1929933 (Refugee)

[2022] AATA 1260

1929933 (Refugee) [2022] AATA 1260 (2 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1929933

COUNTRY OF REFERENCE:                   India

MEMBER:Amanda Paxton

DATE:2 March 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 02 March 2022 at 8:39am

CATCHWORDS

REFUGEE – protection visa – family land dispute – threats of physical harm – fear of killing – epilepsy – gender-based violence – equality for women – state protection – internal relocation – financial hardship – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2; r 1.12

CASES

BBK15 v MIBP (2016) 241 FCR 150
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
MZAAJ v MIBP [2015] FCA 478
Prasad v MIEA (1985) 6 FCR 155
SZSPT v MIBP [2014] FCA 1245

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 October 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. Included in the protection visa application are the first named applicant (the applicant), his wife (the second applicant) and their oldest daughter (the third applicant).

3. The applicants, who claim to be citizens of India, applied for the visas on 23 May 2018. The delegate refused to grant the visas on the basis that the delegate was not satisfied the applicants are persons in respect of whom Australia has protection obligations.

4. On 22 October 2019 the applicants validly applied for a review of the delegate’s decision to refuse their protection visas, attaching the delegate’s decision record and notification of the Department’s decision.

5. The applicants appeared before the Tribunal on 16 September 2021 to give evidence and present arguments in relation to their application. The Tribunal exercised its discretion to hold the hearing by MS Teams video as the hearing was held when COVID-19 pandemic restrictions were in place. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant.

6. The video was clear throughout the hearing and the applicants’ answers were responsive and generally appropriate to the Tribunal’s questions. The Tribunal was satisfied that the applicants were able to give evidence and present arguments to the Tribunal throughout the hearing. The applicants also indicated they were satisfied they were able to give evidence and present arguments.

7. The hearing was primarily conducted in English, with the occasional assistance of a Hindi interpreter, at the request of the Tribunal and applicants.

8. The applicants were represented at the hearing.

   CRITERIA FOR A PROTECTION VISA

9. 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.

10. 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.

11. 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).

12. 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.

13. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

14. For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.

15. If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).

16. 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.

17. Under 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. The term ‘population of the country generally’ refers to the commonly understood concept of the general population, such that there is no requirement that the risk be faced by all members or every citizen of a country’s population for s 36(2B)(c) to apply: BBK15 v MIBP (2016) 241 FCR 150 at [32]. The reasoning in BBK15 and other Federal Court judgments (SZSPT v MIBP [2014] FCA 1245; MZAAJ v MIBP [2015] FCA 478) indicates that s 36(2)(c) will apply where a real risk is faced by an individual applicant, but is the same as the risk faced by the general population. However, s 36(2B)(c) requires a decision-maker to determine whether the risk faced by an applicant is a risk faced by the population of the country generally, not to the population in a particular area of the country such as a particular city or province.

    Mandatory considerations

18. 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.

    Credibility

19. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[1]

    [1] MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.

    CLAIMS AND EVIDENCE

20. The issues in this case are whether any of the applicants has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J of the Act in India and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, there is a real risk that any of the applicants will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Nationality

21. The applicants claim to be nationals of India. The applicants have provided the Department with copies of the bio-pages of their Indian passports. These indicate that the applicant’s passport was issued [in] 2012 and will expire [in] 2022,[2] that the second applicant’s passport was issued [in] 2013 and will expire [in] 2023,[3] and that the third applicant’s passport was issued [in] 2014 and expired [in] 2019.[4] This and other documentary evidence, including the applicant child’s birth certificate,[5] the applicant’s grandfather’s death certificate,[6] family land records[7] and oral evidence, support this claim. On the available evidence, and in the absence of any contrary information, the Tribunal finds that the applicants are nationals of India. This is therefore the country of reference for the purpose of assessing their refugee claims, and the receiving country when assessing their eligibility for complementary protection.

    [2] [File number], Doc Id 6473970.

    [3] [File number], Doc Id 6473968.

    [4] [File number], Doc Id 6473969.

    [5] [File number], Doc Id 6473993.

    [6] [File number], Doc Id 6473985.

    [7] [File number], Doc Id 6473983.

    Member of the same family

22. The applicant has provided the birth certificate of the third applicant showing that the applicant is her father, and the second applicant is her mother, and that she was born on [date] in Melbourne, Australia.[8] Accordingly, the Tribunal finds the third applicant is a child of the first and second applicants. As a result, the Tribunal finds that she is a member of the same family unit as the applicant and second applicant pursuant to reg 1.12 of the Regulations and s 5(1) of the Act.

    [8] [File number], Doc Id 6473993.

    Written claims for protection

23. In his application for a protection visa, the applicant states his ethnicity as Indian and his religion as Hinduism. He states he is married, having married [in] November 2012.  The applicant declares his spouse and daughter are in Australia and are both included in his protection visa application.   The applicant declares he maintains contact with his brother in [Country 1] by telephone and declares no other personal contacts or other family in Australia.  He states in his application for a protection visa that he can speak, write and read English, Hindi and Punjabi.

24. The applicant’s written claims for protection are first put forward in his application for a protection visa and his subsequent undated statement to the Department.[9]  In summary, the applicant claims he left India because his father became involved in a land dispute with his brother (the applicant’s uncle) upon the death of his grandfather.  The dispute occurred when the applicant’s uncle wanted to acquire the applicant’s father’s share of inherited land in the village of [Village 1] in Punjab and threatened to forcibly occupy the land. 

    [9] [File number], Doc Id 6473971 (Application for a protection visa, Record of Responses) & 6473981 (subsequent statement of applicant).

25. In his application for a protection visa, the applicant makes the following claims:

    ·He experienced verbal and physical harm in India, where his life was threatened. 

    ·He did not try to seek help within India as initially matters were not life threatening but they are now out of control.

    ·He did not move to another part of India as he did not hold a valid visa.  He will not be able to relocate within India to an area where he will not be harmed because of ongoing serious threats to their lives arising from the aggressive attitude of his uncle. 

    ·He has experienced great hardships and mental stress, and fears for his life should he return to India.

26. In the applicant’s additional statement, he made the following claims:[10]

    ·He is subject to ongoing threats of serious harm and death, and fears that if he returns to India his life and that of his family will be in danger of physical and verbal harm.

    ·He may be ‘eliminated’ by his uncle in any part of India, including metropolitan cities, should he return. Due to technological advancements, he and his family would be very easy to find.

    ·Many youths have migrated overseas to save themselves from death threats. 

    ·His parents feel helpless to protect him. 

    ·The applicant is also prevented from returning to India and relocating to a metropolitan city by financial hardship. Due to his limited financial resources and a lack of buyers for properties, it would be impossible for him to resettle in another part of India, such as Mumbai or New Delhi, which are subject to high residential and living costs.[11] Should he settle in a very expensive metropolitan city, he could foresee his own death, caused by his uncle or from starvation.

    [10] [File number], Doc Id. 6473981.

    [11] [File number], Doc Id 6473981.

27. In the application for a protection visa, the second applicant makes her own protection claims in relation to her departure from India but provides little detail regarding those claims.  The second applicant says that she experienced harm in India, but she did not seek help within India after the harm.  She claims she attempted to move to another part of India seeking safety and fears that she will be harmed if she returns to India.  However, the second applicant states that if she returns to India, the authorities will protect her and that she is able to relocate within India.

28. It is recorded in the application for protection that the applicant’s daughter has claims to make, but no information about those claims is provided. At hearing, the applicant elaborated on these claims indicating that he referred to claims made on behalf of his daughter articulated at paragraph 30 below.  

29. In support of the protection visa application the following documents were provided by the applicant to the Department. 

    ·An English version copy of Jamabandi (land records document) for the year 2016 – 2017.[12] 

    ·Two untranslated foreign language documents.[13]

    ·English language death certificate for the applicant’s grandfather.[14]

    ·An unopenable document purporting to be a marriage certificate.[15]

    ·The third applicant’s birth certificate.[16]

    ·A letter confirming the second applicant’s Visa Medical Appointment and a receipt for the third applicant’s passport.[17]    

    [12] [File number], Doc Id. 6473983.

    [13] [File number], Doc Id.  6473984 & 6473986.

    [14] [File number], Doc Id. 6473985.

    [15] [File number], Doc Id. 6473994.

    [16] [File number], Doc Id. 6473993.

    [17] Ibid. 6473993.

30. In a pre-hearing submission to the Tribunal,[18] the applicant’s representative advises that the applicant has an additional child, born on [date], and details have been provided to the Department of Home Affairs. She is not an applicant in this review. It is further submitted that the applicant, in summary, states the following:

    [18] AAT1929933, Doc Id 8798328, 7 September 2021.

    ·     He and his wife have not been able to teach their children their native language and speak with them in English.

    ·     He has been the subject of direct threats by his uncle who has vowed to kill him.

    ·     The applicant has a well-founded fear of persecution if he returns to India as a result of his uncle having power within the government. The applicant faces a risk of harm from his uncle and his network if he returns to India because the corrupt authorities will have access to information about him upon arrival in India. New tracking systems have been put in place to track and monitor, with digital surveillance technologies contributing to the applicant’s fear of being a target and easily identified in India.

    ·     He will not be able to access effective police protection, and he is concerned for his safety because of his past experience with the police in India, in particular in relation to the attack on him by his uncle in 2012. He does not have any confidence that he would be afforded protection by the authorities if he returned to any part of India because of widespread corruption in India.

    ·     The applicant cannot approach police for registration/verification of identity for rental purposes because they will tell his uncle his location.

    ·     The land he will be inheriting was passed down from generation to generation and the sentimental value is priceless, and equally it is culturally significant. He cannot walk away from the land’s cultural and moral value. It is submitted that the applicant must regain ownership of his land for his livelihood and his children’s safety.

    ·     The applicant and his wife have not returned to India since 2012 because they fear harm in India.

    ·     In India they will be subject to gender inequality, including gang rape, gender based discrimination, the persistence of dowry traditions and the scourge of human trafficking. The applicant’s daughters will not be able to inherit the land because of discriminatory practices arising by reason of their race, as the Indian culture perpetuates traditional and cultural values that support the inequality of women.

    ·     The applicant cannot relocate to a bigger city because he has two daughters and a wife. Attacks on women and children predominate in the major cities, whereby the applicant will not be able to protect his family.

    ·     India’s economy has been impacted by the COVID-19 pandemic, and there is a high risk from COVID-19.

    ·     The applicant’s two daughters are adapted to Australian living conditions and it is in their best interest to remain. The applicant’s eldest daughter was born in Australia and does not speak the native language, and they are more likely to be targeted by predators as they are more vulnerable to being deceived by strangers as a result of their safe upbringing in Australia.

1. On 16 September 2021, the applicant provided a Statutory Declaration stating that he suffers from epilepsy and supplying information about his medication. Also provided is an open letter dated 2019 (the month and date are not legible), from [Doctor A], Consultant Neurologist, [Hospital 1], Ludhiana, India, stating that the applicant is under his treatment and follow-up with a diagnosis of epilepsy, and requesting that a stock of medicines for one year be sent to the applicant by post.[19]

   [19] AAT1929933, Doc Id 8850142, 17 September 2021.

   Relevant country information

2. The Tribunal has considered the country information provided by the DFAT Country Information Report for India, dated 10 December 2020, which reports the following:[20]

   [20] DFAT Country Information Report India, 10 December 2020.

   Land Issues

   2.50 As a predominantly agrarian economy where land continues to be a primary source of direct and indirect livelihoods and income for 70 per cent of the population, land acquisition remains a politically and socially contentious issue and has been a challenge for successive governments.

   …

   Security Situation

   2.65 Crime rates across India vary. Over 5 million cognisable crimes (crimes allowing arrest without a warrant) were reported in 2018, according to government statistics. This represented a rise of 1.3 per cent over the previous year. Crime rates are significantly higher in large cities. Most Indians live their lives with a relatively moderate risk of criminal violence, although violence against women and LGBTI individuals occurs at higher incidences (see Women and Sexual Orientation and Gender Identity).

   …

   Women

   3.113 Traditional social practices and the low status of women in many parts of India can result in domestic and gender-based violence. Child marriage and sati (widowed women committing suicide on their husband’s funeral pyre) are illegal, but both practices continue in rural areas. The tradition of a bride’s family paying a dowry – prohibited under the Dowry Prohibition Act (DPA) (1961) – can lead to female infanticide, sex-selective abortions and dowry deaths (women murdered or driven to suicide in the attempt to extort a higher dowry). Available data likely understates the true extent of violence against women dueto underreporting of cases.

   3.114 According to the World Economic Forum (WEF), the condition of women in large fringes of India’s society is ‘precarious’. India ranked 112th out of 153 countries on the WEF’s Global Gender Gap Report 2020 (down four places since 2018). The report states the economic gender gap ‘runs particularly deep’ in India and has widened significantly since 2006. India is the only country of the 153 studied where the economic gender gap exceeds the political gender gap. WEF reports only one-quarter of women, compared with 82 per cent of men, engage actively in the labour market, while female estimated earned income is one-fifth that of males. While India has had a female prime minister for 15 of the past 55 years, female political representation is low: women make up around 10 per cent of the cabinet and the broader ministry.

   3.115 The constitution provides a number of guarantees in relation to women’s rights, including equality of treatment between men and women (Article 14); prohibiting difference in treatment between men and women on the grounds of race, religion, caste, sex or place of birth (Article 14); and the right to live with human dignity (Article 21). India is a party to most of the core international human rights conventions (see Human Rights Framework), including the Convention on the Elimination of all forms of Discrimination against Women (CEDAW. India’s Supreme Court guidelines on sexual harassment in the workplace draw on CEDAW, and legislation relating to violence against women is contained within the Indian Penal Code (IPC), civil laws and special laws. These include the Dowry Prohibition Act (DPA) (1961), the Indecent Representation of Women (Prohibition) Act (1986) and the Commission of Sati (Prevention) Act (1987).

   3.128 Inequality in inheritance also negatively impacts women in India. There is a lack of uniformity in inheritance laws, with various religious communities governed by personal laws and different states’ scheduled tribes by their customary laws. Many such laws discriminate against women in relation to property or agricultural rights. The basic framework for inheritance differs on the basis of religion rather than the nature of assets. Religions have their own inheritance laws – inheritance rights of other groups are governed by the Indian Succession Act, 1925.

   3.129 Media reports strong patriarchal traditions have translated into a fear of violence that prevents women from claiming their inheritance rights. Other factors include a low awareness among women of their rights. In several northern and western states, women have reportedly given up their claims over ancestral property due to the custom of ‘haq tyag’ or voluntary renunciation. Although there is no official data on inheritance claims made by women in India, the latest census data (2011) notes only 13 per cent of farmland is owned by women.

   3.130 Amendments in 2005 to the Hindu Succession Act, which governs matters of inheritance among Hindus, made women’s inheritance rights equal to those of men. Several states, including Haryana, have lowered registration charges and taxes on properties that are in women’s names. Global land rights advocacy group, Landesa, states this has had minimal impact on women’s property ownership rates. While rising property prices could push more women to claim their inheritance, they still had little control over the property they inherited.

