2004744 (Refugee)

2004744 (Refugee) [2020] AATA 1786 (12 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2004744
COUNTRY OF REFERENCE:                   India
MEMBER:Tania Flood
DATE:12 May 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 May 2020 at 10:07am
CATCHWORDS
REFUGEE – protection visa – India – fear of harm from ex-girlfriend’s father – threatened and forced to leave India after relationship discovered – no contact with ex-girlfriend, who is now married to someone else – credibility – inconsistent evidence – delay in applying for protection – no claim of fear of harm raised during previous interactions with department – lengthy period as unlawful non-resident and in immigration detention – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 198
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 March 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of India, applied for the visa on 19 February 2020. The delegate refused to grant the visa on 10 March 2020.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicant will suffer serious harm if he returns to India for reason of his race, religion, nationality, membership of a particular social group or political opinion or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to India there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
According to information contained in the application for a Protection visa the applicant is a [age]-year-old, unmarried Indian man who speaks, reads and writes English and Hindi. He departed India from Delhi Indira Gandhi International Airport [in] April 2012 and arrived in Australia [the next day].
The applicant claims that he was in a relationship with a girl in India who was from a bureaucrat family. During his last visit to India her father found out about the relationship. He called the applicant’s father and threatened that if he did not leave India he would be harmed. The applicant claims he left the country shortly afterwards and has not returned since.
The applicant claims that he has lived in Australia since he was [age]. If he is sent back he will face harm, mistreatment and will be arbitrarily deprived of a free life. He claims he might also face false involvement in a crime and/or imprisonment.
Tribunal hearing
The applicant is in immigration detention and was to appear before the Tribunal via videoconference. Due to technical difficulties with the videoconferencing connection the applicant agreed at the commencement of the hearing to appear before the Tribunal together with his representative, by teleconference. The applicant confirmed the audio quality of the teleconference was good and before the hearing concluded he reaffirmed he was able to hear and communicate clearly throughout the teleconference.
By way of background the applicant informed the Tribunal that he was born in Chandigarh, India. He said he lived with his parents in Panchkula prior to his move to Australia. He confirmed that his parents remain living there. He has one brother who is an Australian citizen and resides in Melbourne. The applicant stated that his father retired about four years ago from his role as a senior manager in a [specified] company. The applicant advised that he completed Year 12 in India and has completed [two qualifications in two subjects] in the time he has spent in Australia. The applicant never worked in India but has held various roles in Australia including working in [three workplaces]. The applicant said that he speaks Punjabi, Hindi and English.
As to his migration history the applicant informed the Tribunal that he came to Australia in 2007 on a student visa and later applied for permanent [visa] in 2009. That application was refused in 2016 and he applied for a Protection visa in 2020.
The applicant advised that he came to be in immigration detention after being located in the community without a valid visa. Previously he said he was detained in 2016 after his application for permanent residency was rejected.
The applicant advised that he was convicted of drink driving in 2012 and of verbal assault of a police officer and resisting arrest in 2015. He said he was convicted and ordered to perform 300 hours of community service which he did.
The applicant advised that since his arrival in 2007 he has returned to India three times in 2009, 2009 and 2012. He said he returned to visit his parents and his girlfriend and stayed approximately 4-6 months on each occasion.
The applicant was asked why he fears returning to India and he repeated the substance of his written claims. He indicated that he fears his ex-girlfriend’s father will seriously harm him and that this is the only reason he fears returning to India.
The applicant advised that he commenced a relationship with his ex-girlfriend at age 14 in [year]. He confirmed the relationship ended in 2012 when her father discovered the fact and they have had no further contact since then. He said that through a common friend he knows that she is now married and remaining living in India. He said her father-in-law is [an occupation].
The applicant was asked why he thinks her father would harm him if he returns to India now given the relationship ended eight years ago and his daughter has now married into a prestigious family. The applicant replied that her father was very angry when he discovered the relationship and threatened his father and he was told by his ex-girlfriend that her father is not the type to easily forgive or let go. He added that should he return to India she would definitely want to see him again. He said that their relationship ended by force and he is sure that she was forced into her marriage by her father.
The Tribunal noted his earlier evidence that they have had no contact in eight years and questioned why his ex-girlfriend would wish to see him. The Tribunal noted that it would be quite easy for her to have contacted him through social media if she so wished and the applicant agreed. He nevertheless reiterated that he is certain she will try to meet with him if he returns to India. He added that it would be a different matter if he was physically present in India.
The Tribunal asked how his ex-girlfriend’s father discovered their relationship and he suggested that it might have been through one of the neighbours. The Tribunal asked whether it was unusual in his neighbourhood for young people of different sexes to socialise together openly and he said it was not. He confirmed that such social behaviour would not normally attract any adverse attention. The Tribunal asked why a neighbour would therefore inform her father that they were seen together. He said he did not know and it could just be the actions of a hateful neighbour.
The Tribunal asked the applicant how the threat to his safety was made and he said that her father called his father to make the threat. He said his ex-girlfriend knew his parents and she had their number in her phone because he would sometimes call her using his father’s phone when he returned to India. He confirmed that the threat was made only once and that her father has made no further contact with his family since 2012. He said this is because they complied with his demand that he should leave India.
The Tribunal asked the applicant why he could not seek police protection in the event his ex-girlfriends father threatened to harm him again. He said that he is [an occupation] in Punjab and is part of the establishment himself. Similarly he said he could not safely relocate within India for this reason. He added that it would be impossible to relocate because his parents remain living in his home area and are old. Further he said that finding a job in India would be next to impossible noting language variations throughout the country.
The Tribunal put it to the applicant that it was not persuaded that his ex-girlfriend’s father would be motivated to harm him given the passage of time and the current circumstances of his daughter. The applicant said he asks himself the same question, but he thinks her father has only refrained from further threats because he got what he wanted, namely the applicant’s departure from India. The Tribunal indicated that if his evidence is to be believed her father indeed got what he wanted: an end to the relationship and his daughter married into a good family.
The Tribunal put it to the applicant that it is concerning the delegates decision which was provided to the Tribunal as part of application for review indicates that in numerous contacts with the Department in 2016, 2017 and 2019 he was asked if he had any fear of returning to India and on all occasions he did not mention on any of the fears he is expressing now. The applicant responded that he was quite certain his permanent residency application would be approved and consequently he felt he would have no need to go back to India. The Tribunal noted his response but asked why informing the Department of his fears would have created a problem for him. He said that he was applying for a different visa at the time and the admission of these circumstances would have changed the nature of his application.
The Tribunal also pointed out that he claimed his life was threatened in 2012 causing him to immediately leave India yet he only applied for a Protection visa some seven or eight years later. Again, the applicant responded that he was certain he would have no need to return to India. He added that previously he had been returning to India frequently to visit his parents and his girlfriend but that since the incident in 2012 he has never returned.
Noting the reference in his written claims to him having left India at [age] the Tribunal enquired whether this circumstance presents any difficulties for his return to India. The applicant replied that his fears of returning to India are restricted to the problems with his ex-girlfriend’s father. Again he confirmed he had no other reason to fear returning to India.
Before the hearing concluded the applicant’s representative referenced the provisions in s.198 of the Act regarding removal from Australia and indicated that a decision to affirm the decision would result in the applicant languishing in detention indefinitely due to the coronavirus pandemic which would arbitrarily deprive him of his life and liberty. The representative indicated that he would put a submission in writing to this effect but later declined to do so.
In post hearing submissions the applicant provided the following additional information in respect of his claims:
He failed to mention certain things at the hearing due to concern for the privacy of his ex-girlfriend. He claims his ex-girlfriend’s father will pursue him if he returns to India because the relationship he had with his daughter was physical. He said that through a common friend he has been told that before his ex-girlfriend was married her father forced her to undergo vaginoplasty and labiaplasty to remove evidence of prior sexual activity.
The applicant further claims that he and his ex-girlfriend stay in touch indirectly through a common friend. He said that every year on their respective birthdays they send each other messages. He claims that if he asked his ex-girlfriend to join him in Australia she certainly would, but he will not do that because he doesn’t want to hurt her husband or put his parents at risk of harm and because his self-respect would not allow it.
The applicant claims he is a [creative artist] and that his feelings and sentiments are reflected in his artistic works which are published on YouTube.
The applicant claims he never mentioned his fears of returning to India to the department previously because if he applied for a Protection visa he would be placed on a Bridging Visa for a lengthy time which would have restricted his opportunities to plan and progress his life.
The applicant claims that being in detention has taken its toll on him and he gets confused and doesn’t perform well under pressure.
The applicant provided a statement from his brother imploring the Tribunal to consider the application favourably on family grounds. His brother also briefly references the applicant’s fear of his ex-girlfriend’s father in India.
The applicant also provided a statement from the 13 year old son of his best friend which attests to the applicant’s kind and sympathetic nature.
FINDINGS AND REASONS
Country of reference
Attached to the Departments file is a copy of the applicant’s Indian passport which verifies his claimed identity and nationality. In the absence of any information to the contrary the Tribunal accepts the applicant is a national of India.
The Tribunal has considered the applicant’s testimony but has serious concerns about the veracity of key aspects of his claims. While it is possible the applicant had a relationship with a girl in India from 2003 until 2012 the Tribunal does not accept that the relationship ended for reason of them being discovered by her disapproving father or that the applicant was threatened by him by way of a phone call made to his own father. The Tribunal’s reasons for arriving at this conclusion are as follows:
The applicant claims he maintained a relationship with his ex-girlfriend from 2003 to 2012. He claims they conducted the relationship in a relatively open manner, socialising publicly together and engaging in the usual activities of persons dating such as meeting up with friends and eating out together. Noting this, the Tribunal found his testimony as to how his relationship was only discovered in 2012 to be unconvincing. During the hearing the applicant informed the Tribunal that he does not know who informed his ex-girlfriend’s father of the relationship and merely speculated that it could have been a hateful neighbour. In view of the applicant’s testimony that it was not uncommon in his area for young persons of the opposite sex to be seen socialising in public the Tribunal is not persuaded that a concerned or hateful neighbour would have taken such action some nine years into their relationship.
When the Tribunal indicated to the applicant that there appears in any event to be little chance that his ex-girlfriend’s father would pursue him some eight years after the relationship ended and particularly now that his daughter is married, he acknowledged his own disbelief about this but nevertheless reiterated his fear that he would be harmed by her father on return. As noted above, it was only after the hearing that the applicant introduced the claim that her father would do so because he had a physical relationship with his daughter. During the hearing the Tribunal observed that the applicant delivered his evidence calmly and clearly. The applicant also implored the Tribunal to make further enquiries of him before the hearing concluded in order that all the relevant information was clearly understood before a decision was made. Before the hearing concluded the applicant was asked more than once whether he wished to add anything further or alert the Tribunal to any other relevant information and he declined. Despite all this and despite being informed that the proceedings were confidential, the applicant advised the Tribunal almost immediately post-hearing of new information. Namely that the circumstances were more serious because his relationship with his ex-girlfriend was physical; that her father forced her to have corrective surgery before marriage and that this heightens the likelihood of him being harmed on return to India. In the Tribunal’s view the manner and the circumstances in which this evidence was presented raises serious concerns about the reliability of the applicant’s evidence. The Tribunal remains unpersuaded that the applicant’s ex-girlfriend’s father will pursue and harm him on return to India.
Furthermore, the applicant claimed during the hearing that there has been no contact of any kind between himself and his ex-girlfriend since 2012 when the relationship ended. In his post-hearing submission he claimed to the contrary that they send each other messages each year on their respective birthdays through a common friend. While the applicant maintains he has had no direct contact with his ex-girlfriend the Tribunal nevertheless finds the evidence troubling. Relevantly during the hearing, the Tribunal discussed with the applicant whether with the convenience of social media either he or his ex-girlfriend had pursued any contact with the other and despite agreeing it would be a simple matter to do so he confirmed that this had not occurred. The applicant repeatedly rejected the Tribunal’s suggestion that it appears his ex-girlfriend is not interested in contacting him. The Tribunal considers if the claimed indirect contact with an intermediary had occurred the applicant would have mentioned it in the course of these discussions. That he did not causes the Tribunal to conclude that the late introduction of this evidence is contrived and cannot be believed.

In response to the concerns raised over his failure to mention any fears of returning to India during numerous interactions with the department spanning several years the applicant said that he did not want to change the nature of an ongoing visa application or suffer the inconvenience of holding Bridging visas for a lengthy period of time. The Tribunal has considered his responses but is not persuaded that these circumstances prevented the applicant from honestly informing the department that he had cause to fear returning to India when asked. The Tribunal does not accept that an admission of this fact would have automatically required him to change the type of visa applied for. In any event the applicant became unlawful in 2016 and was detained after his application for a [permanent] visa was refused and before he commenced further proceedings over this decision. Informing the department that he had genuine fears of returning to India at that stage would have been in his best interests. That the applicant continued to state he had no fears of returning to India raises serious concerns for the Tribunal about the credibility of his claims.
Added to the above concerns is the fact that the applicant claims he fled India in fear for his life in 2012 and yet only applied for a Protection visa some eight years later in 2020. The applicant’s response is that he thought it would be unnecessary to seek protection because he was certain his permanent residency application would be approved. As noted above, even when this lifeline was removed on refusal of his visa application in 2016 the applicant did not seek the protection of the Australian government at that time. This also causes the Tribunal to seriously doubt the veracity of his claims.
The Tribunal notes the applicant’s submission that his failure to return home to India since 2012 is proof that he has a fear of doing so. However, the Tribunal considers this could have more to do with the uncertainty of his visa status and ability to return to Australia than the fear of harm he claims.
The Tribunal has also considered whether the applicant’s testimony at hearing was affected by nerves and/or the strain of being held in detention but is satisfied it was not. The applicant is an educated young man who spoke fluent English and delivered his testimony calmly and rationally. The Tribunal considers he introduced this claim post hearing in a bid to overcome the concerns raised with him at hearing and to account for the introduction of late evidence after the hearing.
The Tribunal acknowledges that the letter produced by the applicant’s brother lends some support for the applicant’s claim to fear harm from his ex-girlfriends father, however given the above concerns and because the applicant’s brother has a declared interest in the outcome of the application the Tribunal has afforded this supporting evidence no weight.
Having considered all the available evidence and for the reasons outlined above, the Tribunal is prepared to accept the applicant had a relationship with an Indian girl which ended in 2012. However, the Tribunal is not prepared to accept the relationship was forbidden or that it ended for the reasons which are claimed. Nor does the Tribunal accept that the applicant was threatened with serious harm in 2012 by his ex-girlfriend’s father or that for the reasons claimed he would face such threats of harm if he returns to India now or in the reasonably foreseeable future.
As noted in the above account of the Tribunal hearing the applicant indicated that he has no other reason to fear returning to India other than from his ex-girlfriend’s father, including because he has lived outside of India since [age].
For all the above reasons the Tribunal is satisfied that there is not a real chance the applicant will suffer serious harm if he returns to India now or in the reasonably foreseeable future for the reasons claimed or for any other reason. Therefore, the applicant does not have a well-founded fear of persecution and is not a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2) (aa) of the Act. For the same reasons already articulated the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India there is a real risk that he will suffer significant harm. Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
The Tribunal notes the submissions made in reference to the coronavirus pandemic and the requirements at s.198 of the Act however the practicalities of how and when the applicant might be removed from Australia and the circumstances he might face in the meantime are not relevant to this decision. The Tribunal considers this to be a matter for the Department.
For completeness the Tribunal notes that no issues were raised during the hearing or post hearing about fears for the applicant’s safety and wellbeing in India on account of the coronavirus pandemic.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tania Flood
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 1786

12 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice