1929134 (Refugee)

1929134 (Refugee) [2020] AATA 4678 (11 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1929134
COUNTRY OF REFERENCE:                   India
MEMBER:Peter Booth
DATE:11 September 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 11 September 2020 at 8:42am
CATCHWORDS
REFUGEE – protection visa – India – political opinion – member of Congress Party – threats and harassment from Bharatiya Janata Party (BJP) members – vague and imprecise evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kavun v MIMA [2000] FCA 370
MIAC v MZYYL [2012] FCAFC 147
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Subramaniam v MIMA [1998] FCA 305
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
Zhang v RRT & Anor [1997] FCA 423
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 October 2019 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of India, applied for the visas on 23 October 2017. The delegate refused to grant the visas on the basis that the applicants did not meet the criteria in s.36(2)(a) or s.36(2)(aa) of the Act.
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 (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) of the Act, 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.
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s.5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or must distinguish the group from society.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2).
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.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Pursuant to s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne and Crennan JJ, Callinan J agreeing.
Pursuant to s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.
Pursuant to s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants meet the criteria set out in either s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The facts are taken from the applicants’ protection visa applications as follows.
Identity and country of reference
The first named applicant is a [age] year old male, born in [Mehsana], Gujarat, India.
The second named applicant is a [age] year old female, born in [Valsad], Gujarat, India.
Both applicants can speak, read and write English and Gujarati.
The applicants both list Hinduism as their religion and state that they are of Indian ethnicity.
The applicants claim to have Indian citizenship by birth and copies of the applicants’ passports in the Department’s file confirm that they are citizens of India.[1]
[1] Passport, Department file [number].
The applicants state that they are married or in a de facto relationship with one another.
The first named applicant recorded that he had employment in India, including self employed farming, and has been unemployed in Australia.
The second named applicant listed no employment and reported being a housewife in her protection visa application.
The first named applicant reported completing high school education.
The second named applicant reported completing middle school education.
In summary, the first named applicant claimed fear of harm in India due to his affiliation with the Congress Party and that Bharatiya Janata Party (BJP) members had tried to kill him at his house, ransacked his house and assaulted his wife.
Migration history
The first named applicant arrived in Australia [in] August 2017 on [a temporary] visa and applied for a XA-866 Protection visa on 23 October 2017.
Claims
The first named applicant’s claims for protection are contained in his protection visa application. No Department interview was offered. The second named applicant did not make her own claims for protection in Australia.
The first named applicant’s claims are as follows:
Provide reasons why this applicant left that country or those countries?
I have attached my statement.
Did this applicant experience harm in that country or those countries?
Yes.
Give details including:
• the type of harm this applicant experienced
• the person/people responsible for the harm
• why they harmed this applicant.
I have attached my statement.
Did this applicant seek help within the country or those countries after the harm?
Yes
Give details including:
• the name of the person/organisation/authorities this applicant asked for help
• what help they provided, if they helped
I have attached my statement.
Did this applicant move, or try to move, to another part of that country or those countries to seek safety?
No.
Give details for why this applicant did not try to move to another part of the country or those countries.
I have attached my statement.
Does this applicant think they will be harmed or mistreated if they return to that country or countries?
Yes
Give details including:
• the type of harm or mistreatment this applicant is likely to experience
• the person/people who would be responsible for the harm or mistreatment
• why they would harm or mistreat this applicant.
I have attached my statement.
Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?
No
Give details about why this applicant thinks the authorities could not, or would
not, protect them.
I have attached my statement.
Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?
No
Give details about why this applicant is unable to relocate.
I have attached my statement.
No statement was provided with the application for a protection visa, despite references to such a document. On the day after the application for protection was filed, an undated statement was provided to the Department in response to a request for further information.The statement is in the following terms:
Statement of [first named applicant]:
I am an Indian citizen arrived in Australia [in] August 2017. I left India because of fear of persecution. By profession I was a farmer in India. I had ten years of education in India. My father was actively involved with Congress party. I liked the ideology of Congress party’s progressive values, equal economic opportunity and building social equality and became a member of Congress Party after finished degree. The BJP has abandoned its ideology and degraded itself into merely a political entity. I always maintain affinity to the Congress party and firmly believe in progressive values and always maintained the rules and regulation of the party. I had always availed opportunities to attend the classes and seminars conducted by the Congress party early stage of my membership. My family spirited participation in the above came to the notice of the local BJP which was consequently informed their cadres. I had always felt that the BJP government did not govern for the interest of all people. I had always desired to be significant presence in my local and business community. I believed that through my political involvement I would be able to provide strong opposition of the corrupt BJP member activities.
During the election I was asked to pay ten thousands Rupees depending on the farming activities and small farmers paid thousands of rupees. I raised the illegal party donation issue with local police but I was told to listen and do whatever they asked me.
After failing to stop their illegal activities we organised a rally taken out from one side of the area to another side attended by most of the business including people from different walk of life to condemn BJP’s activities. We carried out placards and banners with slogans against local BJP leaders and their corruptions.
The following day some local BJP members came to my house and threatened to kill me. They harassed me in front of others. They ransacked my house and threatened to kill my family members. They went to my house and assaulted my wife and asked to tell me to stop reporting against them. I was very worried about my family and did not report to police gain.
The current Indian and State Governments lack of political will and often have their tacit approval for such fringe elements to go on rampage to create and instil fear among those who stands for their democratic rights. There are numerous examples which can be found online in media that the BJP government did and continues to obstruct justice and prevent accountability for the perpetrators of violence against those who stand against the government supporters.
Under the current BJP Government in India, there is assault on secular and free Indian constitution. Any dissent against this government is not tolerated and are taken to task to teach them a lesson. The government does not want to just crush dissent but it wants to crush thinking. One can easily become anti-national in India currently, if one simply even questions any policy by the government. It’s the tyranny of the highest order.
I strongly believe that there is serious threat to my and my family’s life and well-being and that current government lacks will in tackling this elements and often are in connivance, aiding these elements. Even the supreme court of India has failed to live up to its role as custodian of constitutional rights and they are also being pressured to compromise. Every independent institution of repute had their independence scuttled some way or the other these days.
My family involved with Congress party many years ago and actively involved against BJP. The state election will be held on end of this year and they made a list to eliminate those who actively involved against them.
EVIDENCE AND SUBMISSIONS
The applicants have not provided any other submissions or documents to the Tribunal. The second named applicant has not made an independent claim for protection.
The first named applicant (‘the applicant’) gave evidence at the hearing, with the assistance of a translator, the substance of which was as follows. The applicant confirmed his personal details as set out above. However, in response to questions from the Tribunal, the applicant clarified two points. As to proficiency in English he said “I have problem in English, cannot write, my wife cannot know English at all” and in relation to their marital status he said “married, cannot remember the date”.
The applicant confirmed that, in summary, the basis for his claim for protection in Australia was that he left India due to his affiliation with the Congress Party and that BJP members had tried to kill him at his house, ransacked his house and assaulted his wife.
He also confirmed that he did not make any claim for protection in Australia on any other basis.
The Tribunal asked the applicant why he left India and now claimed protection in Australia. The applicant responded as follows:
I have fear of harassment, BJP is in power, and if anything spoken in their opposition they will harm us, if we go to complaint to police police is in their favour and will not listen to our complaints, I have fear of my life whenever there is election they ask for money, when we say in it into them they harass us and harm us, after that we go to complaint to the police, the police say don’t complain, because of that I have come to Australia, when I have gone to do propaganda somewhere else, they harm to my wife, ransacked home because of all this trouble we have come to Australia, the last election I received a call from a private number, which wants money for election, I did not apply, because of this reason I came to Australia, because of all this fear I do not want to stay in India, this is it.
The Tribunal proceeded to ask the applicant some questions based upon the evidence described above. The questions and the applicant’s responses, in summary, were as follows.
The applicant was asked whether he was involved with the Congress Party to which he said “yes”. When asked to elaborate he said “my father was a Congress member, after my year 10 I also joined Congress, I did not agree with the thought process of BJP, I joined Congress”. He did not elaborate. When asked as to the capacity in which he joined the Congress Party and whether he was an office bearer he said “not in office, I was with persons who were working with them, I gave my support, I was a member”.
The Tribunal observed that in the written application for protection the applicant had stated that his wife had been harassed and his house had been ransacked; the Tribunal invited the applicant to expand. He replied “when they ransacked, because of that fear I put children in the in-laws place, next time again they came I got fearful and I came to Australia”. He did not elaborate. When invited to provide details he said “I don’t remember when it happened but it was in 2016, I was being harassed, the last harassment was [in] August 2017”. He did not elaborate. He went on to add “those people, mean members of BJP, so whenever I used to go to seminars and put banners they used to say don’t do it and harm us, they kept on harassing us, so I left India”.

The Tribunal again asked the applicant whether he wanted to say anything else about the incident to which he had referred. He replied “whatever I said harassment went on and because of that I have left”.
When asked whether he reported harassment to the police he said: “I did go to the police, to file a report, but the police did not take it and they were under pressure of BJP who were in power”. The Tribunal asked the applicant how he knew that the police were “under pressure of BJP”. The applicant replied “whenever we went to police station, they took the complaint and said that we will investigate but investigation never happened, and they did not come back to us on that, so we know it was all the pressure of them”.
In response to a question from the Tribunal the applicant said that he had [children] and that they reside in India.
When asked when he and his wife decided to leave India he said “in 2016, we came here [in] August 2017”. When asked when in 2016 he and his wife had decided to leave India he replied “I cannot remember the date but it was when they started pressuring us, decided to come to Australia, may have been the sixth month of 2016”. When asked why it took until August 2017 to leave India the applicant said “after the decision to leave India, must decide how to get to Australia, we had to get a visa for Australia to come here, needed all this time to do that”. The Tribunal asked the applicant when he had obtained the [temporary] visa to which he said “one month before [August] 2017”.
The applicant was asked whether he left India because he was being persecuted to which he said “yes”. When the Tribunal asked why he and his wife had not brought their children with them to Australia, he replied: “because my children were little at that time, problems regarding education and all”. The Tribunal asked if he and his wife were fearful of being harmed in India why had they left their children in India, to which he replied “we kept our children at a safe place, that the main thing was their education, if come here must do English, they were left with a friend”.
The Tribunal asked the applicant whether there was any reason why he and his family could not have relocated within India. He replied “yes we kept them at a friends place because they are safe there”. When the question was repeated he said “we can stay anywhere else but because of the association with Congress will come in their eyes, and they will come, we will not be safe in any part of India”.
The Tribunal observed that the applicants arrived in Australia [in] August 2017 but did not claim protection in Australia until 23 October 2017. The applicant, when asked to explain the delay, said “I was not aware of the situation”.
The applicant was asked whether he believed that he would be harmed if he returned to India. He replied “yes, BJP is in power just now”. When asked whom he believed would harm or threaten him with harm if he were to return to India he said “members of BJP”. When asked whether there was any reason why he could not relocate within India if he were to return to India he said “BJP is in power in all states of India”.
The applicant declined an opportunity to add anything further to his application for review.
The second named applicant was also present during the hearing. When asked whether she wanted to give evidence or add anything to the existing evidence she said “no”.
The Tribunal asked the applicant why he had given no details of the allegation that his wife was harmed. He said “I was not at the house so they came home and my wife said, whatever you want to say, say to him, they slapped her two times”.
The Tribunal asked the second named applicant why she had not given evidence on this point. She replied “my husband gave evidence so I did not think I had to give anything”. The Tribunal asked the second named applicant whether she wanted to tell the Tribunal anything about this point to which she said “no”. When asked whether she was sure that she did not want to give any evidence on this point she said “yes”. The Tribunal observed that the assault on the second named applicant was a key part of the application for protection. The Tribunal further observed that the second named applicant had given no evidence on the point and now having been given further opportunities to do so had declined. The second named applicant confirmed that to be so. The Tribunal again invited the second named applicant to give evidence on this point. She replied “all this harassment happened every day, so to get away and live in a peaceful environment we want to do that”. She did not elaborate.
The Tribunal asked the applicant whether he wanted to comment on anything arising from the exchange between the Tribunal and the second named applicant. He replied “after this incident over and said why did you come to my house, they threatened me and say that if you say anything against BJP will kill you”. The Tribunal observed that a threat to kill had been mentioned in the protection visa application but had not been mentioned by the applicant previously in his evidence. The applicant was asked to explain why he had not done so. His response was “as you were asking step-by-step”. The Tribunal again asked why the applicant had not mentioned this detail before to which he said “whatever I remember I say”. He did not elaborate.
The applicant did not provide any additional documents to the Tribunal subsequent to the hearing.
The Tribunal finds that:
- The applicant is a [age] year old male, born in [Mehsana], Gujarat, India.
- The second named applicant is a [age] year old female, born in [Valsad], Gujarat, India.
- Both applicants can speak, read and write Gujarati.
- The applicants are of Hindu faith and are of Indian ethnicity.
- The applicants are citizens of India.
- The applicants are married.
The country information
In accordance with Direction No.84 made pursuant to s.499 of the Act, the Tribunal also had regard to country information assessments prepared by DFAT. The DFAT report titled “Country Information India” dated 17 October 2018 relevantly states as follows (footnotes omitted):
POLITICAL OPINION (ACTUAL OR IMPUTED)
3.20    Democratic elections for the Lok Sabha, the lower house of parliament, have been held since 1951. The only exception to this was when the Indian Congress Party’s then Prime Minister Indira Gandhi postponed elections during a period of emergency rule from 1975 to 1977. Notwithstanding the scale and complexity of India’s political landscape, and noting some exceptions, elections in India tend to be peaceful, broadly free and fair, reflect the will of the electorate, and result in regular transfers of power at central and state levels. Activists have occasionally called for communities in conflict-affected areas to boycott electoral processes, and low-level violence has sometimes occurred.
3.21    India has a diverse political landscape, which represents different ethnic, religious, secular and political interests. There are no constitutional, legal or other institutional restrictions preventing minorities from participating in politics. Political parties often court ethnic, religious and caste-based minorities for their ability to deliver ‘vote banks’.
Opposition Parties and Critics of the Government
3.22    The Constitution protects the right to form associations and unions. This right is subject to ‘reasonable’ restrictions in the interests of public order, decency or morality. Public demonstrations require advance notice and permission of authorities and frequently occur. Intelligence agencies regularly monitor the activities of civil society actors and individuals engaged in particular areas of sensitivity.
3.23    There are few publicly available statistics on election incidents. Reports of violence around polling stations do occur during electoral periods.
3.24    During 2017, police filed sedition charges against TTV Dhinakaran, the leader of the All India Anna Dravida Munnetra Kazhagam party, and some of his supporters for distributing pamphlets that criticised Prime Minister Modi and the Tamil Nadu Chief Minister.
3.25    DFAT assesses that leaders and members of opposition political parties do not face official or societal discrimination. The risk of political violence between rival supporters increases during parliamentary and state elections, especially in states where results are tightly contested. However, in general, elections in India are peacefully conducted.
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STATE PROTECTION
5.1 Under the Constitution, the states and union territories have primary responsibility for maintaining law and order. The Constitution also empowers the central government to intervene in some situations and perform some functions in police matters. The Ministry of Home Affairs is responsible for the internal security of the country as a whole. It oversees the recruitment and management of the national Indian Police Service and Central Police Organisations, coordinates the activities of various state police organisations, and provides financial assistance to state police forces.
Military
5.2      The Indian Armed Forces consist of four professional uniformed services: the Indian Army, Indian Navy, Indian Air Force and Indian Coast Guard. In addition, the Indian Armed Forces are supported by two paramilitary organisations, the Assam Rifles and the Special Frontier Force, and various inter-service institutions, such as the Strategic Forces Command. The Ministry of Defence oversees the Indian Armed Forces, and their supreme commander is the President of India. The Indian Armed Forces are well regarded by the Indian population.
Police
5.3      Each state and union territory maintains a separate police force. NCRB data records a total of 1.7 million officers of all ranks across India in 2013. The central government recruits and manages the Indian Police Service, which posts officers to senior positions within state police forces. The central government oversees national armed police organisations: the Assam Rifles, the Border Security Force, the Central Industrial Security Force, the Central Reserve Police Force, the Indo-Tibetan Border Police and the National Security Guards. It is also responsible for the Bureau of Police Research and Development, the Central Bureau of Investigation (corruption investigation agency that reports directly to the prime minister), the Directorate of Coordination of Police Wireless, the Intelligence Bureau, the National Crime Records Bureau, the National Institute of Criminology and Forensic Science, and the National Police Academy.
5.4      The processes of recruitment, transfer, promotion and dismissal of police officers are opaque. Police resources, training and staffing are limited in some areas. There are media and civil society allegations that senior officials or political figures shape the conduct of investigations. Some victims of crime allege that people other than political figures or senior officials sometimes also attempt to interfere with police investigations.
5.5      Registration, investigation and prosecution of cases may be affected by bias in relation to the class, caste, ethnicity and religion of a victim or offender. Ethnic and religious minorities complain that police lack sensitivity, suspicions about which sometimes lead to communal violence. Local sources report that police, along with other agencies including the courts, public servants, judiciary and prosecutors, have an inherent bias when dealing with Dalit victims of crime in particular.
Judiciary
5.6      The Indian judiciary is independent of the executive branch. Some international rights organisations claim that corruption is prevalent, particularly at lower levels of the judiciary. Large backlogs of cases means that most citizens have great difficulty securing justice through the courts. In 2017, the government created a search and evaluation committee to support the appointment of judges.
5.7      The high courts in 2017 had over four million cases pending, with 25 million cases awaiting trial in subordinate courts. The Supreme Court has over 60,000 cases pending. Backlogs lead to lengthy pre-trial detention periods for a large number of suspects, in some cases significantly longer than any prison term their alleged offence would attract. Over two thirds of detainees in the criminal justice system are awaiting trial, and prisons are overcrowded.
5.8 Section 39A of the Constitution mandates that equal justice and free legal aid are rights of every Indian citizen. In practice, defendants are assigned state-appointed lawyers. The quality and consistency of representation by state lawyers varies. The standard of defence from a state-appointed lawyer would not compare to a highly-paid private lawyer.
5.9      In April 2017, the Ministry of Law and Justice launched an alternative to improve legal assistance for disadvantaged citizens. This included expanding pro-bono legal services to improve access to higher quality legal advice. The ministry partnered with the Ministry of Electronics and Information Technology to launch a pilot of ‘tele-law’ services, which provide legal services through common service centres in remote rural areas.
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INTERNAL RELOCATION
5.14 Sections 19(1)(d) and (e) of the Constitution guarantee citizens the right to move freely throughout the territory of India and the right to reside and settle in any part of the territory of India, subject to reasonable restrictions in the interests of the sovereignty and integrity of India and the security of the state. The interpretation of ‘reasonable restrictions’ is left to the government and courts. It enables laws and regulations that can restrict movement (for example, where there is unrest or in some border areas) and residence (non-residents cannot buy land in Jammu and Kashmir or in Uttarakhand).
5.15    India’s internal migration flows are substantial. Migration data from the 2011 census has been collected, but not yet released. The 2001 census recorded an estimated 307 million internal migrants in India, defining as a migrant anyone who lived in a place different to their place of birth or place of last residence. This figure represents approximately 30 per cent of India’s total population. The numbers may include people who had moved over very short distances within the same district, and may have missed a significant number of seasonal migrants, many of whom work in the informal sector without papers.
Limits to internal relocation
5.16    Several factors may limit options for internal relocation. These include language barriers, a lack of documentation, lack of familial or community networks, lack of financial resources and employment opportunities, and discrimination based on ethnicity, religion, caste or gender.
5.17    India is a multi-lingual and multi-ethnic nation. Language barriers prevent internal migrants from obtaining access to health or educational opportunities. Bilingual or multilingual internal migrants have better opportunities for internal relocation.
5.18    A lack of identity documents and proof of local residence can restrict internal migrants’ access to public services and social security programs or even banking facilities. As a result, they often face barriers in obtaining subsidised food, housing and banking services until they can establish identity and local residence. Ethnic, religious or caste identity may lead to anti-migrant sentiment and limit options for internal relocation. Requirements to provide details of a husband’s or father’s name can exclude single women, women with children and domestic violence survivors from government services and accommodation.
5.19    DFAT assesses that individuals seeking protection from discrimination or violence have a wide range of viable internal relocation options, although these may be more limited for some individuals depending on their personal circumstances.
Other country information is as follows (footnotes omitted):
Bharatiya Janata Party (BJP)
Prime Minister Narendra Modi and his cabinet were sworn in on 26 May 2014. As of March 2018, the BJP and its allies controlled 22 states and the Congress Party and allies controlled four states. In May 2018, a coalition of the Congress Party and a regional party, the Janata Dal (Secular), defeated the BJP in an election for the Karnataka state assembly. In June 2018, Indian-administered Kashmir came under the state governor’s direct rule after its chief minister resigned following the BJP’s withdrawal from a ruling coalition with the People's Democratic Party. In November 2018, Jammu and Kashmir Governor Satya Pal Malik dissolved the legislative assembly in Kashmir. In December 2018, the BJP suffered losses to Congress in three state elections in Rajasthan, Madhya Pradesh and Chhattisgarh, while regional parties won elections in Telangana and Mizoram. The BJP was reported in that month to be in government, or part of a government, in 16 states, and Congress in government or part of a government in five states.
In July 2019, the BJP won a confidence vote against Congress in the Karnataka state assembly, and returned to power in that state. On 5 August 2019, India’s government revoked Article 370 of India’s constitution, under which the state of Jammu and Kashmir had partial autonomy. The government said it would break the state up into two smaller, federally-administered territories. In October 2019, the federal government formally revoked the region's constitutional autonomy, dividing up the old state of Jammu and Kashmir into the two union territories of Jammu and Kashmir, and Ladakh. In state assembly elections held in in the last three months of 2019, the BJP’s performance was mixed, with the party losing control over Maharashtra and Jharkhand. In Haryana, the BJP had to rely on the Jannayak Janta Party to form government. In February 2020, the Aam Aadmi Party was returned to power in the Delhi state assembly election, winning 62 seats while the BJP won only eight seats. In March 2020, the BJP regained power in Madhya Pradesh state after the Congress government fell following the resignations of 22 Congress state assembly legislators.
In a general election for a new Lok Sabha, which was held in seven stages in India between 11 April and 19 May 2019, the government was returned to power with an increased majority. The BJP won 303 seats on its own, and together with its NDA allies, has 353 seats of the 542 seats that were up for election in the Lok Sabha. The election results show that the BJP has expanded its geographical reach in India. The party’s strongest support has traditionally been in India’s Hindi-speaking states in the north, and in Modi’s home state of Gujarat and in Maharashtra. Since Modi became prime minister, the BJP has formed governments in north-eastern states like Assam and Tripura, which are primarily Assamese and Bengali-speaking, and won seats in non-Hindi speaking states like Orissa and West Bengal in the east. The party still only has a modest presence in southern India.
In August 2018, the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance reported that the election of the Hindu nationalist BJP has been linked to incidents of violence against members of Dalit, Muslim, tribal and Christian communities, with reports documenting the use of inflammatory remarks by BJP leaders against minority groups, and the rise of vigilantism targeting Muslims and Dalits. During 2019, the BJP-led government failed to properly enforce Supreme Court directives to prevent and investigate mob attacks, often led by BJP supporters, on religious minorities and other vulnerable communities. Mob violence against minorities, especially Muslims, by extremist Hindu groups affiliated with the BJP continued amid rumours that they traded or killed cows for beef. The BJP and the RSS have been accused of tacitly supporting Hindu fringe groups, and the government’s silence on cow protection hate crimes, which are disproportionately against vulnerable groups such as Muslims and Dalits, reportedly differs to its response to mob lynchings triggered by baseless rumours of child abduction circulating on social media, which provoked ministerial anger against the social media platforms used to spread the rumours. In February 2020, the German Institute for International and Security Affairs commented that the Modi government had been pushing its Hindu-nationalist agenda in its second term of office since May 2019. This included the division of the Muslim-majority state of Jammu and Kashmir into two centrally administered union territories and the publication of a National Register of Citizens in Assam. The Supreme Court ruling in favour of the construction of a Hindu temple on the site of a mosque in Ayodhya had provided further impetus to the Hindu nationalist agenda. In April 2020, Bertelsmann Stiftung reported that the most problematic development was the growing influence of hard-line Hindu-nationalist groups.
Human Rights Watch reports that in 2019, the government continued to harass and sometimes prosecute outspoken human rights defenders and journalists for criticising government officials and policies. The authorities used sedition and criminal defamation laws to stifle peaceful dissent. Journalists were harassed, and sometimes detained, for their reporting or critical comments on social media, and faced increasing pressure to self-censor. India continued to lead the world in the largest number of internet shutdowns, as authorities resorted to blanket shutdowns either to prevent social unrest or to respond to ongoing law and order problems. By November 2019, there had been 85 shutdowns, 55 of which were in Jammu and Kashmir, according to the Software Freedom Law Centre.
Indian National Congress Party (Congress)
Congress has dominated Indian politics for much of the post-independence era, but in the 2014 elections, the secular Congress-led United Progressive Alliance (UPA) government won only 60 seats of the 543 elected seats in the lower house of Parliament, with Congress itself picking up 44 of those seats. Congress’s dramatic failure was related, among other things, to its inability to tackle issues of corruption, the rejection of ‘dynastic’ politics as embodied by the Nehru-Gandhi family, and the desire for change and economic reform. The number of Congress-aligned state governments has also declined since 2012. During 2018, Congress had some electoral success in state elections, defeating the BJP in coalition with a regional party, the Janata Dal (Secular), in an election for the Karnataka state assembly in May 2018, and winning three state elections in Rajasthan, Madhya Pradesh and Chhattisgarh in December 2018.
In the April/May 2019 general election, Congress won only 52 seats, with Congress leaders acknowledging that the BJP raised more money and ran a superior election campaign. Rahul Gandhi, the Congress party leader during the election, is reported to have struggled to compete with his much more assertive and intense rival in Prime Minister Modi, and the party faces a shrinking of its geographical space. In July 2019, Congress was reported to face defections and intra-party disputes. In the same month, the BJP won a confidence vote against Congress in the Karnataka state assembly, and returned to power in that state. In August 2019, Sonia Gandhi was selected as the interim leader of Congress while the party searched for a successor for her son, Rahul Gandhi, who had resigned following the election. In a state assembly election held in Maharashtra in October 2019, Congress formed government with the regional Nationalist Congress Party and the Shiva Sena. Congress also formed government following the 2019 Jharkhand state assembly election in alliance with the Jharkhand Mukti Morcha. In March 2020, Congress lost power in Madhya Pradesh state to the BJP after 22 Congress state assembly legislators resigned.
Conclusions
The country information informs the Tribunal as follows. First, elections in India tend to be peaceful, broadly free and fair, reflect the will of the electorate, and result in regular transfers of power at central and state levels. Activists have occasionally called for communities in conflict-affected areas to boycott electoral processes, and low-level violence has sometimes occurred. India has a diverse political landscape, which represents different ethnic, religious, secular and political interests. There are no constitutional, legal or other institutional restrictions preventing minorities from participating in politics. Leaders and members of opposition political parties do not face official or societal discrimination. The risk of political violence between rival supporters increases during parliamentary and state elections, especially in states where results are tightly contested. However, in general, elections in India are peacefully conducted. Under the Constitution, the states and union territories have primary responsibility for maintaining law and order. The Indian judiciary is independent of the executive branch. Some international rights organisations claim that corruption is prevalent, particularly at lower levels of the judiciary. Section 39A of the Constitution mandates that equal justice and free legal aid are rights of every Indian citizen. However, corruption and incompetence remain obstacles to adequate state protection in India. The Constitution guarantees citizens the right to move freely throughout the territory of India and the right to reside and settle in any part of the territory of India. As to BJP: BJP won a parliamentary majority on its own in the May 2014 general election and formed government along with its National Democratic Alliance (NDA) partners. The BJP experienced mixed results in state assembly elections held during 2019. The government was returned in the April/May 2019 general election. Since the election of the BJP government in 2014, Hindu nationalist groups have grown in influence. The BJP-led government is reported to harass persons and organisations that are critical of it.As to the Congress party: The Indian National Congress Party (Congress) was unsuccessful and lost in both the 2014 and 2019 general elections to the Hindu-nationalist BJP. Congress has had mixed results since its loss in the 2019 general election.

The evidence of the applicant was often unresponsive to the question, vague, imprecise or discursive. Often the evidence of the applicant contained elements of all these issues. The Tribunal has rehearsed the evidence as a representative narrative, given in real time, which was often quite disjointed. The Tribunal’s rehearsal of the evidence is not intended to be a transcript of the evidence, rather the best recording as it transpired. It does give and is intended to give an appreciation of the nature and quality of the applicant’s evidence. The Tribunal notes that it is a requirement of the Act that the applicant provide details of the applicant’s claim and that it is not incumbent upon the Tribunal to prove the applicant’s case.
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. The applicant did not produce any documents to corroborate the evidence. This is most surprising having regard to the importance of this matter, apparently, to the applicant and the time which the applicant has had to consider and prepare for this application.
The applicant’s evidence was extremely vague as to the circumstances in which he chose to leave India. At the outset he said that he had “fear of harassment” but provided no details, this harassment was apparently connected to “BJP is in power” but he gave no cogent explanation why he and his wife would be persecuted because of that fact. He said that he had “fear of my life” but again provided no details; he referred to making a complaint to the police but provided no documents; he asserted “they harm to my wife” but did not elaborate and did not mention it again until after his wife had been asked to explain why she did not give such evidence. He referred to receiving “a call from a private number which wants money for election” but gave no details, he said that he was “a member” of the Congress Party but went on to say he was not an office bearer but “I gave my support”, in any event he provided no details of his membership of the Congress Party. When asked to expand upon the assertion that his wife had been harassed and his house ransacked he gave vague replies; he said that he reported the harassment to the police but produced no documents; he asserted that the police were under political pressure to ignore his complaint but provided no details of this assertion. He decided to leave India in 2016 but did not do so until August 2017 and provided no reason for this except that it apparently took some time for him to obtain a tourist visa, but he provided no corroborating documents. The applicants left their [young] children in India and provided no satisfactory explanation as to why their children did not accompany them to Australia. While he said that he could not relocate within India, he provided no cogent explanation and provided no cogent evidence to support the assertion that the applicants would be harmed if they were to return to India.
The applicants did not give evidence at the hearing consistent with the claims made in their written application for protection. Initially the second named applicant declined an opportunity to give evidence. However the Tribunal asked her why she had not given evidence of the alleged assault upon her. Notwithstanding several opportunities to do so the second named applicant provided no cogent reason why she had not given evidence on that point. Further, she refused to give any details of the alleged assault. The applicant was also asked to explain why he had not given evidence on this point in any detail. His response was unconvincing. The applicant was also asked why he gave no evidence regarding an assertion that someone had threatened to kill him. His response was, again, unconvincing.
It is also relevant that the applicant did not make a claim for protection in Australia until several months after arriving in Australia. His reason for not doing so was unconvincing. Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[2] Even a three-month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution.[3] In Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 the Court observed in regard to a delay in lodgement of a protection application: “In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth of the applicant's alleged fear of persecution. It is a rational consideration open on the material”. In the Tribunal’s view, the applicant’s delay in lodging a protection visa application further suggests that the bases of the claim for protection are not be accepted.
[2] Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370.
[3] Subramaniam v MIMA [1998] FCA 305.
The applicant’s evidence was vague and lacking in detail. Often the detail was only supplied after the question had been asked several times or with the invitation of the Tribunal to elaborate. The applicant did not give evidence in the oral hearing of key aspects of his written claims for protection; the second named applicant refused to do so. All these matters have been taken into account by the Tribunal and given significant weight. On balance, for the reasons referred to above, the Tribunal does not accept the applicant’s evidence as to the basis for his claim for protection.
The Tribunal has considered whether the applicant feared persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion in accordance with s.5J(1)(a) of the Act.
Having regard to the evidence the Tribunal makes the following findings:
a)the Tribunal is not satisfied that the applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;
b)the Tribunal is not satisfied that there is a real chance that, if the applicant is returned to India, the applicant would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;
c)the Tribunal is not satisfied that there is a real chance of persecution that relates to all areas of India;
d)the Tribunal is not satisfied that the applicant has a well-founded fear of persecution;
e)the Tribunal is not satisfied that the applicant is a refugee in accordance with s.5H(1) of the Act; and
f)the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations pursuant to s.36(2)(a) of the Act.
Complementary protection criteria assessment – s.36(2)(aa)
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 has considered whether 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.
The mere fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or if that harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative enquiries and decision-making, the relevant facts of the individual case must be provided by the applicant.
While the Tribunal is required to adopt a reasonable approach to such matters, the Tribunal is not required to make the applicant’s case out for the applicant. Neither is the Tribunal required to accept uncritically any and all of the allegations made by the applicant. In respect of the Tribunal’s assessment in regard to complementary protection, the Tribunal adopts the findings stated above in relation to the refugee criterion assessment.
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)(b) or (c) 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 any of the criteria in s.36(2).
The primary applicant’s claim for protection in Australia having been unsuccessful, the application by the secondary applicant must also fail.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Peter Booth
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.
…

[2020] AATA 4678

11 September 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice