1929869 (Refugee)

1929869 (Refugee) [2023] AATA 4666 (7 December 2023)
DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER: 1929869

COUNTRY OF REFERENCE: India
MEMBER:Rosa Gagliardi
DATE:7 December 2023
PLACE OF DECISION: Australian Capital Territory
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 December 2023 at 3:07pm
CATCHWORDS
REFUGEE – protection visa – India – religion – Christian – political opinion – former Shiva Sen party member – police informer – attacks by Hindu activists – physical assault – fear of killing – attacks on family members – police corruption – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 10 October 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 11 October 2016. 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.
The applicant appeared before the Tribunal on 10 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malayalam (Indian) and English languages.
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.
In the applicant’s statement of claims received by the Department on 12 October 2016, the applicant stated that he had recorded on his mobile phone the murder of “[Mr A]” on [a] road at [Town 1], Kerala, India and that “It was due to this recording that the murders were identified and arrested by the police. Due to this, murders (sic) who were Hindus by religion is causing great threat to the life of mine. The murders are now released on bail by the court is threatening me with evil consequences and also death. They are also causing disturbance to the peaceful life of my relatives an also to my immovable properties. If I go back to native place – it is the great threat my life. Due to the influence of the murderers, I will be killed in a communal problem”. The applicant has provided the registration numbers for the crime and the relevant penal code, stating that the event occurred on [a day in] January 2016.
Asked in his application at Question 89 why had left his country, India, the applicant responded, “I have a great threat for my life, as i witnessed some some (sic) killing and injuring boys. They got arrested and now they are on bail and regularly threatening to kill me as they are on bail, out of 4 accused, one have recently committed suicide”.
Asked what he thought would happen to him if he returned to India, the applicant wrote in his application, “I have great fear for my life”. The applicant was also asked to provide details of harm he had experienced in his home country and the person or people responsible for such harm and why they had harmed him. The applicant responded, “One they are regularly threatening me to kill as I have reapotred (reported?) against them”.
The applicant was asked whether he had sought help within his country after the harm and he answered, “The accused are very influential and have contact with police”. The applicant was asked why he did not try to move to another part of the country and he wrote “No”. He did not give details as to why he did not attempt to relocate to another part of the country.
In his application the applicant stated that he thought he would be harmed or mistreated if he returned to India. He was asked to give details about the type of harm or mistreatment, he was likely to experience, and to set out the person/people who would be responsible for the harm or mistreatment, and why such persons would harm or mistreat him. The response was, “I have a great fear for my life on my return back to India”.
At Question 95 the applicant indicated that he did not think the authorities of India can and will protect him if he goes back. In response to the request for details about why the authorities could not, or would not protect him, he wrote, “No. The boys are still on bail and they can harm me on my return back to India. They have a great influence in the police”.
The Department in a letter to the applicant dated 23 July 2019, put credibility concerns to him and requested further information as follows:
·The applicant was questioned why the accused murderers would harm him given they are already being tried for murder.
·The applicant was invited to respond whether he has a copy of the mobile recording and whether the prosecutors have a copy.
·The applicant was invited to explain what harm the accused murderers have done to his relatives.
·The applicant was invited to explain what happened to his immovable properties.
·The applicant was invited to explain how he was threatened by the accused murderers.
·The applicant was also invited to provide evidence that the accused murderers are highly influential.
At the time of writing the Departmental decision on 10 October 2019 the applicant had not responded to the invitation.
At time of review the applicant has submitted:
·What is claimed to be a police report by the Inspector of Police [Officer A] (date stamp illegible):
[The applicant]…had given a written complaint to me on [date]—06-2016, mentioning that the below mentioned criminals and their henchmen tried to attack him and threatened to kill him. When I enquired the matter I found that it is genuine and reasonable.
On [the day in] January 2016 at about 5PM, [Mr A] was stabbed to death at [Town 1], Kerala, India by a group of [number] persons unlawfully with dishonest intention. At that time the complaint [the applicant] was travelling on a bike through that road, from his work place to home. He witnessed the murder and recorded the cruel activities of the accused person in his mobile phone. Meanwhile all the accused managed to go into hideouts. Later that video (recorded by [the applicant]) was widely circulated. It was due to that the murders (sic) were identified by the police and thereby the police registered a criminal case xxxx India Penal Code. Subsequently the murderours (sic) were arrested and produced before the court of Justice and later they were released on bail. The accused persons clearly understood that, it was none other than [the applicant] had recorded the video. Hence the muderers (sic) and their highly influential relatives threatened him and his family members.
The accused persons are Hindus by religion and [the applicant] (sic) is a Cheristian (sic) by religion that also intensifies the enemity (sic) [the applicant] faced many murder attempts from the accused persons and used to get threatening calls. After that he left his place.
But still the criminals who were released after being taken into custody, were highly aggressive and vindictive (to take revenge). At present the said [the applicant’s name] is not in India. Even though his family members and [the applicant] himself is in danger. If he comes back to India, his life will be in danger.
The police authorities had already took adequate measures to stop the violence of the accused persons. But the police officials have limitations in protecting his life. The authorities are trying their level best to settle the matter amicably.
But that ended in vein (sic). Now also his life is in danger if he comes back to his native place.
·Several other documents that are purportedly in Malayalam were submitted and while these contained some English words the Tribunal could not make out to whom what they related to and the Tribunal requested at hearing that the applicant make these available in a translated form.
The hearing – a summary
The applicant has a wife and [young] children in Kerala. Asked how they were surviving in India, the applicant stated that he supported them by working as [an occupation 1] in Australia. The children attend school. The applicant stated that he had also worked in [Country 1].
When asked the applicant confirmed he was a Christian. When asked what type of Christian, he replied it was the Latin Church, being the Catholic Church. The Tribunal put to the applicant country information which demonstrated that many Christians lived in Kerala and that there did not appear to be any animosity towards them there.[1] The applicant later confirmed that, but for the other troubles he had in India, he would not be targeted solely for being a Christian in India. The murderers were Hindu and [Mr A] was a Muslim and the applicant’s Christianity made him more of a target.
[1] Lal Matrimony, “Christian Communities in Kerala”, 23 July 2021, Christian Communities in Kerala (lalmatrimony.com) The article states that Christianity in Kerala is as old as Christianity. Christians account for 18%of the population. Most of the Christians in India reside in Kerala State. A lot of Christian communities exist in Kerala.
The applicant stated he was not safe in India because he had taken a video of a murder. The Tribunal requested whether he had a copy of the video given its centrality to his claims. The applicant stated that he had handed the original version to the police, and they used it for their case. When asked if he could provide a copy to the Tribunal of the original, the applicant stated it was being held by the courts under seal in India. He could not get a copy. The only copy he had was that online on You Tube which was based on his video and which the police had leaked.
Asked the name of the murdered person, the applicant stated he did not know; it happened at [location 1]. The Tribunal noted that in his statement he had stated that the murdered person was [Mr A]. The Tribunal noted that he had not recalled the name of the person attacked. The applicant responded that the information he had provided thus far was what he had gathered from the online news and the police files. The incident happened at [Town 1].
The Tribunal looked online to refer to the video on You Tube. The Tribunal found a video referring to a group of gangsters dragging [Mr A] from his bike and lynching him.[2] The applicant confirmed that the article was referring to the incident he claims he witnessed and videoed. The applicant claimed that there were [number] people who “did it.”.
[2] [Source deleted.]
The Tribunal attempted to gauge from the applicant what he had thought about when he pulled out his phone to video the youths being viciously attacked. He stated that he did not think of anything.
The Tribunal asked the applicant whether he had been called as a witness in the prosecution of the persons who had accosted the young men at [location 1]. The applicant responded that he handed over the video to the police inspector and told him he did not want to be called as a witness because he was scared. The Tribunal stated that if he had wished not to be involved, he simply might not have videoed the event at all. He answered that he had not given the matter any thought. That night he could not sleep and being a responsible citizen, he handed the recording to the police the next day.
The Tribunal asked the applicant whether he knew what had happened to one of the perpetrators. The applicant responded that he knew one had died. He did not know anything else; it was just what he had learnt from the news.[3]
[3] [Source deleted.]
Given the general nature of the evidence by the applicant concerning the historical events involved in the death of [Mr A], the Tribunal expressed its concerns that the applicant had since his arrival in Australia had a significant period to put together the skeleton of claims based on true events, even though they might not relate to him. Given the publicly available information regarding the death of [Mr A] and the lack of information that would connect the applicant to that death, the Tribunal had concerns that the applicant had taken a historical event to appropriate it for the purposes of his protection claims. The applicant stated that the incident only became news after he handed over the video to the police officers the next day.
The Tribunal noted that the applicant had not put his claims to the Department until October 2016, and that the applicant had had a lot of time to appropriate the claims.The applicant responded that it was his duty to the government as a citizen, but now he was paying the price.The applicant stated he had no reason to leave his family and be here by himself. He stated that “these people” tried to attack him and they even went to his house and for this reason he fled the country.
The applicant stated that he had some political involvement as well.The police were the ones who had released his details to “those people”.The applicant continued that in 2014 and 2015 he was involved in political activities, and he left the Shiva Sen party because it was only promoting religion and the applicant was unhappy.The applicant stated that this party was involved in the chaos situation in Mumbai. At the local level the leader was [name].The Tribunal asked the applicant to explain what he meant by the party was focussed on religion.The applicant responded that their actions were mostly against the Muslims and Christians.The Tribunal asked why the applicant would join a party that attacked Christians if he were indeed a Christian.
The applicant explained that initially the party had a reputation for doing benevolent services such as providing food to the needy and this had attracted him. The Tribunal observed that the applicant had not mentioned his political involvement at the time of application.
The Tribunal then encouraged the applicant to put himself back in time and at the place of the beating of the boys which he claims he videoed. He stated it was [a day in] January 2016, and he was running a [shop]. The Tribunal noted that the applicant had stated that he was [an occupation 1] by profession. The applicant responded that he did not own the shop; he was an employee there.
The applicant stated that at the time of the lynching he was on a motorbike, so he took off his helmet and started videoing the attack. Asked whether he was returning home at the time of the attack, the applicant responded, “Yes”.
The applicant stated that he was an ordinary human being and what he saw was real cruelty. He was at the back of the crowd, but he dared not go at the front. The Tribunal asked if the victims were young boys why wasn’t his instinct to help them rather than video the distressing scene. The applicant stated that the assailants had thick wood and pipes in their hands, and he would not be able to do anything. There were many others who did nothing. He stated that they were all fellow road users, and no one went to help the boys. He was close to where it happened and then he started to film it.

The Tribunal asked whether there was any publicly available information that would demonstrate that the applicant’s evidence by way of a video was critical to the murderers being on trial. The applicant responded “No”. He handed over the video to the police inspector and told him he did not wish to be called as a witness and did not want to get involved but the video was published. He believed that the police were the culprits who released the video. He had not anticipated that he would give it to the police, but that night he could not sleep, and the next morning handed it over. The Tribunal asked if there was no publicly available information that would link him to the video, why he was fearful. The applicant stated that when he handed the video over there were other police around who were known to the culprits. The culprits had political influence and after a crime of this nature they could come out on parole after three months. The Tribunal asked where the culprits were currently. The applicant responded that in March 2023 they came out on parole and his brother-in-law was attacked with a motorbike and his brother-in-law had fractures on his leg and hand and they told him that one day the applicant would return home and death would be waiting for him there.
The applicant stated that he had provided a police report. The Tribunal asked who had tried to attack him precisely. He responded he did not know who these people were, they were either the people on parole, their cousins or others, he did not know their identity. The Tribunal noted that in his statement the applicant declared that the murderers were released on bail and asked whether they were still on bail. The applicant responded, “Yes”. According to the applicant upon their first arrest the police detained them for [number] days and they would be granted bail thereafter. The Tribunal asked whether the matter of [Mr A] went to trial, and the applicant stated “Yes”. The Tribunal asked whether the perpetrators were convicted of murder, and he stated “Yes”. Asked about the terms of their imprisonment the applicant stated he did not know but they went to prison for years. They came out on parole every now and then. The applicant stated that with political influence it was easier for them to get in and out of parole and it was the times they came out on parole that they attacked him.
The applicant stated that he feared “them”. He was staying indoors. He lived on a kind of island and there was only one way he could go out of his house. They could see him and be easily noticed.
The Tribunal noted that usually when evidence is tendered to the police, they would have kept a record of what had been handed in and provided the applicant with a receipt. The Tribunal also suggested that if he feared for his life, he could have sent his video by post anonymously, but the applicant stated that would have taken time and the assailants would have escaped. He did not know how dangerous it was and would not have indulged in it otherwise.
The Tribunal again asked the applicant to explain how his involvement in the Shiva Sen political party was relevant to his claims. He responded that the extremists were all members of the party. The Tribunal again asked the applicant how his political membership of Shiva Sen related to his story of claimed persecution. The applicant stated that initially when he joined, he was attracted to prayer groups, but only later did he realise that they were indulging in gangsterism. It was more a Hindu movement. The Tribunal asked again that the applicant explain how his fears of persecution were related to this political party. The applicant stated that the murderers were all members of Shiva Sen. The Tribunal asked why he had not told the Department about this aspect of his claims. The applicant stated that the Department did not call him for an interview. He just received the refusal. He was waiting for an opportunity to tell his story. The Tribunal also noted that the Department had written to him asking numerous questions and asking him to provide more details about everything that had happened to him, but he had not responded. The applicant replied that he did not get such a letter. If he had he would have responded.
The Tribunal asked whether when he had been beaten, he had gone to a medical clinic to get his wounds treated. The applicant responded that he had. The Tribunal asked the applicant whether he could provide the clinical notes that might state what the injuries were and how they were sustained. The applicant stated that he doubted it, it was a small private practice, and they did not have computers then. He was not sure if he could obtain these.
The applicant stated that the police officer to whom he gave the video translated his police report (First Information Report). The applicant stated he also had his own report and would get it translated in English.
The Tribunal asked when he was assaulted whether he had reported the matter to the police. He stated he had. He had provided the report to the Tribunal, but it was in Malayalam. The Tribunal asked what action his brother-in-law might have taken in response to the motorbike incident and the applicant responded he had not done anything. He was afraid that if even if he lodged a report nothing would happen. The Tribunal asked the applicant whether the police helped him at all. He stated no. They came and made an inquiry after a report was lodged but nothing else happened. They (the gangsters) went to his house and broke a photo of Jesus he had at the front of the house. At that time his wife and children were alone at home in the night. They screamed for help and neighbours came and they escaped. According to the applicant the next morning the police got his wife to sign in the book and they left. That was the end of the matter. The Tribunal asked if there was a copy of the report his wife had made, and he responded no. The police just took some notes when they came to the house and his wife just signed it. The Tribunal asked whether his wife could get a copy of what she had signed, and he responded he was not sure because the previous officer was no longer there. New people were working there.
The Tribunal asked whether his family was safe in India. The applicant responded, no they were not safe, they had moved from his house and were staying with his wife’s father some 2 kms away from their own home. The brother-in-law who was attacked also lived there according to the applicant.
The Tribunal asked had anything else happened to his family members. He responded no, after the attack on his brother-in-law nothing happened.
The Tribunal attempted once more to gauge from the applicant how his involvement with Shiva Sen related to the murder of [Mr A]. The applicant stated that people were angry because he had left that party. Asked if Shiva Sen was also targeting him, the applicant replied yes. Shiva Sen was part of the BJP now. They knew he had joined the Congress Party. The Tribunal asked who would harm him for changing parties and how did it relate to the murder of [Mr A]. He stated he had worked for Shiva Sen. Because of the applicant handing over the video to the police, the assumption was made that he was taking revenge against Shiva Sen. Asked how, he responded they were saying so to the other members of the party. The Tribunal asked the applicant whether he feared harm from Shiva Sen and who told the applicant that he should be afraid of that party. He responded that the party he joined told him that, that is, the Indian National Congress Party had told him.
The Tribunal asked whether there was anyone else he feared. He stated no, it was only these people.
The Tribunal queried why the applicant could not go to a large city such as Delhi, for example, in India and start and new life there with his family. It was a big centre and the applicant had skills to support his family. He responded that he had tried to go to Goa and Chennai, but they were able to track him there. He obtained a new sim card, but they tracked him down in Chennai and Goa. When asked who tracked him down precisely, he stated it was the Shiva Sen people who were all over India. He used different numbers every time he rang his wife and perhaps his wife’s phone was being tracked.
The Tribunal confirmed that Shiva Sen, the persons who murdered [Mr A] and some police were working hand in hand to pursue the applicant because of the video. The applicant stated that he was the person who handed over the evidence. He was Christian and that is why they were targeting him as well. The Shiva Sen people were forcing him to wear sandalwood paste on his forehead and that is one of the reasons that he had to quit his membership with them. They were involved in gangsterism.
The Tribunal noted that the applicant had submitted a document/s that was not in English and that he needed to have that translated if the Tribunal were to rely on it. It also asked for medical reports relating to attacks against him. The applicant responded that people had carried him to the clinic. The Tribunal stated that copies of clinical reports would be useful and those of his brother-in-law who it is claimed attended hospital should also be submitted.
The Tribunal highlighted that if the applicant could provide any other evidence to show that there was a connection between him and a video which had led to a prosecution of the murderers of [Mr A] that he should provide that to the Tribunal. While he might not be able to provide the original, he might think of other ways to support his case – anything that would assist the Tribunal be satisfied that the applicant was owed protection ought to be provided to the Tribunal.
Evidence post hearing
After the hearing the applicant submitted a letter of complaint allegedly filed by the applicant before [Inspector A] in English, dated [in] June 2016 and unsigned by both [Inspector A] and the applicant. The document reads:
I am staying with my family at the above mentioned address. For the past few days, some people have been threatening to kill me by sending messages on my mobile phone and of my relatives. In addition, yesterday evening when I was standing to meet my friend at [a named location], [number] identifiable people came on bikes, stopped their bikes near me and came down with deadly weapons and tried to harm me. When I screamed, they saw people running and they left. These people can be identified by me. I suspect that they are the accused in the case of [Mr A variant] who was being beaten to death near [location 1] near [Town 1 location] on [the day in January 2016]. They were threatening to kill me and trying to harm me because I had recorded their conversation on my mobile. I am afraid that the above accused persons would kill me. I am afraid to step out of my house. Therefore, I request you to kindly investigate this complaint and take steps to protect my life and fulfil my grievance.
A document entitled First Information Report was also submitted in English stating “Before the Hon’ble Court of….”. (The court is not mentioned). It is purporting to be a report to the police, before Sub Inspector [named] on [a day in] February 2016. The complainant is given as “[Alias A]”, Age [age]. The presumed suspects are listed. The First Information contents are as follows:
Believing that [Mr A variant], a friend of the complainant, who had entered the house of the 1^st accused, destroyed the household goods and pelted stones is with the complainant with the intention to kill him, accused [numbered] together with 2 other known accused who can be identified with deadly weapons, on [the day in] January 2016 with the knowledge that the accused were members of the gang. [Mr A variant] who had come on a bike and the complainant was sitting behind him and waiting for [transport]. As the [access] was closed in front of the [Town 1 location] at 6 o’clock in the evening, the 1^st accused to asked [Mr A variant], “You (obscenity), how dare you to come into my house and pelt stones and destroy the household furniture?” When [Mr A variant] tried to start the bike, the [numbered] accused and 2 other accused, who could be identified, unjustly obstructed him and then the second accused said, “Don’t let them escape, beat and kill then”. The 1^st accused took the iron pipe which was hidden behind his hand and hit [Mr A variant] on the left side of his head and injured [Mr A variant]. The complainant fell with the bike. The [numbered] accused hit on the head and leg of the complainant again with a wooden club and went to fight back the accused and 2 known persons kicked [Mr A variant] who was lying unconscious on the floor and tried to kill him by picking up his foot and beating him and inflicting serious injuries on him. By doing so the accused committed the crime.
Action taken: since the above information reveals commission of offence(s) u/s as mentioned at Item 2. The case has been registered and investigation has been taken up.
A letter from the spouse of the applicant signed before a notary on 20 August 2017. In the document the applicant’s spouse refers to herself as the complainant and to the respondents as “Nearly 25 identifiable persons”. The letter is titled “Before the respected [local] Police SHO”. It reads in the main as follows:
…I am residing in the above address. My husband [the applicant] is not in station. He has witnessed a crime of murder and reported the same to the police as a result the persons involved in the murder and their accomplices attacked my husband. Since there exists threat towards life, my husband has taken refuge in another nation. Yesterday (20/8/2017) after 12.0 Clock in the night a gang of people gathered around my house and rummaged my husband. We sat inside the house in fear. Myself and my children were frightened at the incident. The gang of infidels beat and kicked the wooden windows and doors of the house. While doing so, they shouted that “the one who deposed against Shivsena” workers will not be alive even for a moment. They hurled stones and beat the picture of ‘Jesus Christ’ that was placed above the front door of our house. The holy picture fell down they kicked it with rage and destroyed it. Two “holy cross were installed near the picture and they broke the same and threw it away into darkness. Then the gang of infidels started to hurl stones towards the house. They made a fierce attack towards my house. All that time myself and children sat inside the house frightened. On hearing the noise the neighbours woke up and they got out of their houses. On seeing this the gang of infidels withdrew and the (sic) left the place on their vehicles. At the time of withdrawal they openly called out and declared that “we will come again and they wont let us live there”. There is great threat towards the life of myself and my children.
A casualty hospital record for a “[Brother-in-law A]” who it is claimed is the applicant’s brother-in-law in India, dated 18 March 2023, possibly referring to injuries to the right and left hand as well as to the right and left knee.
In addition, a picture of an injured person has been submitted demonstrating injuries to arm and knees.
After the hearing the applicant also submitted a letter from the Chief Medical Officer of [Hospital 1], dated 27 November 2023, stating the applicant had been brought to the hospital with a head and several other injuries to his body, in a serious condition.
The applicant also submitted a graphic video of a gang of youths beating a person to death.
FINDINGS AND REASONS
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The Tribunal is prepared to accept that the applicant is a Christian and that coming from Kerala this profile alone would not attract adverse persecution by the state or any other non-state actors. It is the applicant’s overlay claims which the Tribunal rejects, however, individually, cumulatively and in their entirety.
The Tribunal has a paucity of convincing information before it that would enable the Tribunal to be satisfied that the applicant meets the criteria for the grant of the protection visa. The information given at hearing to the Tribunal was general, non-specific and lacked critical information that would set his claims in context. For example, the applicant referred to his claimed pursuers as “them” but provided little by way of personal characteristics.
The Tribunal accepts it should take care not to place significant weight on lapses in recall, given the events occurred some 7 years ago now. Nonetheless, in the case of the applicant, his ability to point to detail which would lead the Tribunal to accept that he was a central figure in the prosecution relating to the murder of [Mr A] which then led to murderers, gangsters, Shiva Sen/Hindu extremists, and the BJP pursuing him and his family, is scarce and unpersuasive. The Tribunal has gone through the documentation submitted by the applicant after the hearing but continues to have serious concerns that the applicant was ever involved as a star witness relating to the murder of [Mr A] and rejects this pivotal claim.
The Tribunal accepts that a boy called [Mr A] was murdered in a brutal manner in [Town 1] near a [location 1] as the country information demonstrates.[4] The Tribunal made this abundantly clear to the applicant at hearing. The Tribunal is also prepared to accept that the applicant is a Christian. In terms of the other claims made by the applicant, the Tribunal rejects them entirely. Having witnessed a traumatic event the Tribunal can accept that an applicant in his/her account might engage in avoidance behaviour to prevent reliving such a shocking experience. In the case of the applicant, however, the Tribunal found that his narrative was disjointed and that it appeared his claims were multiplied at hearing to add greater weight to his account. The Tribunal here refers to the applicant’s previously undeclared fears of Shiva Sen Hindu extremists. This political element of his claims was vague, and the applicant only referred to Shiva Sen in general terms without identifying persons which did not convince the Tribunal the applicant had ever had membership of that political party or any other political party. The Tribunal also does not accept that the applicant was being pursued by the Shiva Sen party because he had left the party. The claims that the applicant was ever a member of Shiva Sen are unsubstantiated and the Tribunal rejects them and finds that the applicant was attempting at hearing to enhance his claims.
[4] [Source deleted.]

At hearing the Tribunal explained the criticality of the applicant showing that he was the one who took a video of a crime scene and that that video directly caused the prosecution of the perpetrators. The Tribunal has surveyed the country information about this event in [Town 1], the applicant’s home area, but has not been able to locate any information that would demonstrate that the applicant was the person who took the video which helped police condemn [Mr A’s] murderers, and that as a result the attackers then sought to wreak revenge on the applicant and his family members. Nor has the Tribunal found country information indicating that the attackers were associated with Shiva Sen as claimed by the applicant, and that therefore the applicant was fighting against several fronts, being the Shiva Sen political party and related Hindu extremists, the gangsters who had murdered [Mr A], the BJP which Shiva Sen had now joined, and corrupt police who did not acquiesce to his request not to identify him as the person who had taken the crucial video.
The Tribunal does not accept that the applicant ever took a video of this historical event. Had the applicant been the originator of the video the Tribunal considers that there would be some publicly available information to show that the applicant was the author of the original video and that it would have been attributed to him publicly, given the notoriety of the case. If corrupt police had leaked the video to damage the applicant and to expose him, the Tribunal can see no reason they would not also reveal the person who had handed it to the police station.
The Tribunal also does not accept that the applicant would have been the only one to take a video of the vicious assault. If the applicant’s instinct had been to video the distressing scene for the sake of it, the Tribunal sees no reason why other bystanders would not have done the same and there is no reason why the applicant’s video would have held more importance over others’ recorded testimony by phone in a prosecution.
From the applicant’s testimony he is arguing that he was identified as the person who took the critical video as evidence to prosecute [Mr A’s] murderers. The applicant claims that the gangsters, Shiva Sen and others came to know he was the producer of the video and that that is how the applicant’s troubles began. If this were the case, therefore, the Tribunal finds it perplexing that there is little legal criminal information to link the applicant to the prosecution of the case. The applicant has explained this significant omission by stating that he told the court he did not want to be named and identified as being the person who took the video. The Tribunal does not find this explanation convincing, as the applicant claims he had already been outed by the corrupt police as having taken the video.
Furthermore, had the applicant genuinely feared for his life and requested that prosecutors not ask him to be a witness, it would have been open to him to negotiate to give his evidence out of the public eye. The applicant is arguing that he was pivotal in the murderers’ prosecution yet has provided little persuasive evidence to show that he was dealing with the criminal courts in India and that he had asked not to be a witness. Indeed, for someone who claims he had been so instrumental in the arrests of [Mr A’s] murderers, the applicant seems to have taken little interest in the prosecutorial outcome. At hearing, for example, the applicant gave vague evidence about the murderers being in and out of bail due to their political influence which seems implausible. It also seems fanciful that the applicant could simply withdraw from the case, given that he had already been exposed by the police. The Tribunal therefore rejects that the applicant ever gave police a key video which was used in the trial of [Mr A’s] murderers and that his video was leaked by corrupt police.
The applicant has sent in a confronting and disturbing video portraying the brutal murder of a youth and the Tribunal is prepared to accept, without any identifiers, that it depicts the events involving the death of [Mr A]. Nonetheless, the Tribunal made clear to the applicant that it accepted from articles online that such a murder had occurred. It had little information however that linked the applicant directly to those historical events as the producer of a critical piece of evidence for the prosecution. The video adds nothing to the applicant’s claims as there is nothing to link the video to the applicant and could have been taken and posted online by anyone. Moreover, if the applicant is arguing that this is the original video he gave to police and that the court had released it for the purposes of the review, there is no such imprimatur of a court. It was also open to the applicant to seek from the court a statement to confirm his claims that the applicant had filmed the video but that they could not release it.
Given the applicant claims that there were many witnesses to the attack, the Tribunal would have expected that the applicant would have been able to provide realistic witnesses who could verify that the applicant had been at [location 1] at the time of the murder and had been the only one to take a video of the horrific scene and that consequently the applicant’s life was in danger. The lack of compelling evidence by other by-standers from his hometown that the applicant was involved at all in the dramatic events of [the day in] January 2016, also leads the Tribunal to reject that the applicant ever took a video of the murder of [Mr A] and the assault of another youth, or that his video was used to convict those involved.
The Tribunal notes that the applicant himself stated that he relied on what was online, and on the news to provide the details of his account. Given that the coverage of the matter was not particularly extensive, it explains why the applicant could not provide specific information to the Tribunal beyond the bare framework of the events of [the day in] January 2016 as reported by others. The Tribunal considers that had the applicant lived through such a traumatic and life changing event that he would be able to provide greater detail of what happened on [the day in] January 2016 and beyond. The Tribunal has questions about how and why it was obtained, for example, and the document appears to have missing information.
The applicant has submitted a statement (the First Information Report dated [the day in] January 2016) which the applicant claims was translated by the police officer who took his report. The Tribunal advised the applicant at hearing that he needed to have his documents officially translated for the Tribunal to be able to rely on them. Even if the Tribunal takes the document at face value the Tribunal has serious concerns about the provenance of the report and whether it reflects an independent third-party statement written by someone who can verify that the applicant was a central protagonist in the events that unfolded on
[the day in] January 2016, and which led to [Mr A’s] murder and the aftermath.
The Tribunal has had regard to the additional police report submitted in English after the hearing (the First Information Report dated [the day in] January 2016). There is a stamp by who it is claimed is a police officer. However, there is nothing to indicate which police station issued the report. The applicant is referred to as a complainant, but the Tribunal has concerns that the applicant may have provided the contents of the report to the officer for signature rather than it being a spontaneous report that the police officer provided because he/she was personally aware of the applicant’s claims. The Tribunal is particularly troubled, however, because the report while naming the suspects and accused, provides the name of the informant as “[Alias A], Age [age]” and not the applicant. The applicant has not advised the Tribunal that he has been known by a name other than [the applicant’s name], and the Tribunal has concerns that the document which simply states “Before the Hon’ble Court of…” without naming the court, has limited probative value linking the applicant to the events of [the day in] January 2016. The First Information contents also do not specifically name the applicant only providing the known details about the murder of [Mr A]. The crucial link between the applicant and the events of [the day in] January 2016 has therefore not been made out.
The Tribunal has also had regard to the document titled, “Before the Respected [Inspector A], dated [in] June 2016, but similarly has concerns as to it having probative value in assisting to make out the applicant’s claims. The document is counter signed by “[Officer A]” who is the police officer named in the First Instance Report. It refers to the applicant telling the [Inspector A] about messages he received on his phone and the mobiles of his relatives, by people threatening to kill him. It also relates that (without specifying where or when) [number] persons descended on him with deadly weapons to harm him.
The Tribunal notes that this document has no official quality about it. It appears simply to be a report prepared by the applicant to [an Inspector A]. There is no information to suggest, for example, that the applicant actually submitted such a report to the [Inspector A] and that it was ever logged as a complaint by the respective police station. It is typed on an A4 piece of paper and does not have features to demonstrate that the document was officially lodged, and the Tribunal has concerns that the document may have been produced retrospectively, rather than being a contemporaneous record of a complaint made by the applicant to his local or other police station. For these reasons the Tribunal places minimum weight on this document as probative evidence that the applicant ever videoed the scene involving the murder of [Mr A] and that his evidence was critical to obtaining a prosecution and that that is why the murderers, gangsters, members of Shiva Sen/Hindu extremists and the BJP are now after him.
The applicant’s wife’s document to “the respected [local] Police” suffers from the same deficiencies. It is a report the applicant claims has been written by his wife. Without verifiable evidence, the Tribunal is prepared to accept the report was indeed written by her as it appears to have been stamped by a notary in Kerala. The services of a notary can be obtained by simply paying a fee, however. The notary does not confirm the veracity of the details provided in the statement by the applicant’s wife. Furthermore, there is no evidence that this complaint was ever actually filed with the police or that it was registered. Essentially, there is no independent verification that the contents of this report have actually occurred. This is apart from the difficulties the Tribunal has with the fact that such a document could have been prepared at any time retrospectively. Again, the Tribunal places the barest of weight on this document.
The Tribunal has taken into account that the applicant has submitted a medical certificate from [Hospital 1] allegedly written by the Chief Medical Officer at the hospital. The report is dated 27 November 2023 and therefore was obtained retrospectively. It is difficult to be satisfied without actual clinical treating notes that the applicant was brought to the hospital with a head and several other injuries “in a serious condition”. It is unclear whether the doctor has written the report based on memory of what occurred some 7 years ago, which is implausible, or whether she/he has referred to clinical notes (which the Tribunal had asked the applicant to provide but did not) or indeed whether the medical officer has simply been prepared to write a report on the say so of the applicant. Given the Tribunal’s concerns, it is not convinced that this document alone demonstrates that the applicant was attacked by gangsters and others who were connected to the murderers of [Mr A] who were seeking revenge because the applicant had provided a copy of a video that was submitted for the purposes of the prosecution and the Tribunal places limited weight on this document.
The applicant has also submitted a photo of a bandaged man who it is claimed is the brother-in-law of the applicant’s wife who it is claimed was injured by those targeting the applicant. This photo has no identifying feature and without an identity card and other documentation showing that the person depicted is actually the applicant’s brother-in-law, the photo is limited in its ability to support the applicant’s claims that even his family members have been threatened and indeed harmed by gangsters, Shiva Sen members/Hindu extremists, and Shiva Sen members now part of the BJP. An accompanying hospital record has been submitted dated 18 March 2023 and the outpatient report appears to refer to “[Brother-in-law A]”. Given no identifying documentation in relation to the identity of [Brother-in-law A] has been submitted the Tribunal is not persuaded that the report refers to the applicant’s brother-in-law as claimed. In any event, the Tribunal cannot make out the provisional diagnosis or the treatment received by [Brother-in-law A]. As per the other documentation submitted in support of the applicant’s claims, the hospital report for who it is claimed is the applicant’s brother-in-law, is not persuasive evidence that the applicant had ever been involved in taking a video of events on [the day in] January 2016, in which a youth, [Mr A], was killed. None of the evidence submitted has directly linked the applicant to the events of that date.
The Tribunal therefore rejects all consequential claims arising out of the central claim that the applicant took a video handed to the police for the purpose of investigation, evidence and prosecution. On the contrary, the Tribunal finds that the applicant has appropriated a historical event to his narrative and that he was never associated with providing a key piece of evidence to the police or anyone else in relation to the murder of [Mr A].
The applicant claimed at hearing that his wife and children were now living two kilometres from their previous family residence. The Tribunal finds it implausible that moving 2 kilometres would have diminished the applicant’s wife’s fears for her family and that it would have guaranteed safety from the claimed gangsters and others, particularly as the Tribunal has not accepted that any such persons were after the applicant and his family or that they damaged a photo of Jesus or attacked the applicant’s wife’s brother.
The Tribunal does not accept that the applicant has a well-founded fear of persecution on return to India for any political or imputed political opinion or on account of his religion together with his political opinion, and finds that he has expanded the scope of his claims to include a political and religious overlay to his claims. The Tribunal rejects that the applicant’s family members and relatives were ever harmed by any state or non-state actors in relation to a video allegedly filmed by the applicant because the Tribunal does not accept that the applicant was ever the author of such a critical video.
The Tribunal is satisfied that there is not a real chance that the applicant on return to India will suffer serious harm as defined (but not limited to) under the Act in any way. The applicant has been in Australia for a not insignificant period and has managed to procure work here and he has also resided and worked in [Country 1]. Despite facing challenges relating to living in a new country and culture the applicant has remained resilient and the Tribunal can see no reason why on return to India the applicant would not be able to resume his life and participate in the Indian economy to ensure he and his family are able to subsist. This is because the Tribunal has found that the applicant does not have an adverse profile of any kind in India.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
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 also considered whether it has 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 real risk test imposes the same standard as the real chance test applicable to the assessment of a well-founded fear of persecution. The Tribunal having rejected the applicant’s claims, individually, cumulatively and in their totality, finds that it is not satisfied that there are substantial grounds for believing that there is a real risk he will suffer significant harm due to any adverse profile with any state or non-state actors in India and the Tribunal rejects that the applicant will be arbitrarily deprived of his life; or that the death penalty will be carried out on him; or that he will be subjected to cruel or inhuman treatment or punishment; or that he will be subjected to degrading treatment or punishment by non-state or state actors.
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 4666

7 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction