1929102 (Refugee)

1929102 (Refugee) [2023] AATA 4570 (14 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1929102
COUNTRY OF REFERENCE:                   India
MEMBER:Rosa Gagliardi
DATE:14 November 2023
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 November 2023 at 11:37am
CATCHWORDS
REFUGEE – Protection Visa – India – dispute with criminal who was affiliated with the Bharatiya Janata Party (BJP) –member and financial supporter of the Congress Party – no additional information/documentation to support claims – applicant failed to attend hearing – insufficient evidence – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 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 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 20 September 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 25 May 2018. The delegate refused to grant the visa on the basis that the decision-maker in the first instance 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 that 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 he will suffer significant harm as defined in s.36(2)(aa) of the Act.
Engagement with the Tribunal
On 19 October 2023 the Tribunal wrote to the applicant via an email address provided by him for the purposes of the review inviting him to a hearing to have been held on
10 November 2023 at 1.30pm EST. The hearing invitation made it clear that if the applicant was not available on this day or he believed he would experience difficulty in attending, he should advise the Tribunal as soon as possible. The applicant was also advised that the hearing date would only be changed if there were good reasons for doing so. In the hearing invitation, the applicant was also asked to assume the hearing would go ahead unless the Tribunal advised otherwise.
As part of the hearing invitation, it was noted that if the applicant did not appear at the scheduled hearing, the Tribunal might make a decision on the review without taking any further action to allow or enable him to appear.
The Tribunal also asked that the applicant provide all documents he intended to rely on to support his case by 3 November 2023. The hearing invitation highlighted that the Departmental decision should set out the reasons for the decision and that the applicant should have regard to these and that further information could be provided to the Tribunal.
The applicant did not appear on the scheduled date or time. Nor did he contact the Tribunal to advise he was unable to attend. Four separate SMS reminders were sent to the applicant to remind him of the hearing to have been held on 10 November 2023, but these all returned as “delivery failed”. It is for the applicant to keep the Tribunal informed at all times of changes of address and contact details so that the review is kept alive.
As well as not responding to the hearing invitation the applicant did not provide additional information/documentation to support his claims.
The Tribunal acknowledges that proceeding to decision on the material before it is discretionary, however, in the circumstances it is satisfied that efforts were made to engage with the applicant to enable him to attend a hearing so he could put forward his case in person. The hearing invitation was not returned to sender and the applicant did not advance any further information to the Tribunal. As the applicant has not communicated with the Tribunal and given that the applicant did provide the Tribunal with a copy of the Departmental decision, the Tribunal will make a decision “on the papers”.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade 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 has a well-founded fear of persecution for reasons set out in s.5J(1) of the Act, and there is a real chance that if the applicant was returned to India now or in the reasonably foreseeable future, he would be persecuted for one of those reasons and/or whether he would suffer serious harm. In the alternative, the Tribunal is required to consider 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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s claims at the time of application
The applicant was asked why he had left India and he wrote:
I was a businessman by profession in India. After I came back from [country] I started [business] in [City 1]. I also became a member of Congress Party. I was the one of the big financial supporter of the party. I was also a [occupation]. I had dispute with Anand Pal Singh who was killed by the police last year. I had 24 hours police protection because of him. After his death police decided to not continue. But his brothers still alive and his people still working on the ground. They accused me behind his death and my own brother was arrested [in] March 2018.
The applicant also indicated in his application that he had experienced harm in India. Asked to provide details of this harm, including: the type of harm he experienced and the person or people responsible for the harm; and why they harmed the applicant, he responded:
They attempted to kill me a few times after the police protection ended. My brother still in jail in false accusation and they tried to frame me in the same case. We are very wealthy family in [City 1] and Anandpal Sing people affiliated with BJP trying to destroy us. I have few cases going on in court in regards of property. They attempted to kill me because of my security I am still alive.
The applicant was asked whether he had sought help in India and he responded, “Yes”. The applicant was also asked to include the person/organisation/authorities he had asked for help and if they assisted what type of help they had provided. The applicant wrote:
The police gave me 24 hours protection but after his death they decided to stop it despite the threats remain obvious. Anandpal Singh’s brother’s are member of BJP and they will do anything to eliminate me from [City 1]. I never wanted to leave India but after they arrested my brother I felt very in secured (sic) and could not rely on my own security.
The applicant declared that he had not attempted to move to another part of the country to seek safety. Asked to explain why, he wrote, “I can not hide in India and its very hard to organise security in different place”.
In his application the applicant explained that if he returned to India, “It is a very serious situation. They blamed me for Anandpal Singh was killed in police encounter”. The applicant was also asked: what type of harm or mistreatment he was likely to experience; the person/s who would be responsible for the harm or mistreatment; and why they would harm or mistreat the applicant. He responded, “I am very lucky to be alive. They attempted to kill me and if I go back to India they will kill me”.
The applicant was asked his view on whether he thought the authorities of India could protect him if he went back and he responded, “No”. Asked to provide details he replied, “Police decided to stop my protection and they decline to reinstate my protection”. He answered that he would not be able to relocate within his country because “I can not hide in India. They are very organised criminals and they will find me. They started to look for me already”.
On 23 July 2019, the Department requested that the applicant provide further information and details of his claims and about internal relocation and his ability to reside safely elsewhere in India apart from his home region.
The Department in its letter of 23 July 2019 put to the applicant concerns about the credibility of his claims as follows:
·Why would you be accused of the death of Anand Pal Singh when it is widely published that he was killed by the police.
·Why would your brother be arrested over the death of Anand Pal Singh when it is widely publicised that he was killed by the police.
·You claim you had police protection for 24 hours in relation to the death of Anand Pal Singh. Why did you have police protection for 24 hours in relation to the death of Anand Pal Singh. Why did you have police protection? Also why did the police stop the protection after 24 hours?
·Your wife and children reside in your hometown of [City 1], [District 1], Rajasthan. Why would the people threatening to kill you not attempt to harm your family?
The Department invited the applicant to provide further information and comment on the above concerns. The applicant was provided a timeframe of 28 days to respond to the request. The applicant did not respond within the requested timeframe, nor did he contact the Department to request an extension of time to respond.
At a hearing the Tribunal would have had numerous similar questions to put to the applicant and would have asked that he elaborate in as much detail about the events he claims occurred. The applicant’s claims in writing are general and vague and raise unanswered questions that lead the Tribunal to reject the applicant’s claims in their entirety.
While the Tribunal acknowledges that an applicant is not required to corroborate their claims it is not unreasonable where it is safe to do so that an applicant provide supporting information. For example, the applicant alleges that he was a member and financial supporter of the Congress Party and that he had a dispute with Anand Pal Singh who was affiliated with the Bharatiya Janata Party (BJP).
Being a member of, and someone who made large financial contributions to the Congress Party, would have entailed the applicant keeping some paperwork such as receipts for his contributions. The Congress Party would also have records indicating that the applicant was a supporter of the party. At a hearing the Tribunal would have liked to ask the applicant for how long he had supported the party and the amount overall he had contributed over the years.
The Tribunal would have also liked to ask the applicant what had motivated him to contribute to the Congress Party and to explore with him the nature of his political consciousness. As it is, the Tribunal has a paucity of information about these critical matters given that the applicant claims that his political opinion (actual and imputed) is critical to his claims because he had a dispute with Anand Pal Singh who was affiliated with the opposing BJP, although the applicant has not made clear how his political contributions to the Congress Party particularly highlighted him as an opponent of Anand Pal Singh and the BJP in general. Based on the general and undetailed information before it, the Tribunal rejects that the applicant was a member of the Congress Party or that he was an extensive benefactor of that Party or that he had a political profile of any kind in India.
The other connected pivotal claim by the applicant is that he had a “dispute” with Anand Pal Singh. At a hearing the Tribunal would have liked the applicant to detail the nature of that dispute and why they might have been at odds with one another. These matters are particularly unclear. The Tribunal does accept, however, that Anand Pal Singh existed and was a figure in Indian history as indicated by the country information:
When Anand Pal Singh, Rajasthan’s most dreaded gangster, was finally shot dead in a midnight encounter with the state police’s Special Operations Group (SOG) on June 24, it brought an end to a year of hot pursuit.
SOG IG Dinesh M.N.N, who has spent seven years in jail for his role in the Sohrabuddin Sheikh fake encounter case, meticulously tracked Singh for a while a year before his team caught up with the gangster at Malasar in Churu district. It was a dangerous enterprise. Singh 43, had attained high notoriety and a reputation of invincibility, having made a daring escape from police custody in Nagaur in 2015 and subsequently shooting dead a police constable who challenged him during an encounter.[1]
[1] India Today, 17 July 2017, Rohit Parihar, ‘Anand Pal Singh encounter: End of Rajasthan’s Raees era’, Anand Pal Singh encounter: End of Rajasthan's Raees era - India Today.
Hence, while the Tribunal accepts that Anand Pal Singh existed and was shot by police the applicant’s claims to have had a connection with the gangster are nebulous. At a hearing the Tribunal would have asked the applicant to provide the Tribunal a plotted history of his relationship with Anand Pal Singh and to explain the nature of any dealings with him. There are many gaps in the applicant’s narrative concerning his encounter/s with this notorious criminal and the Tribunal would have liked the applicant to speak about this association and in what context this connection had developed.
The Tribunal would have expected that had the applicant had interface with such a character that others who knew the applicant in India would be able to provide supporting statements also setting out their understanding of the dispute between the applicant and Anand Pal Singh. At a hearing the Tribunal would have clarified with the applicant the nature of any assistance he sought from the police and how they responded to him if he sought assistance. Similarly, others in his community in the applicant’s home area could verify that in fact the applicant had had some dispute with Anand Pal Singh and could elaborate on the cause of the claimed enmity between the two persons.
The Tribunal would have also liked the applicant to clarify how Anand Pal Singh was
affiliated with the BJP and could he provide country information to bolster his claims that
Mr Singh’s involvement in the BJP for some reason caused the applicant to fall foul of
Mr Singh and the BJP. As the Tribunal has rejected that the applicant was ever a member of the Congress Party or that he made extensive financial contributions to the Party, or that he held an actual or imputed political opinion of any kind, any claimed connection between the applicant and Mr Singh’s affiliation with the BJP falls away in terms of relevance to the applicant’s claims.
Based on the information before the Tribunal, which is unsupported and undetailed, the Tribunal is not persuaded that the applicant ever had a connection of any sort with Anand Pal Singh and the Tribunal rejects the applicant’s claim that he ever had an unspecified dispute with him. The Tribunal’s findings are reinforced because the applicant has claimed that Anand Pal Singh’s brothers and “his people” had accused the applicant of being behind Anand Pal Singh’s death. This is a matter the Tribunal would have explored in depth with the applicant at a hearing as it is perplexing.
The applicant has not submitted any information as to why anyone would accuse the applicant of having murdered Anand Pal Singh if it was well known in the community that it had been the police who had shot him. The Tribunal would have liked to know how Anand Pal Singh’s brothers and associates could have possibly directed the accusation of murder towards the applicant when objectively it was known that the police had shot him as part of their law enforcement operations. Similarly, there is little information about how or why the applicant (and his brother) were framed for the murder as claimed. The applicant has not made out his claims in this respect. He was asked by the Department to provide an explanation but did not do so. The Tribunal has many questions about this generalised claim that the applicant was accused of the murder, and it is unclear in what context state actors or non-state actors levelled the accusation against him. As such, the Tribunal rejects that the applicant has ever been accused of the murder of Anand Pal Singh by Mr Singh’s brothers and associates or that he (and his brother) was framed for the death.

The applicant has provided little detail as to why and who might have arrested the applicant’s brother [in] March 2018 over the death of Anand Pal Singh. Given that the applicant’s brother was even further removed from the death and given that there is little doubt that the police carried out the execution, the Tribunal has serious concerns with this aspect of the applicant’s claims and dismisses it outright. The Tribunal would have liked to be in a position to query the applicant about where his brother might have been at the time of the arrest and what offence he might have been charged with. Such an incident would have involved some paperwork by the authorities who had arrested the applicant’s brother. The Tribunal would have expected, for example, that the applicant could provide evidence of charges being laid and evidence of the conditions of his release - if it were claimed he was released since the time of application. The Tribunal does not have enough information before it and therefore rejects that the applicant’s brother (unidentified) would have been implicated in Mr Singh’s killing, and that he was arrested in connection to the murder in some unspecified manner.
Another aspect of the applicant’s claims that lack cogency is the assertion that the applicant, prior to the death of Mr Anand Pal Singh, had police protection. Did the applicant mean that he had received police protection because of the claimed dispute with Mr Singh or was it for some other reason? The Tribunal would have liked to explore these matters at a hearing and would have asked, for example, what that police protection involved in particular. Other unanswered questions involve how many officers were protecting him and whether he had been taken away from the home area during his police protection. The Tribunal would have also expected that the applicant might have been able to provide documentation from police or other authorities to verify that state resources had been invested in keeping the applicant safe. The Tribunal has, however, rejected that the applicant ever had a dispute with
Mr Singh or any other state or non-state actors in India and therefore rejects that he was ever in need of protection provided by the state for any reason. Given the seriousness of the applicant’s claims in this regard, the Tribunal would have expected the applicant to have provided to the Department and the Tribunal a good deal of detail about such a momentous time in his life.
In passing the Tribunal notes that the Department interpreted the applicant’s statement that he had 24-hour protection as that the applicant was only protected for 24 hours, where it could be that the applicant was indicating that he had protection on a 24/7 basis. Nothing turns on this, however, as the Tribunal has rejected that the applicant ever needed protection.
The applicant then claims that protection was withdrawn after the death of Mr Anand Pal Singh’s death. If this was because they considered the applicant was no longer in danger, why did the applicant not put this forward as an explanation. At a hearing the Tribunal would have asked the applicant how the police made an assessment that he no longer needed protection. These matters remain unclear. As the Tribunal has rejected that the applicant ever had any association with Anand Pal Singh or that he was accused of his murder, and that the applicant had a need for protection for some unspecified reason, it follows that the Tribunal also rejects that the applicant’s protection was suddenly withdrawn on the death of Mr Singh.
The applicant has also advanced that “they” attempted to kill him a few times after the police protection ended. These are grave allegations, but the applicant has provided little information about such matters. The applicant has provided his claims in a vacuum and without context. Where, for example, was the applicant when unnamed persons attempted to kill him and were there any witnesses to such attempts? The Tribunal would have liked to know whether the applicant had attempted to report the matter to the law enforcement authorities and their response if any. The Tribunal would have liked the applicant to also give a time frame for such murderous attempts and how these had been carried out. The Tribunal would have asked the applicant whether he had ever been injured in the claimed attempts to murder him and whether he might have medical information to support his claims that he had sustained attempts to kill him.
Given that the information before the Tribunal does not sustain that the applicant suffered serious harm in the past in India on account of the BJP, Anand Pal Singh, his brothers or associates, the Tribunal rejects that the applicant was targeted for murder by unknown individuals at any time. This is because the Tribunal has rejected the applicant’s premise that he ever had any involvement with Anand Pal Singh or that he and his brother were accused of Mr Singh’s murder. Further, the Tribunal has rejected that the applicant and his brother had ever been framed by any state or non-state actors for Mr Singh’s death.
The applicant has also asserted that the BJP is trying to destroy his family because they are wealthy, and that the applicant has a few cases in court regarding property. This claim is unsupported by insufficient information that would assist the Tribunal understand why the BJP had animosity towards his family due to their wealth and the Tribunal has little evidence that the BJP was attempting to deflect the killing of Anand Pal Singh from the police. Consequently, the Tribunal also rejects that the applicant is being targeted by any political or non-political party or other individuals because of the applicant’s wealth or for any other reason.
The Tribunal would have expected the applicant to be able to provide evidence of his court proceedings, where they are at, and who or what, the applicant is taking action against. The Tribunal at a hearing would have asked the applicant to spell out exactly what actions he was taking and in which courts in particular matters were being heard. As the claimed court proceedings are important matters in the applicant’s claims, he has provided insufficient persuasive detail leaving the Tribunal to reject that the applicant has matters in the Indian courts involving property disputes or any other matters.
In terms of the applicant’s repeated claim that “they” attempted to kill him, but it is only due to his security that he is alive, the Tribunal does not have details of the attempted murders and has found that they never occurred. It is also unclear as to what the applicant means that it is only due to his security that he is alive. At a hearing the applicant would have been encouraged to speak about this matter in a realistic manner to explain what security he is referring to. As the Tribunal has already rejected that the applicant was ever a target for his political or imputed political opinion or for any other reason under the Act, the Tribunal also rejects that the applicant was required to engage in security of any sort for his personal protection.
The information before the Tribunal regarding the applicant’s claims are scant and general. The Tribunal has rejected that the applicant has a well-founded fear of persecution on return to India now or in the reasonably foreseeable future on any account and the Tribunal has rejected each of the applicant’s claims individually, cumulatively and in their entirety. It has also rejected that the applicant has suffered any serious harm for reasons set out under the Act (but not limited to) in the past and there is no reason for the Tribunal to find that he will do so in the future.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in is respect of whom Australia has protection obligations under s 36(2)(a)
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
The Tribunal 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 he will suffer significant harm as defined in s 36(2A) of the Act. The Tribunal rejects that the applicant will be arbitrarily deprived of his life; that he will be subjected to torture; or subjected to cruel or inhuman treatment or punishment; or will be subjected to degrading treatment or punishment. This is because the Tribunal has found that the applicant and his family have no adverse political or other profile with state or non-state actors in India.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rosa Gagliardi
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.
…

[2023] AATA 4570

14 November 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Appeal