‘Religion’ at 3.9 to 3.12, where it is reported that:
According to 2011 census data (the most recent available), almost 80 per cent (more than 1 billion people) of the population of India is Hindu. Another 14.2 per cent of people are Muslims (just under 200 million), 2.3 per cent are Christians (around 27 million), 1.7 per cent are Sikhs (just under 21 million) and less than 1 per cent are Buddhists (just under 10 million). A further 1.3 per cent (around 18 million) follow other religions including Jain, Zoroastrian, Jewish and Baha’i faiths, and tribal religions. Muslims, Sikhs, Christians, Buddhists, Jain and Zoroastrians (Parsis) have been notified as minority communities under Section 2 (c) of the National Commission for Minorities Act, 1992.
The constitution prohibits religious discrimination and guarantees the right to freely practise religion and the right for religions to manage their own affairs. The constitution guarantees the right to propagate a religion except where that would affect the operation of some state laws. For information about conversion laws and policies in practice in some states.
Both religious pluralism and communal violence have a long history in India. The situation has evolved in recent years with new political movements and the adoption of technology that can be used to disseminate information, and the use of social media to incite violence.
Research by the Pew Research Center published in June 2021 found that 84 per cent of people say that to ‘be truly Indian’ it is important to respect all religions. The same research found that more than 85 per cent people in each of six major religious groups surveyed (Hindus, Muslims, Christians, Sikhs, Buddhists and Jains) felt that they were free to practise their own religion, and most of those agreed that other religious groups were similarly free to practise their religions. According to the survey, communal violence, while often high-profile events that are covered extensively in the media, are not day-to-day issues for most Indians.
Under the heading of ‘Sikhs’ at 3.60 to 3.63, it is reported that:
Sikhism is the dominant religion in Punjab. There are significant populations of Sikhs in nearby states such as Haryana, Delhi, Rajasthan, Uttar Pradesh and Uttarakhand and there are Sikhs all over the country. Sikhism was founded in Punjab in the late 15th century. Unlike Hinduism, it is monotheistic. Its religious values emphasise equality and service to the poor.
Sikhs commonly work in many industries, notably agriculture, transport and business. There are very senior Sikhs in politics and Sikhs are well represented in the armed forces. Sikh men in particular are readily identifiable because of their turbans and long, full beards. This visibility means that they are a common sight in the streets as well as in media and entertainment.
Some Sikhs claim that their beliefs are not properly recognised by the Indian Government as a religion; the constitution groups Sikhs, Buddhists and Jains with Hinduism, for example. This means that laws relating to Hindu marriage, for example, also apply to Sikhs. A small number of Sikhs, predominantly overseas are involved in the ‘Khalistan’ separatist movement, covered in the section on Punjab.
DFAT assesses Sikhs in India generally face a low level of official and societal discrimination and violence. This may be because most Sikhs live in Punjab, which is a majority Sikh state, and Sikhs outside of Punjab have strong communities based around their places of worship. However, DFAT is not aware of violence or discrimination commonly occurring against Sikhs in other parts of India.
Under the heading of ‘Punjab’ at 3.94 to 3.102, it is reported at 3.94 to 3.96 and 3.102, that:
Punjab has a history of violence, notably linked to the Khalistan separatist movement (below) and in particular the assassination of former Prime Minister Indira Gandhi. In more recent decades this kind of violence is not common and politics in Punjab is generally peaceful.
A small number of Sikhs support a separatist movement for the creation of an independent Sikh state called ‘Khalistan’. The separatist movement has now been mostly supressed within India, however low-level tensions remain and there are continued calls for compensation for the Sikhs killed in violence. Violence still occasionally flares up. For example, protesters in favour of and against Khalistan separatism clashed in April 2022 with two injuries reported, and associated with the arrest of a Khalistani separatist leader in April-May 2023.
Sources consistently told DFAT that ordinary residents of Punjab perceive the Khalistan movement as something that is discussed in the diaspora abroad more than in Punjab. It may be raised as a political issue around state elections, however even then it is not a widespread topic of conversation. Sources advised that the presence of an active, influential Khalistan movement in Punjab was not a feature of their day-to-day life.
DFAT assesses that, overall, participants in Punjabi politics face a low risk of official or societal discrimination or violence, however notes that violence among supporters and opponents of separatism is possible. This kind of violence is still unlikely for most residents of Punjab.
Under the heading of ‘Marriage (interfaith, inter-caste)’ at 3.136 to 3.142, it is reported at 3.136 that:
Interfaith and inter-caste marriages are legal and occur occasionally, however many Indian families still prefer marriages arranged within their own religion and caste. Most marriages in India are arranged marriages and the family of the prospective marriage partner will choose a spouse based on faith and caste considerations. A marriage outside this system is known as a ‘love marriage’. Those who choose to marry outside their religion or caste may experience shunning or violence from their families, but the outcome depends on the family and there is not a typical pattern of reactions. An inter-caste or interfaith marriage will not necessarily lead to violence, but it can.
Under the heading of ‘Police’ at 5.4 to 5.8, it is reported at 5.4 and 5.8, that:
The Constitution of India devolves responsibilities for police and public order to the states. According to sources, many Indians will choose not to contact the police, even if they are victims of crime. The 2019 Status of Policing in India Report found that two in five police officers surveyed said that people were hesitant to rely on them. The 2018 version of the same report found that only one in five of more than 15,000 people surveyed had recent contact with the police, and those that did were more likely to be male and wealthy. Those who contacted police may well have paid a bribe for the police to take action.
DFAT understands that if a person of interest is being sought by another state, the states would work together in securing the arrest and extradition of that person, however there is no formal state extradition requirement. DFAT understands state police do not have sophisticated online databases to track offenders; such work may be done manually, but details are not clear and, in practice, it would probably depend on the individual police officers and police forces involved. In spite of that, in general, DFAT understands that there is a good degree of cooperation between state police forces and interstate arrest and extradition may be possible.
And under the heading of ‘Judiciary’ at 5.9 to 5.14, it is reported at 5.9 and 5.11, that:
The judiciary in India is separate from the legislature and executive. The Indian judicial system, like Australia’s, is inherited from British Common Law, and senior courts in particular are known for considered judgements in a similar style to Australian courts. Judgements may be written in English.
According to Freedom House and other sources, the upper levels of the judiciary display more autonomy, however the lower levels can suffer from corruption and politicisation. Bribes may be taken at different stages of the process and might be paid to speed things up rather than change an outcome.
The Tribunal has also considered the media article from ‘The Collector’ of 5 May 2022, titled ‘Princesses and Lions: Why are all Sikhs named Singh and Kaur?’ as to the issue of Sikh naming conventions. The Tribunal notes that it is reported in part, in this article, that:
Sikhism is the youngest traditional Indian religion. There are some 30 million Sikh adherents worldwide. All male Sikhs carry the surname Singh, while all females are named Kaur. It is a radical expression of unity. Sikhs want to show they belong to a single family by having the same surnames!..
All of them abandoned their surnames and took Sikh names. Equality calls for men and women to be equal members of the Khalsa. However, their Sikh names differ. All men are called Singh (Lion) and all women Kaur (Princess). They form a single family, and they should defend the weak and promote justice. Such equality is indeed attested as women fought in battles, led religious services, and ruled over the Sikh community. Equality is also realized through the professed life of compassion, truth, contentment, humility, and love…
Many personal Sikh names are also gender-neutral. Kaur and Singh identifies the person as a female or a male. Adopting Sikh names was a tremendous step as traditionally Indian surnames show caste and sub-caste…
Just as all men use the Sikh name Singh, all Sikh women are named Kaur. Simply put, it means Prince (not Princess), but there are other translations as well. Some understand it to mean “Lioness,” stressing equality with male Lions/Singhs. In which case, some women might also take the name Singhni or Singhnee, meaning exactly Lioness. Interestingly, in the past, many men had both Sikh names: Kaur and Singh (Prince and Lion). Today, Kaur is almost exclusively given to women.[1]
[1] ‘Princesses and Lions: Why are all Sikhs named Singh and Kaur?’, Obucina V. PhD History, Ma Political Science and Theology, BA Philosophy, The Collector, 5 November 2022 –
Review hearing - 21 August 2024
Tribunal hearing was conducted at the Brisbane Registry with the applicant and interpreter appearing in person.
The Tribunal explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh. The applicant when questioned by the Tribunal as to his understanding of the relevant statutory framework and concepts as to the refugee and complementary protection criteria told the Tribunal that he had been told about the test by a friend.
Given the applicant’s evidence as to his understanding of the criteria and that he was not represented in the review, the Tribunal provided a brief outline of the refugee and complementary protection criteria to the applicant who then acknowledged that he understood the criteria as had been explained to him by the Tribunal.
The applicant under questioning told the Tribunal that he had come to Australia with his then wife in 2015 as she had been granted a visa to travel to and study in Australia for a period of three years. He said that after marrying his wife in India in [Year] they had come to Australia where she studied a Master of [Subject] at a University in Brisbane. He explained that he was not working while his wife was studying and that two years into her studies their relationship broke down culminating in his ex-wife calling the police to their [Suburb] address and he then being taken to the [Suburb] Police Station where he was told to find alternate accommodation.
The applicant told the Tribunal that he stayed with a friend after he and his ex-wife separated in 2016. He explained that after their separation he obtained employment as a [job task] at a [workplace] before later obtaining his current employment with [Employer] in 2017.
The applicant told the Tribunal that after his wife had separated from him, she later divorced him in May 2017. He told the Tribunal that his ex-wife wanted to separate and divorce because he had not separated himself from his father and had not taken some of his father’s property and assets for themselves.
When asked as to whether there were any other issues that contributed to his marriage breaking down the applicant told the Tribunal that, the only issue had been the arguments about his relationship with his father and his wife’s desire that he obtain some of his father’s property and assets in India.
The Tribunal then in accordance with the procedure outlined in s 424AA of Act, raised with the applicant that he had in his interview with the Department on 20 February 2019 stated that the reason his ex-wife had divorced him was that her family had put pressure on her because he was from a different religion (Sikh). The applicant after being offered time to respond, told the Tribunal that he had not raised that issue at the hearing because it had been a long time ago and it had slipped his memory and he had not been specifically asked about that matter by the Tribunal. He said that although their different religion, her being Hindu and he being Sikh was an issue, the real issue was his ex-wife’s desire for him to separate from his family and obtain some of his father’s assets.
When asked what fears he had as to any future return to India the applicant told the Tribunal that his in-laws had made a dowry complaint again him. He explained that he had been told by his parents about two weeks after he had separated from his ex-wife in 2016 that his wife’s family had a made a dowry complaint and that the police had attended his parent’s home in [Village] in Punjab asking about him and informing them that there had been a dowry complaint made against him. He said he was told by his parents that the allegations against him had also included claims that he had beaten his wife. He told the Tribunal that he had not ever asked for and/or received a dowry from his wife and/or her family and that he had not ever assaulted her. He further told the Tribunal that after having separated from his former wife in 2016 his then mother-in-law had come to Australia to visit his ex-wife and that he was told that she had then withdrawn the family’s dowry complaint in India.
However, the applicant said that after his wife divorced him in Australia in May 2017 his family had two weeks after his divorce again been visited by police in India who again made inquiries about him in relation to the dowry complaint.
When asked as to what contact he had with his family, the applicant told the Tribunal that he had occasional but not regular contact with his parents in India and that he had on one occasion sent some money to his mother.
The Tribunal then in accordance with the procedure outlined in s 424AA of Act, raised with the applicant that ‘AUSTRAC’ records indicated that he had sent money from Australia to his mother in India on numerous occasions between 8 February 2018 and 14 December 2018. The applicant after being offered time to respond, told the Tribunal that he may have sent money more than two times to his mother but that he was not sure as it had been a long time ago.
Under further questioning the applicant told the Tribunal that he had a good relationship with his parents who he was still in occasional contact with from Australia.
The Tribunal then in accordance with the procedure outlined in s 424AA of Act, raised with the applicant that he had in his interview with the Department on 20 February 2019, stated that he had not been in contact with his parents for 18 months prior to his interview with the Department and that his parents had disowned him because of the dowry claim against him. The applicant after being offered time to respond told the Tribunal that his parents had disowned him over the dowry case but that over time things had gotten better and he now had contact with his parents.
The applicant under questioning told the Tribunal that the Indian police had provided his parents with some paperwork as to the dowry case against him and under further questioning he told the Tribunal that he could and would obtain copies of that material after the hearing. He told the Tribunal and that he could provide copies of those documents to the Tribunal by the end of the next day, 22 August 2024.
The applicant further explained that the local Indian police had visited his parents on three occasions asking about him and the dowry case against him after he and his ex-wife had separated and later divorced in 2017. He further explained that the last time the Indian police had spoken with his parents about the dowry complaint was in 2019 or 2020.
Under questioning the applicant agreed that the dowry case was against him and his parents and that no action had actually been taken against his parents by the police in relation to the dowry case. The applicant further explained that the reason his parents had not been arrested in relation to the dowry case was because they had told the police that they had disowned their son over this matter notwithstanding that they had since continued to maintain contact with him in Australia.
The applicant when asked how his wife and her family had been able to maintain this dowry case against him, given; there was no evidence of any demands for a dowry having been made; no payment of a dowry; he and his wife had divorced in 2017; and there had been a significant lapse of time since the complaint and his divorce. In reply, the applicant told the Tribunal that he did not know how the complaint had been maintained and that the Tribunal would have to ask them (his ex-wife’s parents) about that.
The Tribunal then in accordance with the procedure outlined in s 424AA of Act, raised with the applicant that he had in his interview with the Department on 20 February 2019 stated that the dowry complaint was being maintained by his ex-wife’s family who were keeping vigilant and would know when he returned to India through his ex-wife’s father’s social contacts with a relative who is a local BJP leader. The applicant after being offered time to respond, told the Tribunal that his former father-in-law did have contacts with the BJP and that is why they can maintain the case against him and ensure he is jailed if he returns to India, however this matter had also skipped his mind at the hearing.
When questioned as to why his wife’s family having been Hindu and associated with the BJP would have allowed him to marry their daughter, given he was a Sikh. The applicant in reply, told the Tribunal that his father’s friend had arranged the marriage and had put pressure on the families to make this alliance. He further told the Tribunal that as to why his ex-wife’s family agreed to their marriage, he did not know given their different caste and religion and only they know why.
It was put to the applicant that if he did return to India and the dowry case was pursued, he would be able to have the matter heard before the Courts. The applicant agreed and told the Tribunal that if the Tribunal thought it he could safely return to India, then he would go back to India but he was still unsure about that, given the dowry case.
The Tribunal then in accordance with the procedure outlined in s 424AA of Act, raised with the applicant that he had in his interview with the Department on 20 February 2019 stated that there were no hearings before the Court in dowry matters and he would if he returned to India be arrested at the airport and put into jail and killed. The applicant after being offered time to respond, told the Tribunal that he did believe that he would be arrested at the airport and just put into jail but that if the Tribunal thought this matter would be heard by the courts then he could go back to India and defend himself and his family.

The Tribunal then asked the applicant why he thought that dowry cases were not heard before the courts. The applicant in reply said he was from India and a friend had told him about these matters. Under further questioning the applicant refused to identify who his friend was who had told him about how dowry matters were dealt with in India.
The Tribunal then drew the applicant’s attention to the SBS media article dated 27 February 2019, titled ‘The Dowry Trap’ which he had provided to the Department on 21 May 2019 and again to the Tribunal on 13 August 2024 and further at the hearing; and, the New Indian Express article of 13 July 2022, titled ’False cases by women against husbands, in-laws need to be viewed seriously’ dated 13 July 2022 and published by the New Indian Express which was also provided to the Tribunal by the applicant on 13 August 2024 and again at the hearing. The Tribunal noted that these articles which the applicant relied upon clearly identified that dowry matters were the subject of court proceedings and court determinations and did not as had been claimed by the applicant result in automatic imprisonment without charges and court appearances. In reply, the applicant again told the Tribunal that if the Tribunal thought he would be dealt with by a court in relation to the dowry complaint, then he could return to India. Under further questioning the applicant told the Tribunal that his concerns as to being immediately arrested and imprisoned upon any future return to India was based upon what he had been told was the process in India by his unidentified friend.
The Tribunal then discussed the country information as has been outlined above at paragraphs 23 and 24 with applicant and in in accordance with the procedure outlined in s 424AA of Act raised with the applicant that his claims that his ex-wife, [Ms Kaur] and his former father in-law, [Mr Singh] and former mother-in -law, [Mrs Kaur] have reportedly conventional Sikh family names and this was inconsistent with them being Hindu as claimed by the applicant. The applicant after being offered time to respond, told the Tribunal that anybody can use any name and there is no objection to that practice in Punjab. Under further questioning as to why his ex-wife’s family would use conventional Sikh names if they were in fact Hindu, the applicant told the Tribunal that his ex-wife’s family name was actually [Surname] which is a Hindu name.