   3.131 DFAT assesses women across India generally face a low risk of official discrimination, in that there are constitutional and legal protections for women. However, women have reported weak property rights, discriminatory regulations and infrastructure constraints to equal business participation, and barriers to reporting crimes.

   3.132 Although, in general, urban women from higher class and caste backgrounds tend to have better access to legal protections, these women may still be pressured by family to hide family violence for fear of maligning their family’s honour and reputation. Other factors that may affect the situation for a woman experiencing violence include the state in which she lives, her class, caste, ethnicity, religion, education and age. Access to services is typically better in urban areas than in rural regions. In addition to the geographic advantages of urban-based communities, education and the standard of literacy has a significant impact on access to services.

   3.133 DFAT assesses women across society, but particularly in rural areas and from lower castes, face a moderate risk of societal discrimination and violence. This can include sexual, domestic and dowry-related violence. The COVID-19 pandemic has highlighted the risk of domestic and family violence towards women in India. Longstanding traditional values and gender roles can restrict the participation of women in the workforce and community, and impact their inheritance rights and access to health and mental health care.

   …

   Police

   5.4 India’s constitution devolves responsibilities for police and public order to the states. Each state and union territory maintains its own police force, and two-thirds of this cohort hold junior ranks. The national corps within the Indian Police Service (IPS) are selected by competitive exams, hold senior ranking positions and enjoy other benefits, including housing and transport. According to a 2018 survey across 22 states, the Centre for the Study of Developing Societies found less than 25 per cent of Indians trust the police highly (compared to 54 per cent for the army). The World Justice Project’s 2020 Rule of Law Index ranked India 114 out of 128 countries with respect to order and security (see also Corruption). This measure considered issues such as crime, civil conflict and use of violence to redress personal grievances. Centralised Indian Police Service

   5.5 Article 312 of the constitution establishes a centralised IPS. The IPS is organised into state cadres to provide senior-level leadership to state police forces and to centralised forces. The MHA is responsible for IPS officers and policy decisions, including structure, training, allocation, confirmation, pay, allowances and disciplinary matters. State and central governments review IPS budget allocations every five years. As at March 2019, there were 4,982 IPS officers spread across 26 state cadres, with the states of Uttar Pradesh, West Bengal and Maharashtra having the most IPS officers, and Uttarakhand, Tripura and Sikkim having the least. The MHA is also responsible for a range central police functions (see State Protection).

   State Police Services

   5.6 According to The Economist, India’s 1.9 million police officers ‘do not enjoy a good reputation’.

   However, local sources report police effectiveness is hampered by lack of resourcing and infrastructure. Police budgets, on average, account for 3-5 per cent of state expenditure. The Status of Policing in India Report 2019 (which used official data drawn from the NCRB and the Bureau of Police Research and Development to assess police capacity and adequacy) found inadequate infrastructure (physical, technological, human), resourcing and training compromised police operations. According to the report, approximately 240 police stations across India have no access to vehicles; 214 have no access to telephones; 70 have no access to wireless connections; and 24 have no access to either telephone or wireless connections. On average, police stations in India have six computers per station, but states like Assam and Bihar have an average of less than one computer per station.

   5.7 Lack of ‘boots on the ground’ is another key capacity problem. Police in India reportedly work at 77 per cent of their sanctioned personnel capacity. This equates to around 1.2 ordinary police officers per 1,000 people, about half the level recommended by the UN. Long working days and unpaid overtime are common complaints.

   5.8 Representation of SCs, STs, OBCs and women in the police forces is poor, with large vacancies in these reserved positions. SCs, STs, OBCs and women are less likely to be recruited/posted at officer-level ranks than are general police personnel. The India Justice Report 2019 found women account for 7 per cent of police personnel.

   5.9 To safeguard police operational autonomy from political interference, the Supreme Court directed states to introduce legal amendments to ensure police officers be guaranteed a minimum tenure of two years to function efficiently. However, in practice, over a quarter of police reportedly consider pressure from politicians is the biggest hindrance in crime investigation. Undermining safeguards, premature transfers of personnel are higher during election years, with the states of Uttar Pradesh and Haryana having the highest transfer rates. Premature transfers are also a common consequence of non-compliance with political pressure. The Economist reports lack of ‘man-power’ and ‘meddling politicians’, were in the top three problems facing police officers in India.

   …

   5.39 DFAT is not aware of any evidence of mistreatment of returnees, including failed asylum seekers, by Indian authorities. India does not have a centralised registration system in place to enable the police to check the whereabouts of inhabitants in their own state, let alone in any of the other states or union territories. The Department of Home Affairs is required to notify Indian authorities prior to the arrival of escorted removals from Australia but does not track returnees after their arrival in India. Home Affairs does not routinely notify Indian authorities of unescorted returns and removals. UK Home Office reporting notes tracking and surveillance systems appear limited.

   FINDINGS AND REASONS

3. On the basis of the documentary evidence before it and the applicants’ consistent evidence to the Department and at the Tribunal hearing, the Tribunal is satisfied the personal details provided by the applicants are credible. The Tribunal accepts the applicant was born on [date] in [Village 1], Punjab, India and acquired Indian citizenship at birth.[21] The Tribunal accepts the second applicant was born on [date] in Jalandhar, Punjab, India.

   [21] [File number], Department file document ID 6473971 – Protection Visa Application.

4. On the same basis, the Tribunal accepts the applicant was born and lived in what he described as a small, peaceful village near Amritsar and that his parents still live there in the same family house. The Tribunal accepts the applicant’s evidence that he is very close to his father, who is now [age], and he is in touch with his parents frequently, usually daily, and he misses them a lot. The Tribunal accepts the applicant’s oral evidence that his parents are retired [occupation 1s] and that they now live on the pension.

5. The Tribunal accepts the applicant’s oral evidence that he graduated from college with a [qualification] in about 2006, and then undertook some [vocation 1] courses. The Tribunal accepts the applicant’s evidence at hearing that he did not work after he finished study and first arrived in Australia in 2008 at the age of [age] on a Student visa to study [Subject 1].

6. On the documentary evidence before it and the applicants’ consistent evidence, the Tribunal accepts the applicant returned to India in November 2012 for five weeks to marry the second applicant in an arranged marriage. The wedding was held in his wife’s family home of Jalandhar, about [distance] away from his own home. The Tribunal accepts the applicant’s oral evidence that he returned to Melbourne in December 2012 on a Student visa due to expire in 2014 but he did not study and is not sure what study he was enrolled in. The Tribunal accepts the applicants have not returned to India since.

7. The applicant told the Tribunal he was economically dependent on his parents for a year and a half after his first arrival in Australia, and that after that time he worked in a range of casual jobs, in [occupation 2] and delivery, before starting a full-time job as [an occupation 2] in the [specified] sector in 2010.

8. On the basis of the consistent evidence before it, the Tribunal accepts the second applicant was born in Jalandhar and her parents, [and specified family members], live there still. On the same basis, the Tribunal accepts the second applicant completed [specified courses] before working in a [vocation 1] job. She stated she is in touch with her family frequently by video call. She stated she came to Australia as a dependent spouse on the applicant’s Student visa in August 2013 and that she became pregnant not long after her arrival in Australia and started working in [a named sector] when the baby was about [age] years old.  Her daughter, the third applicant, is now in [Grade] at school, and they also have [an age] baby (who attended the hearing).  

   ASSESSMENT OF CLAIMS

   Land dispute

9. On the basis of the applicant’s consistent evidence across his protection visa application, submissions and the Tribunal hearing, the Tribunal accepts that the applicant’s father and his uncle, his father’s brother, have been involved in an inheritance dispute over land. According to the applicant this dispute commenced in the years leading up to the death of the applicant’s grandfather in 2009 and has continued since that time. On the consistent evidence of the applicant at hearing, the Tribunal accepts the applicant’s uncle desires to own all the family land in the village of [Village 1], Punjab. The Tribunal accepts his grandfather’s [specified relatives] agreed to sign over their inherited land to his uncle, and that his uncle wanted his father to do the same, but his father has not agreed to do this. On the evidence of the Jamabandi[22] provided to the Tribunal by the applicant, the Tribunal accepts the applicant’s father has officially kept, and is the lawful owner of, his share of the land, about [size]. The Tribunal accepts the applicant’s oral evidence that his father leases the land to someone else.  

   [22] [File number], Doc Id. 6473983.

10. The Tribunal found it difficult to obtain clear or specific information from the applicant about the effects of this “issue with land” but he said his uncle, who he described as a drunk, was always threatening. He explained that his uncle and his own family live under the same roof; their homes are separated by a partition. The applicant said his father’s relationship with his uncle is not good because his uncle is often drunk and screaming. However, according to the applicant it is not possible for his uncle to obtain the applicant’s family land from his parents because the applicant and his parents are unified in their resistance. The applicant used the Hindi expression one plus one makes 11 (meaning unity is strength).  

11. The applicant stated that a number of times between 2005 and 2007, when the applicant came home from study, his uncle was drinking, and he threatened to kill the applicant. When prompted to provide more detail about this behaviour, the applicant was vague and limited in response. He stated that his uncle said he planned to lead the applicant into bad habits such as drinking, smoking and taking drugs to make it easier for the uncle to take the land. The Tribunal accepts that when drunk, his uncle’s conduct may have appeared threatening to the family and the applicant. However, the Tribunal has considered the nature of the threats described by the applicant and regards them as vague and lacking in substance given the outcome would depend on the applicant’s own agency and choice. While the Tribunal acknowledges that living in close proximity to his uncle who, when drunk, may have appeared threatening, was uncomfortable for the applicant and his family, the Tribunal does not consider that the applicant’s evidence indicates he was subject to ongoing threats of serious harm and death, or direct threats by his uncle who has vowed to kill him, or physical and verbal harm, from his uncle on the basis of this conduct.

12. The Tribunal has also considered the applicant’s statement at hearing that his father encouraged him to study abroad because there was little employment in India. On this basis, the Tribunal is satisfied that the applicant did not leave India in 2008 because he feared his uncle’s conduct when drunk, or at any other time. The Tribunal finds the applicant’s uncle did not present a risk of harm to the applicant before his departure from India in 2008.

13. In considering whether the applicant has a real chance of serious harm or a real risk of significant harm on return to India from his uncle as the subject of direct threats by his uncle who has vowed to kill him because he wished to obtain the applicant’s family land, the Tribunal takes into account the applicant’s written claim that since his return to India in 2012 his risk of harm from his uncle has escalated. As discussed with the applicant at hearing, the applicant has provided significantly inconsistent evidence in respect of his claims across his protection visa application and statements, leading the Tribunal to doubt the credibility of his evidence. In this regard, the Tribunal has considered the following.

14. In respect of the claimed incident of physical harm in 2012, the applicant stated in his application for a protection visa that he experienced verbal and physical harm in India, where his life was threatened. In the accompanying statement, he declared that his uncle threatened him and hit the applicant with an iron rod.  In oral evidence at hearing, the applicant stated his uncle “tried to hit him”. When the Tribunal asked the applicant to provide greater detail, he was hesitant and lacking in spontaneity. After prompting, he offered that he was “injured a little, but not much, just a bit.”  His evidence lacked the specificity the Tribunal would expect from someone who had been hit with an iron rod. The Tribunal formed the view that the nature of this incident had been embellished in the applicant’s written statement. This led the Tribunal to hold serious doubts about the applicant’s claim to have been the subject of ongoing threats of serious harm and death from his uncle in 2012.

1. In his protection visa application, the applicant claimed that he did not try to seek help in India as matters were not life threatening. In his written statement, the applicant states he reported the incident of 2012 to police, but it was no use, because respectable persons of the village tried to interfere to resolve the differences but could not succeed. However, the applicant gave oral evidence to the Tribunal that he did not report this incident to police. He told the Tribunal that neither he nor his family have ever approached the police about their uncle’s conduct. He said they have never tested whether they would get action from the police, so he has no evidence of police response, but he is not sure if they would assist. The significant inconsistencies across the applicant’s evidence in relation to action taken in response to the claimed incident in 2012 leads the Tribunal to doubt the credibility of the applicant’s claims to have been harmed by his uncle in 2012. For this reason, the Tribunal does not accept the applicant was assaulted by his uncle for any reason. The Tribunal does not accept the applicant was or is subject to ongoing threats of serious harm and death from his uncle who has vowed to kill him.

2. For the same reasons, the Tribunal does not accept the written claim that in 2012 the applicant and his family reported an incident of assault to police who were not able to assist. The Tribunal finds that neither the applicant nor his parents have ever sought police protection from the uncle’s violence.  On the evidence before it, the Tribunal is satisfied police have never denied the applicant protection.

3. The applicant stated that his uncle has slapped his parents when he has been drunk. The applicant could not answer why this occurred and was limited in response to questions about these claimed incidents, but stated his parents continue to live under the same roof as his uncle.  He told the Tribunal they have not sought police assistance at these times because they were scared that they would not be supported because his uncle is politically connected. Regarding this claim, the Tribunal has also considered the written claim that the applicant’s uncle has strong political connections, and he has influence over the police and authorities because he is politically connected. When the Tribunal explored this claim at hearing, the applicant repeated that his uncle is politically connected, but he could not provide any information or detail about his uncle’s political links. He stated his uncle has no political allegiance or position either locally or nationally. The Tribunal considered the applicant’s limited evidence that his uncle has political connections to be wholly unconvincing. The Tribunal would expect that if the applicant’s uncle had the political connections claimed, the applicant would be able to provide more detailed information about these connections, e.g. specifically who were these people and the political parties they represented. He could not.

4. The applicant said he did not know the nature of his uncle’s political links, other than to say his uncle has business in [sector 1] so he has broad contacts. He could not provide the Tribunal with more information about the nature of his uncle’s connection through his business to people of influence but said that he knew his uncle had good relations with local and district level politicians and police because sometimes they came to his place. The Tribunal considers the applicant’s evidence about his uncle’s business connections in [sector 1] to be vague and limited. The Tribunal would expect that if his uncle had influential connections through his business, the applicant could provide more detailed information such as their link to his business and how these links had been used to influence the conduct of authorities of police, but he did not.

5. On the basis of the vague and limited evidence of the applicant, the Tribunal holds serious doubts about the credibility of the applicant’s claim that his uncle has any political, business or other connections providing him with the capacity to influence the police or any other authority, such that he would be denied protection from his uncle if required. The Tribunal does not accept the applicant’s uncle has any political influence or power in political government.

6. The Tribunal accepts the possibility that the applicant’s uncle may have a good relationship with local police and officials in the village, but according to the applicant, the land dispute has been running since before 2009 and the Tribunal would expect that the applicant would have more information to establish that the State would deny the applicant or his family protection, if this were the case. This raises serious doubts for the Tribunal that the applicant’s uncle has any capacity to influence the police or any other authority, for any reason such that the applicant would be denied protection from his uncle if required.  The Tribunal is satisfied the applicant’s uncle is not connected in any way such that protective measures locally or across India are not available to the applicants. The Tribunal does not accept the applicant’s uncle has any political or other connection such that he could corruptly influence police.

7. In considering the applicant’s claim that he and his parents would be denied protection because of his uncle’s connections, whether political, business or social, the Tribunal has also taken account of DFAT country information set out above and discussed with the applicant, which, in the Tribunal’s assessment, indicates that while India’s police force has inadequacies, including an element of corruption and under-resourcing, it is a functioning police force. The Tribunal is satisfied that DFAT information indicates that in the case of the applicant, who as accepted is from an established landed family who is sufficiently well resourced to educate their son and support him for a long period abroad, the state would provide the applicant protection. Noting the Tribunal’s finding above that the applicant’s uncle has no political or other influence over police or authorities in India, the Tribunal would expect the applicant and his parents to seek protection if they held concerns for their safety, and their failure to do so raises serious doubts for the Tribunal that the applicant or his parents face harm from his uncle to obtain the land.

8. The applicant submitted that he cannot approach police for registration/verification of identity for rental purposes because they will tell his uncle his location. As above, the Tribunal does not accept the applicant is the subject of ongoing threats of harm/death or that he will use connection and influence with police to locate and harm the applicant. Accordingly, the Tribunal does not accept the applicant cannot approach police for documentation for rental purposes. The Tribunal has also considered the applicant’s claim that new tracking systems have been put in place to track and monitor, with digital surveillance technologies contributing to the applicant’s fear of being a target and easily identified in India. As above, the Tribunal does not accept the applicant is the subject of ongoing threats of harm/death or that his uncle will use connections to locate and harm the applicant. It follows that the Tribunal does not accept the applicant is at risk of harm through use of new tracking systems and digital surveillance technologies.

9. In his protection visa application, the applicant stated that matters are now out of control, and in his most recent submission, it is claimed that the dispute will have a fatal outcome. The Tribunal has taken account of the oral evidence of the applicant that nine years after the claimed incident of assault against him, his father continues to retain possession of his land, which he benefits from by leasing to someone, and to live in economic security side by side under the same roof as his uncle. The applicant’s representative submitted that the applicant’s father remains there, enduring threats of harm from his brother because the land has significant cultural and sentimental value, and because of this he is reluctant to give up the land. It is argued that the applicant cannot let go of the cultural value of the land and that if he returned to India the dispute would be ongoing. In this respect, the Tribunal considers that the applicant’s uncle has now had over 10 years to obtain the land from his aging brother through threat or other means, but he has not. The Tribunal holds the view that had the applicant’s uncle intended to forcibly take his father’s land, he would have taken action in this period to do so. The Tribunal further finds that there is no evidence that the land dispute between the applicant’s uncle and the applicant’s family is now out of control or that it will be ongoing or escalate if the applicant returns to India. The Tribunal considers this claim to be purely speculative. The Tribunal does not accept that the land dispute is out of control, that it will escalate on the applicant’s return to India or have a fatal outcome.

10. The Tribunal has considered the applicant’s claim in the pre-hearing submission that he cannot walk away from the land’s cultural and moral value, which has priceless sentimental worth. It is submitted that the applicant must regain ownership of his land for his livelihood and his children’s safety. At hearing, the applicant stated that if he returns to India, he will not consider doing anything other than getting the land back, because he must have it for cultural reasons. He stated that this will restart the problem, but he conceded that his uncle was not going to kill them. The Tribunal notes first that the applicant does not need to “regain” land, as it is owned by his father, and the applicant gave evidence that his father has no intention of relinquishing the land. On this basis, the Tribunal considers this claim to be inaccurate and embellished. The Tribunal does not accept that the applicant’s family has lost the land or that there is any evidence before the Tribunal that this land will not be passed on to him according to inheritance laws in the future, regardless of his uncle’s wishes (in the event his uncle is alive at that time). The Tribunal accepts the applicant’s father and the applicant have attachment to the land, and that it has significant sentimental value to the applicant’s family, but the fact that they remain there and are prepared to tolerate the applicant’s uncle’s behaviour rather than decide to unify the land holding, indicates to the Tribunal that the risk of harm to the applicant or any of the applicant’s family from the uncle is remote.

11. It is submitted that the applicant cannot rely on India’s judicial system to take ownership of the land. In this respect the Tribunal notes that documents provided by the applicant indicate that the applicant’s father is the owner and cultivator under law. The Tribunal is satisfied the land is lawfully documented as the applicant’s father’s property currently in the ownership of the applicant’s father, and that the applicant stands to inherit it. There is no evidence before the Tribunal that possession of the land is disputed in a legal sense or that judicial intervention is now or will be required for any reason. Nor is there any information to indicate that the applicant will not be the inheritor of this land. To suggest that the judicial system will not support the applicant’s parents or the applicant in future is purely speculative. In addition, as discussed above, the Tribunal finds the applicant’s uncle has no political or other connections such as to influence the judicial system to interfere with the ownership of this land.

12. At hearing, the applicant told the Tribunal that his uncle would find the applicants anywhere in India through their social contacts, because the applicant and his wife would continue to interact with their friends by social media and his uncle will find out about them. He said they are not able to stop using social media just to protect their security because they live in a social culture. He stated that he does fear his uncle but not enough to limit social media contact. The Tribunal considered the applicant’s insistence on maintaining his social media contact regardless of his claimed fear of harm from his uncle who could identify his whereabouts through social media, was a strong indication that the applicant does not face a risk of serious or significant harm from his uncle because the Tribunal considers that the applicant and his wife could maintain social ties through other media such as direct contact with family and friends if they feared harm. This raised further serious doubts for the Tribunal about the credibility of the applicant’s claim to fear serious or significant harm from his uncle on return to India.

13. Having considered the totality of the applicant’s evidence in respect of his claimed fear of harm from his uncle arising from a dispute over land, and relevant independent country information, the Tribunal is not satisfied that the applicant’s claims are credible. The Tribunal has accepted the applicant’s evidence that his uncle drinks and is threatening when drunk and acknowledges that living in close proximity to someone who is drunk would not be easy and tensions may arise. However, the Tribunal is not satisfied there is a credible objective basis to support the claim that the applicant faces a real chance of serious harm or a real risk of significant harm from his uncle. The Tribunal has considered the applicant’s claim that he has experienced great hardship and mental stress, and fears for his life should he return to India. The Tribunal acknowledges that the applicant may have experienced difficulties in life associated with his health, noting the discussion below concerning the management of epilepsy. However, the applicant has raised no evidence in relation to his mental health. The Tribunal also takes into account that according to the testimony of the applicant, he successfully undertook study and lived away from home at college, and from his account had the strong support of his parents, particularly his father. On the basis of the applicant’s personal history, the Tribunal does not accept that any hardships or mental stress experienced by the applicant arose from involvement in his father’s land dispute with his uncle. The Tribunal does not accept the applicants have not returned to India since 2012 because they fear harm from his uncle.    

14. The Tribunal acknowledges country information provided to the Tribunal by the applicant indicates that many violent crimes have their roots in property disputes.[23] The Tribunal has also taken into account the applicant’s claim that many youths have migrated overseas to save themselves from death threats. However, as discussed above, in the applicant’s case, the Tribunal is not satisfied that the evidence before it supports a finding that the applicant faces a real chance of serious harm or a real risk of significant harm arising from a dispute with his uncle about land, and the Tribunal does not consider these generalised statements are relevant in this case. 

    [23] >

    As above, the Tribunal does not accept the applicant was the subject of harm before his departure from India in 2008 or from his uncle on his return to India in 2012. The Tribunal does not accept there is any credible evidence that the applicant’s uncle will attempt to forcibly occupy the applicant’s family land in the future. The Tribunal does not accept the applicant’s life and that of his family will be in danger and that he will be subjected to physical and verbal harm from his uncle. The Tribunal does not accept the applicant’s uncle has political or any other influence over police or that in the event the applicants need protection for any reason the police will not provide it.  Accordingly, the Tribunal does not accept the claim that his parents feel helpless to protect him from his uncle, or that the applicant did not move to another part of India as he did not hold a valid visa. The Tribunal does not accept the applicant has a real chance of serious harm from his uncle arising from dispute over land if he returned to India now or in the foreseeable future. The Tribunal finds the applicants do not have a well-founded fear of persecution for this reason. The Tribunal does not accept the applicant has a real risk of significant harm from his uncle on return to India.

15. In his application for protection and subsequent statements and submissions, the applicant claims he and his family face a serious threat to their lives from his uncle anywhere in India. The Tribunal has found above that the applicants do not face a real chance of serious harm or a real risk of serious harm from the applicant’s uncle, and on that basis the Tribunal finds that his uncle will not use contacts to influence police to use available new technology to find him anywhere in India.

16. The applicant has argued he cannot relocate to another area in India because he faces a risk of harm from his uncle in all areas of India. In his application for a protection visa, his additional statement and prehearing submission, the applicant further claims he will not be able to relocate within India to an area where he will not be harmed by his uncle for a number or reasons; that he did not move to another part of India as he did not hold a valid visa.  metropolitan cities are very expensive and the high cost of living, particularly the high cost of residential housing, along with his inability to find a buyer for property, would create financial hardship for the applicants such as to threaten their ability to subsist.[24] He further claimed his wife and daughters cannot relocate to a bigger city because he has two daughters and a wife, and they will not be safe from crime in this environment.  The Tribunal has found above that there is not a real risk that any of the applicants will suffer significant harm in India from his uncle. Accordingly, the Tribunal does not address whether it would be reasonable for the applicant to relocate to another area of India where there would not be a real risk he would suffer significant harm.

    [24] [File number], Doc Id 6473981.

17. The Tribunal notes the submission that the applicant will not be able to access effective police protection from his uncle because of corruption. The Tribunal has found the applicant does not face a real chance of serious harm or a real risk of significant harm from his uncle. Accordingly, the Tribunal does not address whether effective protection measures are available to the applicants on return to India.

18. The Tribunal has considered the applicant’s representative’s pre-hearing submission that the applicant has a well-founded fear of persecution for reasons of his race because the dispute with his uncle arises from traditional and cultural values about land.  In this case, the Tribunal does not accept the applicant has a real chance of serious harm or a real risk of significant harm arising from a dispute with his uncle about land. The Tribunal therefore does not address whether the reason for the claimed harm could be understood as “race”. 

19. It is further argued that the applicant’s fear of harm arises for political reasons, because his fear of harm arises from a fear of police who will not support the family because they are corrupt and will be swayed by his uncle’s political power. As found above, the Tribunal does not accept the applicant’s uncle has the political power or influence the applicant claims he has. Further, the Tribunal does not accept the applicant has a real chance of serious harm or a real risk of significant harm arising from a dispute with his uncle about land. The Tribunal therefore does not address whether the reason for the claimed harm could be understood as “political opinion” (actual or imputed). 

    Second applicant

1. At hearing, the second applicant stated she feared harm at the hands of the applicant’s uncle on return to the applicant’s family home because when she lived in her father-in-law’s home for seven months before coming to Australia to join her husband in August 2013, she saw that the applicant’s uncle was always drunk. She gave testimony that when he was drunk, he would use bad language and abuse them. On one occasion when he was drunk, he locked the front door and tried to hug her tightly. Sometimes her father-in-law sent her to her family home for some days to ensure she was safe from the uncle. She fears for her safety and the safety of the children in this environment. In support of this claim, she stated that the uncle’s wife and daughter have left him because of his behaviour.

2. On the oral evidence of the second applicant, the Tribunal accepts the applicant’s uncle, when drunk, harassed the second applicant when she lived with her in-laws at a time when her husband was not present but in Australia. The Tribunal accepts she felt vulnerable in this situation. However, the Tribunal notes that at that time, the applicant did not have the support of the presence of her husband. The Tribunal considers that on return to India, the second and third applicants will be accompanied by their husband/father, and the applicant, who indicated deep commitment to his family’s safety, will provide the second applicant with support and security in the home. The Tribunal also takes into account the applicant’s parents ensured her safety on occasions when they were concerned about the conduct of the uncle. In these circumstances the Tribunal is satisfied that neither the second nor third applicant face a risk of harm from the applicant’s uncle on return to India.  The Tribunal does not accept the second or third applicant face a real chance of serious harm from the applicant’s uncle if they returned to India now or in the foreseeable future. The Tribunal finds the applicants do not have a well-founded fear of persecution for this reason. The Tribunal does not accept the second or third applicants face a real risk of significant harm from the applicant’s uncle on return to India.

   Financial hardship on return to India

3. The applicant claimed at hearing that he fears he will experience financial difficulties if he must return to India. At hearing, information was put to the applicant under s 424AA of the Act. The applicant was advised that the Tribunal had before it information that [in] October 2019 a Border Watch Online Report (BWART) was forwarded to the Tribunal by the Department of Home Affairs.[25]

   [25] [File number], Doc Id 6474000.

4. The applicant was informed that this report contains an Australian Transaction Reports and Analysis Centre (AUSTRAC) report that indicates the applicant and the second applicant have remitted significant sums of money overseas, approximately $58,000, since the reporting period commenced in 2010, including a sum of over $10,000 in 2016. The Tribunal explained that AUSTRAC is an Australian government financial intelligence agency responsible for monitoring financial transactions in relation to various forms of criminal activity. The Tribunal informed the applicant that this information was relevant because the applicant claims to face financial difficulties, but on the face of this evidence the applicant appears to be well resourced. The applicant was also advised that this information is relevant because it does not appear to be consistent with his testimony that he has limited funds, and this also raises doubts about the general credibility of the applicant’s claims. The Tribunal advised the applicant that the consequences of this conclusion is that, subject to any comment or response he made, the information would be the reason, or part of the reason, for the Tribunal affirming the decision under review. The applicant was offered time to reflect on his response, but he indicated that he did not need more time. The applicant stated that he understood the information put to him.

5. The applicant stated that as far as he knew this information was accurate. The applicant was limited in his response about the reasons for the remittances overseas but stated that these funds were used to pay people in connection with costs associated with visa applications on which he lost money. On the direct evidence of the applicant, the Tribunal is satisfied the applicant was remitting money in connection with visa matters. He indicated that these transactions did not reflect that he was well resourced himself because the report did not show how much money was being sent to him to support him and these expenses. Given his consistent evidence to the Tribunal that he received financial support from his family, the Tribunal is prepared to accept that the applicant may also have been receiving some funds from his family in India to finance this visa matter.

6. On the evidence of the applicant, the Tribunal is satisfied he is working in Australia as a cleaner in [a specified sector]. The Tribunal acknowledges that income in this occupation is not high but notes the applicant stated that he sends some money to his family, and concludes he has sufficient funds to support himself and his family. The Tribunal acknowledges that the applicant may wish to remain in Australia where he has established himself in work rather than to return to India. However, considering the information before it concerning his significant remittances overseas in connection with a visa and his access to financial support from his family, the Tribunal considers the applicant will have access to financial resources on return to India. On the evidence before it, the Tribunal does not accept the applicant faces financial hardship on return to India.

7. In relation to his claim to face financial hardship on return to India, the applicant pointed to the impact of the global COVID-19 pandemic on the Indian economy. The Tribunal acknowledges that COVID-19 has had an adverse economic impact in India but as discussed at hearing the Tribunal has regard to information that economic recovery is gathering pace.[26] The Tribunal also takes into account that both applicants are well educated and have work experience. On this basis, the Tribunal is satisfied the applicants will obtain employment on return to India. As discussed above, the applicant has received considerable support from his family in the past and the Tribunal is satisfied the evidence before it indicates that the applicant has income and family support, such that there is not a real chance that any of the applicants will face serious harm as instanced in s5J(5) of the Act. The Tribunal finds the applicants do not have a well-founded fear of persecution arising from their economic circumstances. The Tribunal is satisfied there is not a real risk any of the applicants will suffer significant harm as defined in s 36(2A) of the Act for financial reasons.

   [26] DFAT Country Information Report India, 10 December 2020, [2.24 – 2.25].

   Health

8. On 16 September 2021, the applicant provided a Statutory Declaration declaring that he had been diagnosed with epilepsy when living in India. In the pre-hearing submission, the applicant’s representative suggested that the applicant had a lot of health issues before coming to Australia, that medication had not been available, and that it was expensive. At hearing, the Tribunal explored whether the applicant faced a real chance of serious harm or a real risk of significant harm arising from the management of his health.

9. On the evidence of a copy of a letter provided to the Tribunal from his doctor, [Doctor A], Consultant Neurologist, [Hospital 1], Ludhiana, the Tribunal accepts the applicant had been under his treatment for epilepsy in India. The Tribunal accepts the applicant’s evidence that the epilepsy started in 1992, but since 2007-08 he has not had seizures and his current medication is “precautionary”. He stated that he suffered a lot from this medical problem (and his uncle) and that he started taking medication when he was living in India. He stated that the second applicant has helped him a lot to reduce and adjust the medication so that it is effective. On the evidence of the applicant, the Tribunal accepts the applicant takes medication to prevent epileptic seizures and that this condition is now controlled.

10. In his open letter dated 2019 (the month and date are not legible) requesting a supplier in India send medication to the applicant in Australia, [Doctor A], advises that the applicant is prescribed Tegretol 400g (twice daily) and Valproate 500 mg (twice daily) to manage epilepsy, and recommends that he continue the same medications for a period of one year, and accordingly requests that a stock of medicines for one year be sent to the applicant by post.[27] On the basis of the letter from his neurologist, the Tribunal accepts the applicant has been prescribed Tegretol and Valproate to control the epilepsy. At hearing the Tribunal also put to the applicants that information in the public domain indicates that his medications are produced, commonly available, widely used and inexpensive in India.[28]

    [27] AAT1929933, Doc Id 8850142, 17 September 2021.

    [28] Sodium Valproate - Manufacturers & Suppliers in India (indiamart.com).

11. The applicant agreed these medications are available in India but said they were expensive. In his statutory declaration of 16 September 2021, the applicant states that a box of 100 Valproate 500mg tablets is 720 INR and a box of Tegretol 400mg is 400 INR. As discussed with the applicant at hearing these products are widely used and accessible at the price outlined by the applicant and supported by online commercial information.[29] The Tribunal acknowledges that over time, costs of medication to manage chronic conditions accumulate. However, as discussed above, the Tribunal is satisfied the applicants do not face financial hardship on return to India and on the evidence before it the Tribunal is satisfied the applicant’s medication will not be inaccessible to him on account of their cost or for any other reason.

    [29] Sodium Valproate 500mg Brands Prices, Side-effects, Uses, Dosage, Generic-Alternatives in India | Uses of Sodium Valproate 500mg (sastimedicine.com), TEGRITAL 400MG TAB (NOVARTIS INDIA LTD) - Buy TEGRITAL 400 – MedPlusMart.

12. The Tribunal is satisfied that the applicant will have access to appropriate treatment and medication for his health condition on return to India. The Tribunal is satisfied there is not a real chance that the applicant will face serious harm as instanced in s 5J(5) of the Act, such as: significant economic hardship that threatens the person’s capacity to subsist; denial of access to basic services, where the denial threatens the person’s capacity to subsist; or denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist, associated with his medical condition. The Tribunal finds the applicant does not have a well-founded fear of persecution arising from his health now or in the foreseeable future. The Tribunal is also satisfied there is not a real risk the applicant will suffer significant harm as defined in s 36(2A) of the Act on return to India on this basis.

    Risk of harm to the second and third applicants as women/gender inequality

    Violence against women

13. At hearing, the applicant claimed his wife and daughter’s safety was his main concern and he feels they are more protected in Australia than India. The applicant and second applicant worry that India is not safe for women and girls generally because sexual violence is prevalent, and the applicant pointed to frequent news about rapes and violence against women. He fears the second and third applicant as women face gender based violence such as such as gang rape, gender based discrimination, the persistence of dowry traditions and human trafficking, putting the view that attacks on women and children predominate in the major cities. In pre-hearing submission, it is also submitted that, as women in India, the second and third applicants face the prospect of domestic abuse.

14. In considering the applicant’s claims that his wife and children face a real chance of serious harm or a real risk of significant harm as women in India, the Tribunal takes into account DFAT country information above discussed with the applicant, indicating that the incidence of reports of crime, including crime against women, has increased in India recently, particularly in urban areas. The Tribunal has also considered information provided to the Tribunal in the pre-hearing submission concerning the level of crime against women.[30] The Tribunal acknowledges that gender-based violence is a feature of traditional social practices in many parts of India.  However, the Tribunal has also considered the DFAT country information above put to the applicant that legislation relating to violence against women is contained in the Indian Penal Code (IPC), civil laws and special laws.[31] The Tribunal also takes into account DFAT country information put to the applicant that most Indians face a relatively moderate risk of criminal violence. In this consideration, the Tribunal gives weight to the particular circumstances of the second and third applicant and notes that on return to India they will be returning to a rural area, where they will have the protection of the applicant and his parents. In particular, at hearing, the applicant expressed strong views in support of gender equality, education and opportunity for women, and commitment to protecting his family. For this reason, the Tribunal is satisfied that there is no real chance or real risk the second and third applicants would be subject to criminal violence on return to India. The Tribunal finds the second and third applicants do not have a well-founded fear of persecution on this basis.

    [30] DFAT Country Information Report India, 10 December 2020, 3.115.

15. The Tribunal has considered the claim that the second and third applicants face a real chance of serious harm or a real risk of significant harm on return to India from domestic abuse. The applicant referred to his uncle’s wife as an example of violence against women, claiming that he beat her, and she could not complain about this, so they separated. As discussed with the applicant, the Tribunal acknowledges DFAT country information that domestic abuse is deeply ingrained in Indian social practices in many parts of India but that in general, women from higher class and caste backgrounds tend to have better access to legal protections. [32]  However, the applicant provided no evidence that the second and third applicants face harm from domestic violence and the Tribunal considers this claim to be wholly speculative, especially noting the applicant’s evident concern at hearing about protecting his family. The Tribunal is satisfied that the second and third applicants do not face a real chance of serious harm or a real risk of significant harm on return to India from domestic abuse.

    [32] DFAT Country Information Report India, 10 December 2020, 3.113.

    Rights of women/discrimination against women

16. Pre-hearing, the applicant submitted that he is concerned that his wife and daughters will be affected by inequality and discrimination in India. Taking account of DFAT’s assessment set out above and discussed with the applicant, the Tribunal acknowledges that while women in India generally face a low risk of official discrimination, they face a moderate risk of societal discrimination, particularly in rural areas and amongst those from lower castes, which can affect participation of women in employment and community life, and access to services.

17. The Tribunal has considered the circumstances of the second and third applicants and notes the applicant and the second applicant are well educated and have access to resources and express commitment to egalitarian values. The applicant expressed strong views about protecting his wife and daughters’ rights in society. On this basis, the Tribunal is satisfied that the environment provided within the applicant’s family will support the second and third applicant such that any discrimination they may face, such as discrimination in participation in education, community life, employment or access to services would not rise to the level of serious or significant harm in India. The Tribunal is satisfied that any discrimination that they may face on return to India will not be such as to involve serious harm as instanced at s 5J(5), or significant harm as defined at s 36(2B).

18. The applicant also submitted that the culture does not give equal shares of land through inheritance to daughters as they believe giving land to daughters will take it away from the family. It is claimed that the second and third applicants will be unable to inherit the land because of discriminatory inheritance practices. In response to country information above indicating that the Constitution provides a number of guarantees in relation to women’s rights, including equality of treatment between men and women[33] and that legislation has been put in place to protect the inheritance rights of women, the applicant claimed that while legislation might change, people’s behaviour does not change. He stated that the government has given women rights in the law but that in reality this is not the case, and that there is a huge difference between official and unofficial discrimination. In support of his claim, he stated that the new inheritance law has led to Indian families preferencing boys over girls and female foeticide.

    [33] DFAT Country Information Report India, 10 December 2020, 3.115.

19. As discussed at hearing, the Tribunal acknowledges that the DFAT report indicates that gender discrimination is deeply rooted in Indian society, and that inheritance laws lack uniformity and, in some cases, discriminate against women. However, the Tribunal takes into account the DFAT assessment discussed with the applicant that women across India generally face a low risk of official discrimination, in that there are constitutional and legal protections for women.[34]  In respect of property rights, the Tribunal takes into account that the applicant states he identifies as Hindu and laws governing matters of inheritance among Hindus make women’s inheritance rights equal to those of men.[35]  The Tribunal observes that legislation is in place to protect the inheritance rights of women, and that this may have led to an imbalance of gender in parts of India. However, the Tribunal does not accept this provides evidence that that the applicant’s wife and daughters face a risk of harm on return to India. The Tribunal has noted the applicant’s evidence that his aunts obtained land through inheritance but chose to transfer it to their brother, but the Tribunal is satisfied that there is no evidence before it to support a claim that the law will not protect the women in his family from inheriting the land and keeping it if they so wish. On the evidence before it, the Tribunal is satisfied the second and third applicants will be able to exercise inheritance rights in India. The Tribunal does not accept the second and third applicants face persecution or significant harm arising from gender inequality in India.

    [34] DFAT Country Information Report India, 10 December 2020, 3.131.

    [35] DFAT Country Information Report India, 10 December 2020, 3.130.

    Fear of harm on the basis of race

20. The Tribunal has considered the argument raised in a pre-hearing submission that the second and third applicant fear persecution for reason of their race as Indians, because the Indian culture perpetuates traditional and cultural values that support the inequality of women. On the basis of country information discussed above, the Tribunal acknowledges that Indian culture perpetuates traditional and cultural values that support the inequality of women. As above, the Tribunal acknowledges that the second and third applicant may experience discrimination as women within the Indian culture. The Tribunal has considered whether the second and third applicants face persecution or significant harm arising from gender inequality. As above, the Tribunal is satisfied that the environment provided within the applicant’s family will support the second and third applicant such that any discrimination they may face, such as discrimination in participation in education, community life, employment or access to services would not rise to the level of serious or significant harm in India. The Tribunal is satisfied that any discrimination that they may face on return to India will not be such as to involve serious harm as instanced at s 5J(5) for reason of race or any other reason, or significant harm as defined at s 36(2B).

    Adjustment difficulties for the third applicant

1. On behalf of the third applicant, the applicants claim she is adapted to Australian living conditions and faces hardship on return to India as a result. It is claimed that it is in the best interest of the applicant’s daughters that they remain in Australia. The Tribunal notes that the child’s best interest does not bear on whether ss 36(2)(a) and (aa) are met. However, relevant to this application, the Tribunal has considered whether the third applicant, who was born in Australia and, it is claimed, does not speak Punjabi, faces a real chance of serious harm or a real risk of significant harm because she is adjusted to Australian living conditions. It is claimed the third applicant does not speak Hindi or Punjabi because they speak English at home to improve her English, even though this means she can’t talk with her grandparents.

2. The Tribunal is prepared to accept the third applicant’s fluency in Punjabi may be low given she is living in a predominantly English-speaking environment. The Tribunal acknowledges that the third applicant, who is now [age] years old and has been raised in Australia, may have some short-term challenges associated with adapting to life in India. In particular, the Tribunal acknowledges the third applicant may experience initial difficulties communicating in Punjabi. However, on the evidence of the applicants at hearing the third applicant is healthy and doing well at school (although COVID-19 restrictions have hampered her attendance) and the Tribunal considers that the third applicant, with the support of her family, will quickly learn to communicate in Punjabi and adapt to the new cultural, social and physical environment. The Tribunal finds there is not a real chance the third applicant faces serious harm as instanced in s 5J(5) of the Act, or that there is a real risk she will suffer significant harm as defined in s 36(2A) of the Act on this basis.

3. The applicant claims his daughters are more vulnerable to being deceived by strangers and more likely to be targeted by predators as a result of their safe upbringing in Australia. In considering this claim the Tribunal takes into account that the third applicant, who is [age] years old, is under the care and guardianship of her parents, the applicant and second applicant. The Tribunal finds that immediately on return to India, the third applicant will be protected from strangers and predators by her parents. The Tribunal does not accept she will be at risk of harm for this reason. The Tribunal considers the applicant, and second applicant will have the majority of the third applicant’s formative years to properly inculcate awareness of security issues appropriate to the Indian society and culture. For this reason, the Tribunal does not accept the third applicant will be vulnerable to deception because her early years have been spent in Australia. The Tribunal does not accept there is a real chance that the third applicant faces serious harm as instanced in s 5J(5) of the Act, or that there is a real risk the third applicant will suffer significant harm as defined in s 36(2A) of the Act on return to India on this basis.

   COVID-19

4. The Tribunal has considered the claim that the applicants cannot return to India because there is a high risk of COVID-19 in India. The Tribunal acknowledges that parts of India have been seriously affected by COVID-19, which has placed strain on India’s health infrastructure.[36]  However, the Tribunal is satisfied that none of the applicants have a well-founded fear of persecution on this basis, as the risk of COVID-19 does not arise for a s 5J(1)(a) reason. The Tribunal further finds that the applicants do not face a real risk of significant harm on return to India arising from COVID-19, as the risk of contracting COVID-19 is one faced by the population generally and is not faced by any of the applicants personally (s 36(2B)(c) of the Act). The Tribunal is satisfied none of the applicants face a real risk of suffering significant harm in India on this basis.

   [36] DFAT Country Information Report India, 10 December 2020, 2.38.

5. Having considered all of the applicants’ claims, individually and cumulatively, and all the evidence, for the reasons given above, the Tribunal does not accept that if the applicants were to return to India now or in the reasonably foreseeable future, there is a real chance that any of the applicants will suffer serious harm for reason of their race, religion, nationality, political opinion or membership of any particular social group apparent on the face of the evidence. The Tribunal finds that none of the applicants has a well-founded fear of persecution for any reason on return to India now or in the reasonably foreseeable future. For the same reasons, the Tribunal finds there are not substantial grounds for believing that, as a necessary and foreseeable consequence of any of the applicants being removed from Australia to India, there is a real risk that any of the applicants will suffer significant harm.

   Third country protection

6. It was submitted that the applicant has no right to enter a third country, and the Tribunal notes this was also a finding of the Departmental delegate. The Tribunal does not address this issue having found above that none of the applicants have a well-founded fear of persecution or a real risk of significant harm in India.

   CONCLUSION

7. For the reasons given above, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.

   DECISION

8. The Tribunal affirms the decision not to grant the applicants protection visas.

   Amanda Paxton
   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.

   …