The Tribunal then asked the applicant if he had any information and/or evidence as to his wife’s family name being [Surname] as now claimed. The applicant in reply told the Tribunal that he had no such information and/or evidence and further confirmed under questioning that his ex-wife’s family name had been recorded on their Indian Marriage Certificate and Australian Divorce Order as Kaur which was reportedly a conventional Sikh name.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to the protection visa application, the applicant claims to be a citizen of India and provided a copy of the bio-data page of his Indian passport to the Department. Based on this material, the Tribunal finds that the applicant is who he says he is, and a national of India. India is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[2] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[3] This is consistent with the established proposition that it is for the applicant to make his or her own case.[4]
[2] Section 5AAA of the Act.
[3] Ibid (with effect from 14 April 2015).
[4] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. 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. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[5] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[6]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[5] Fox v Percy (2003) 214 CLR 118
[6] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[7] A similar approach is taken in the Department’s Refugee Law Guidelines[8] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[9] which both provide useful guidance for this Tribunal.
[7] SZLVZ v MIAC [2008] FCA 1816 at [25].
[8] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[9] UNHCR, re-issued February 2019 at [203]–[204].
Dowry complaint
The applicant claims that after arriving in Australia with his wife in 2015 his wife started demanding money from him and dominating him resulting in their separation in 2016 and subsequent divorce in 2017 in Australia. He claims that his ex-wife’s parents filed a dowry case against him in India and he became aware of this action through his parents after they were approached by the local Indian police in [Village], in the Indian state of Punjab.
However, at the hearing the Tribunal found, as has been outlined above at paragraphs 32, 36, 38, 43, and 46, that the applicant’s evidence at the hearing was inconsistent with or lacking the details that he had earlier provided to the department in his interview on 20 February 2019.
In its consideration of the cumulative effect of these inconsistencies and his evidence at the hearing in which he claimed; that he will be arrested and imprisoned in India without the police investigating this complaint or the courts conducting any hearing; that his parents having been implicated in this complaint have not yet been arrested, charged or interviewed by the authorities; together with his evidence but about his ex-wife’s family names of Singh and Kaur; the Tribunal has formed the view that the applicant’s evidence in relation to this matter is not reliable and has been concocted by the applicant. Therefore, the Tribunal has rejected these claims in their entirety on the basis of a lack of credit.
In that regard the Tribunal also notes that the DFAT country information as has been outlined above at paragraph 23, under the heading of ‘Marriage (interfaith, inter-caste)’ is inconsistent with the applicant’s claims that he first married his ex-wife who he claims is Hindu notwithstanding her family name and did so with the consent of her purported Hindu family but that they later made false dowry claims against him because of his religious and caste identity of being a Sikh.
Equally as to the applicant’s claims that he will be pursued by the Indian authorities in Punjab in relation to the dowry case because of his ex-wife’s family’s Hindu caste and religion and because they have connections to the ruling Hindu BJP party; the Tribunal finds that such claims are without any corroboration and contrary to the DFAT country information that has been outlined above at paragraph 23, in so far as to Sikh naming conventions.
Finally as to the applicant’s claims for protection arising from the purported dowry case that has been supposedly filed against him, it was the applicant’s evidence at the hearing as has been outlined above at paragraph 39, that the Indian police had provided his parents in India with documentation relating to this case and that he could obtain same and provide copies of same to the Tribunal by the close of business on the day following his review hearing, 22 August. 2024.
In regard to that documentation purportedly provided to the applicant’s parents as to the dowry case having been filed against him in India and to which the applicant referred to at the hearing and under questioning agreed tor provide copies of same to the Tribunal by the close of business on 22 August 2024, the applicant emailed the Tribunal at 3.10pm on 22 August 2024 stating that:
I was trying to find any documents I’m not able to find any documents regarding but have ask for because it is long time ago
On 23 August 2024, the Tribunal in reply to the applicant’s email of 22 August 2024, informed the applicant that:
I am writing to you on behalf of the presiding Senior Member in relation to your review hearing on 21 August 2024. As you will recall you indicated to the Tribunal that you could provide documentation relating to the purported dowry charge filed against you in India that you claimed is in the possession of your parents in India.
The presiding Senior Member has received you email of yesterday's date in which you have stated:
"I was trying to find any documents I'm not able to find any documents regarding but have ask for because it is long time ago."
The presiding Senior Member now requests you as a matter of urgency reply to these questions:
1. Are you unable to locate and provide any documentation as to the purported dowry charge having been filed against you in India?;
2. What inquiries if any and with whom have you made as to these purported documents?; and
3.Why are you unable to provide copies of these purported documents to the Tribunal given you indicated you could do so?
The Tribunal requests for you to respond by close of business today.
The applicant later replied to the Tribunal on 23 August 2024 by email stating that:
I am currently unable to locate any specific documentation related to the dowry charge filed against me in India. I will continue my efforts to obtain and review these documents.
I trying to speak with my parents they said they didn’t give us any paper or any number about case they just inquiry about
That’s the way my parents tell me.
I am in the process of retrieving the necessary documents I’m trying to asking my parents about if they have any papers.
As of 4pm on the business day of 26 August 2024, the date of these reasons, no further information and/or documentation has been provided to the Tribunal by the applicant and/or any other person on his behalf. Noting the discrepancies in the applicant’s evidence with the information he had provided to the Department at his interview of 20 February 2019 and with the relevant and available country information the Tribunal is not satisfied that the applicant can access any documentation in relation to the purported dowry case in India that he claims was filed against him as the Tribunal is not satisfied that any such case was filed against him.
Therefore, the Tribunal finds that the cumulative effect of the matters that have been discussed above is that the Tribunal is satisfied that the applicant married his ex-wife in India with the consent and approval of his and her parents in and around [Year] and that they subsequently separated in Australia in 2016 and were divorced [in] May 2017 in Australia.
However, the Tribunal on the evidence before it, is not satisfied that the applicant’s ex-wife and/or her family are Hindu and have made a dowry complaint against him in India.
Additionally, even if the Tribunal had been satisfied that a dowry complaint had been made against the applicant it would have found in accordance with the relevant and available country information including the media articles relied upon by the applicant, that there are effective protection measures available to the applicant in India, s 5J(2) of the Act. And, that those measures can be provided to the applicant by the Indian authorities and he can access protection, and the protection is durable and consists of an appropriate criminal law, a reasonably effective police force, and an impartial judicial system, in accordance with the requirements of s 5LA of the Act.
Therefore, the Tribunal is not satisfied on the evidence before it, and for the reasons outlined above, that the applicant faces a real chance of persecution involving serious harm if he was to return to India in the reasonably foreseeable future on account of a dowry case having been filed against him and/or his Sikh religion and caste.
The Tribunal finds that the applicant’s fears of harm in this regard are not well-founded.
Complementary protection consideration
Additionally, the Tribunal has separately considered whether the applicant will face a real risk of suffering significant harm as a result of the purported dowry case having been filed against him in India and his religious and caste identity of being a Sikh.
As outlined above and for the same reasons that have been identified above the Tribunal has rejected the applicant’s evidence and claims in their entirety because of the cumulative effect of the inconsistencies in his evidence between his version to the Department and his evidence at the hearing and that parts of his evidence were also contrary to the country information relied upon by both the applicant and the Tribunal.
Additionally, the Tribunal further notes that if it had been satisfied that a dowry case had been filed against him in India, the tribunal would have been satisfied that the applicant in accordance with the country information relied upon by the applicant and the Tribunal could if he so needed to do so, obtain from an authority of India, protection such that there would not be real risk that he would suffer significant harm if he was to return to India in the future, s 36(2B(b) of the Act.
Therefore, on the evidence before it, and for the reasons outlined above, 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 the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Refugee criterion
Based on the information before it, the Tribunal rejects the applicant’s claims of fear of persecution in their entirety and having considered all of the applicant’s claims both individually and cumulatively, finds there has been no evidence of persecution or fears of persecution for the reasons provided in s 5J of the Act. Therefore, the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore that the applicant is not a refugee within the definition of s 5H of the Act.
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) of the Act.
Complementary protection
Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion, that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it, the Tribunal does not accept 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 the applicant will suffer significant harm as defined in s 36(2A) of the Act.
The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings
Additionally, there is no suggestion that the applicant satisfies 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.
As the Tribunal has found that the applicant does not meet the refugee and complimentary criteria and does not satisfy the criteria in s 36(2) of the Act, the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than India.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
Senior 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 3958

26 August 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction