2008272 (Refugee)

2008272 (Refugee) [2023] AATA 3669 (28 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Vanessa De Pretis (MARN: 1388116)
CASE NUMBER:  2008272
COUNTRY OF REFERENCE:                   India
MEMBER:Katherine Harvey
DATE:28 July 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 28 July 2023 at 2:36pm

CATCHWORDS
REFUGEE – protection visa – India – religion – Hindu – Sikh convert – inter-religious marriage – threats of harm by family and community – honour killing – legally changed names – family’s political links provide impunity – delay in applying for protection – inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 4, 5H, 5J, 5K, 5L, 5LA, 29, 36, 65, 411, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
EZC18 v MHA [2019] FCCA 464
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 April 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant (the applicant) is a [age]-year-old woman and the second named applicant is a [age]-year-old man. The first and second named applicants are married and the third named applicant is their daughter. At the time of application, they claimed to be citizens of the Republic of India (India).
The first and second named applicants first arrived in Australia in May 2009 on a student visa held by the applicant, and they have not departed the country since. The third named applicant was born in Australia on [date] and has not departed the country. They applied for the protection visas on 26 April 2016.
On 30 April 2020, a delegate of the Minister refused to grant the visas.
The review application
On 14 May 2020, the applicants applied for a review of the delegate’s decision. They provided a copy of the delegate’s decision. The Tribunal is satisfied that the decision is reviewable under s 411(1)(c) of the Act.
The applicants appeared before the Tribunal on 26 July and 11 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicants’ landlords, [Mr A], with whom they used to reside, and his sister [Ms B]. The Tribunal hearing was conducted, with the assistance of an interpreter, in the Punjabi and English languages. Breaks were taken during the first hearing to accommodate the applicant, who self-reported a panic attack the night before the hearing. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments. Where relevant, their evidence to the Tribunal is referred to below in the Tribunal’s analysis.
The applicants were represented in relation to the review and their representative attended the hearings.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Summary of claims
In her protection visa application, the first named applicant claimed that she came to Australia with her husband to study and get out of trouble in India. She claimed that she and her family unit will be killed because she is a Hindu who secretly married a Sikh in a love marriage, which her family and the local Hindu community were against. She claimed that everyone thinks that she has brought a bad name to family and community, and they want to kill her and her family. She claimed the authorities will not protect her as the Hindus in local government oppose inter-religious marriage. She claimed that it is easy for her family and community members to trace her and her family and kill them, and she changed her name because she was worried people might find her.
The applicant appointed a migration agent and on 29 June 2017 the applicant’s representative lodged a submission with the Department that provided additional details about the applicant, her background, her relationship with the second named applicant, her family, her father’s political links, her daughter, the family’s living arrangements in Australia and the applicant’s claims. The submission advised that the applicant is a Hindu from an affluent family in the Rajput family caste, her husband is a Sikh from the Jat caste, that they married in the Sikh temple on [date] 2004 and registered their marriage [in] 2007. The applicant claims she fears that her family would kill her for marrying a Sikh and harming their reputation, and that the males in her family could act with impunity because her father has strong political links to Shiv Sena and the Bharatiya Janata Party (BJP) and the police are ‘hand in glove’ with her father. The following supporting evidence was provided:
·   a certified statutory declaration from the applicant dated 6 April 2017
·   certified copies of the applicant’s Indian passport and Indian driver’s licence
·   a certified copy of the first and second named applicants’ marriage certificate
·   certified copies of the applicant’s matriculation certificate, secondary school examination, Bachelor [degree] and university results
·   certified copy of the applicant’s change of name certificate dated [in] March 2014
·   certified copy of the second named applicant’s Indian passport
·   certified copy of the third named applicant’s Indian passport, certificate of graduation from preschool, 2016 end of year school report and tennis participation award
·   statement from [Mr A], the applicant’s landlord with whom they share accommodation, and
·   18 articles published between 2010 and 2016 about honour killings in India, including [an article] dated [2012] about the killing of a 25-year-old Jat Sikh man who married a Jat Sikh woman against her family’s wishes in [City 1], where the applicant was born.
On 26 February 2020, the delegate requested additional information from the applicant to help assess her application, including:
· evidence that the child included in the application is a dependent, and
· details of the applicant’s addresses for the past 30 years.
On 3 March 2020, the representative advised that the applicant had misplaced the passport that she arrived in Australia on and submitted details of:
·   the applicant’s father, mother and brother in India and her daughter in Australia
·   her address in India from birth to May 2009 and her current address in Australia
·   the third named applicant’s birth certificate
·   copies of the biodata pages from the applicant’s Indian passports showing her name as [Ms C, with GivenName 1 and FamilyName 1] in her passport expiring [2019] and [Ms D, with GivenName 2 and FamilyName 2] in her passport expiring [2023]. The applicant’s address is recorded as [Address 1] Jalandhar Punjab and [Address 1] Jalandhar respectively.
·   copies of the biodata pages from the second named applicant’s Indian passports showing his name as [Mr E, with GivenName 3 and FamilyName 1] in the passport expiring [2019] and [Mr F, with GivenName 3 and FamilyName 2] in the passport expiring [2023]. The second named applicant’s address is recorded as [Address 1 variant 1], Jalandhar and [Address 1 variant 2], Jalandhar respectively, and
·   a copy of the third named applicant’s Indian passport recording her address as [Address 1], Jalandhar City, Punjab.
On 4 March 2020, the representative submitted that:
·   an agent had prepared the applicant’s student visa application and that she and the second named applicant did not see the information submitted and were led by the agent who obtained the necessary documents at cost, that the second named applicant had sold his land to pay for the visa and travel costs but this could not be used as evidence to support the application so the agent did what s/he needed to get the visa across the line. The applicant was surprised to hear the student visa application contained a financial statement from her parents and she only became aware of the paperwork relating to her parents funds during the interview on 3 March 2020. The applicant’s main concern was their safety and their priority was leaving India and they did what they needed to do to ensure their safety.
·   while the second named applicant speaks to his mother in India, the applicant maintains that she has not spoken to her family since she ran away and she has not contact and she has not returned to India nor have her parents been to Australia, even at the birth of her daughter.
·   the applicant was brought up in a family with strong political connections and strong Hindu belief who are against other religions. She recalls her father meeting many political personnel and authority figures such as the police and she was always made aware of the power of her father.
·   the applicant left her comforts in India like a double bed and servants to come to Australia where she shares a bedroom with her husband and daughter. Despite others who have encouraged the applicant to pursue a partner visa with the man her family shares a house with, she has not pursued this pathway as she is not a dishonest person, even though she has the evidence to support their relationship as she cooks, cleans and cares for him.
·   the applicant has shamed her family by running away and marrying a person of a religion they oppose who is a practising Sikh and raising their daughter accordingly.
·   the applicant claimed that returning to other parts of India is not a viable option as the family would need paperwork other than passports to show where they have come from and from whom they belong in order to rent or purchase property, and this information could be leaked to her powerful and known family.
·   that the applicant did not use an interpreter when in hospital with her daughter out of fear the interpreter would release information about her identity supports her fear of persecution.
·   the representative also provided a copy of the passport the second named applicant used to travel to Australia.
On 21 April 2020, the Department requested information on how the second named applicant legally changed his name. A copy of his change of name certificate dated [in] March 2014 showing his name change from [Mr E] to [Mr F] was provided.
On 19 July 2022, the representative submitted
·   a submission from the representative dated 19 July 2022 including background about the applicant, her family, her marriage, her family’s support for Shiv Sena, the relevant law and her migration history
·   a copy of the biodata page of the third named applicant’s Australian passport
·   witness statements from the applicant, the second named applicant, the applicant’s landlords [Mr A] (signed by his sister EPOA) and [Ms B]
·   a letter dated 12 July 2022 from [Dr G], [named] Clinic about the second named applicant
·   a letter dated 7 July 2022 from [Ms H], a Counsellor at [Organisation 1] about the applicant, and
·   copies of documents previously provided.
After the first hearing on 26 July 2022, the representative advised that the applicant had remembered the name of the politician in the photo with her father is Tikshan Sud[1] and provided further comment on issues raised during the hearing (discussed below). The representative also submitted:
·   an SA Police calling card
·   a copy of an FOI application to SAPOL
·   a SAPOL FOI request receipt.
[1] Tikshan Sud or Sood was elected as a BJP candidate to the Punjab Legislative Assembly from 1992–2012 representing the Hoshiarpur district.
On 4 August 2022, before the second hearing, the representative submitted:
·   a submission from the representative dated 3 August 2023
·   a signed declaration from the applicant and second named applicant dated 4 August 2023 declaring the submission accurately presents their claims
·   the third named applicant’s school reports for Semester 1 2022, mid-year 2021, 2021 and 2020; her NAPLAN results for 2021, a cricket certificate, cricket club medals, a letter from her cricket coach, two karate certificates and confirmation of her enrolment at [named] College in 2023
·    a copy of a BJP Facebook page of the applicant’s ‘suspected father’ showing three photographs posted 16 July with 15 ‘likes’ and ‘loves’, 3 comments and 3 shares
·   a copy of a BJP Facebook page of the applicant’s ‘suspected brother’ showing one photograph posted 4 July with two ‘likes’ and one share
·   country information articles from 2014 to 2022 about religious violence, Narendra Modi, travel to Nepal, the Treaty of Peace and Friendship between India and Nepal and dual nationality in India
·   country information about Nepal including the online visa application form, visa information, arrival in Nepal, DFAT country information, Nepal as a source of Australian students, World Bank report on unemployment, socio cultural information and 8 articles on honour killing in Nepal, and
·   copies of documents previously provided.
After the second hearing, on 16 August 2022, the representative submitted an email addressing the delay in lodgement of the protection visa application and an assessment against the protection visa criteria. The representative also advised that the applicant had contacted her with a self-threatening email and she provided a copy of a response to the second named applicant’s SAPOL FOI refusing access as it is a document held by the State Intelligence Section of South Australia Police and is exempt from disclosure.
CONSIDERATION
The issue in this case is whether the applicants have a well-founded fear of persecution for a refugee nexus reason, or if they are owed complementary protection, or if they are a member of the same family unit as a non-citizen who is a refugee or is owed complementary protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicants’ personal details are set out in the application for protection. The applicant is a [age]-year-old woman who was born in [City 1], Punjab, India. She obtained a Bachelor [degree] from [University] in 1997 and arrived in Australia as the holder of a TU572 student visa in 2009. She claims to have been born a Hindu of the Rajput caste, to have married a Sikh and at the hearing she claimed she is now a Sikh.
The second named applicant is a [age]-year-old man who was born in [Punjab], India. He claims to have been born a Sikh of the Jat caste. The Tribunal accepts that he and the applicant are married. In India, he worked in [Occupation 1] and in Australia he works as a [Occupation 2].
The third named applicant is a [age]-year-old girl who is the Australian-born daughter of the applicant and second named applicant. The applicant claims that she is being raised as a Sikh.
Country of reference
The applicant and second named applicant
The applicant and second named applicant claim that they were born in India and they travelled to Australia on Indian passports. Since arriving in Australia they have both changed their names and they provided their change of name certificates and the biodata pages of their Indian passports, which are held in their current names.
The Tribunal is satisfied that the applicant and second named applicant are citizens of India and that India is the receiving country for the purpose of s 36(2)(aa) of the Act.
The third named applicant
The third named applicant was born in Australia.
Under s 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. Subsection 36(2) of the Act relevantly provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a protection visa can only be granted if the applicant is a non-citizen. Indeed, the object of the Act is to regulate the presence in Australia of non-citizens and visas cannot be granted to Australian citizens (see ss 4 and 29 of the Act).
The applicants provided a copy of the third named applicant’s Australian passport biodata page.
As discussed at the hearing, the Tribunal is satisfied on the evidence before it that the third named applicant is an Australian citizen. It follows that the third named applicant does not satisfy the requirements of s 36(2) and cannot be granted a protection visa.
Mental health
At the first hearing, the applicant self-reported having had a panic attack the night before and having had depression after her daughter was born and she was unable to enrol in a different college.

In her report, prepared at the request of the applicant’s representative and with the applicant’s consent, [Ms H] reports that the applicant was referred to [Organisation 1] by her representative on 16 February 2021 to address and manage a range of symptoms. [Ms H] advised that she holds a Bachelor of Psychology and a Master’s in Counselling and Psychotherapy and has worked as a Counsellor at [Organisation 1] for 18 months. She reports that the applicant has engaged regularly in counselling sessions over the past 17 months and has attended 25 face-to-face and telephone sessions in that time.
The Tribunal carefully considered the report from [Ms H]. The report details the claims of the applicant in the form of self-reporting of the applicant. In this context, [Ms H] states that the applicant has reported symptoms including being constantly worried, stressed and anxious, nausea, loss of appetite, stomach pain, headaches, lack of trust, sadness, anxiety, rumination and isolation, nightmares, sleep difficulties, deep sadness and feelings of hopelessness. The applicant reported to fear for her safety and discrimination from the Indian community and that she has socially isolated herself. The applicant reported being constantly worried about her daughter and her safety, that she is very involved in the care of her daughter and that she takes her daughter to school and extracurricular activities such as soccer and cricket. The applicant has told [Ms H] that if she is deported to India she has no doubt that she is going to be killed by her family. [Ms H] advises that the applicant ‘has reported perceived exposure to threatened serious injuries and threatened death since she can’t return to her country of origin’. [Ms H] claimed the continued uncertainty about her immigration status places the applicant in a debilitating and chronic state of fear which greatly delays her recovery and therapeutic progress.
[Ms H] also advised that [Mr A], the applicants’ landlord, was hospitalised after an acquired brain injury (she reported he had a fall and is now in a wheelchair) and is now in a nursing home but allows the applicant and her family to stay in his home in return for their kindness to him. She advised that the applicant and her family regularly visit [Mr A] in his aged care facility.
The Tribunal has considered [Ms H]’s report to the extent it provides a professional counsellor’s opinion. The Tribunal notes that the report does not provide a diagnosis of post-traumatic stress disorder and no clinical or medical diagnosis has been provided to the Tribunal. However, the Tribunal does accept [Ms H]’s assessment that the applicant’s presentation was highly symptomatic with some coping strategies. At the hearing, the applicant self-reported having a panic attack the night before. During the hearing, short breaks were taken to accommodate the applicant, which was acknowledged with thanks by the representative in her submission of 28 July 2022.
In considering [Ms H]’s report, the Tribunal does not accept the reporting of the applicant’s claims in any way strengthens her claims, given these are self-reports of the applicant, and the Tribunal does not accept the conclusion of [Ms H] that the applicant will be harmed on return to India, this being outside the area of her professional competence.
The Tribunal does not accept that the applicant suffering psychological symptoms confirms her claims to be true and for the reasons below it does not accept that the central claims made by the applicants are true. The Tribunal notes that psychological symptoms may have a range of causes and notes that [Ms H] claimed the continued uncertainty about the applicant’s immigration status places her in a debilitating and chronic state of fear. The Tribunal is satisfied that when the applicant’s migration status is clarified her symptoms should resolve such that she would not face any risk of serious or significant harm based on any medical condition or mental health issue in India.
As part of the post-hearing submission on 16 August 2022, the representative advised that:
Following the hearing of Thursday 11 August, [the applicant] had contacted me with a self-threatening email again raising concerns for her safety and that of her family. I bring this to the attention of the Tribunal to support the seriousness of [the applicant’s] claims and the genuine fears that she has if a negative decision was to be made on her application.
The representative did not provide a copy of the email or any other information relating to the self-threatening email. The Tribunal considered the claim raised by the representative that the applicant is threatening self-harm if she is not granted a protection visa informed by the Federal Court decision that held that a decision maker must be satisfied that another actor is intent on dispossessing someone of their life in a despotic or tyrannical fashion or otherwise subject to whim or caprice.[2] A person committing suicide is not being arbitrarily deprived of their life because the action is not done by a separate actor, they are doing it to themselves.
[2] EZC18 v MHA [2019] FCCA 464 at [74]. However, the Department’s Complementary Protection Guidelines state that although intention can be a relevant indicator of arbitrary deprivation of life, it is not a necessary element: Department of Home Affairs, Complementary Protection Guidelines, section 3.4.1.1, as re-issued 29 February 2020. This is despite the fact that the Guidelines were re-issued after both the EZC18 judgments at first instance and on appeal were delivered.
The Tribunal considered this claim that the applicant is threatening self-harm in light of the Federal Court’s finding that it does not consider that self-inflicted harm constitutes ‘harm’ for the purpose of s 36(2)(aa) and s 36(2A). The Tribunal finds that voluntary suicide is not serious harm for a Convention reason for the purpose of s 36(2)(a) nor significant harm for the purpose of s 36(2)(aa) and s 36(2A). The Tribunal understands that the applicant would prefer to remain in Australia but, based on the evidence before it, the Tribunal is not satisfied that the applicant’s mental health will so impact her ability to work and care for herself as to amount to a real chance of serious harm or a real risk of significant harm if she returned to India now or in the foreseeable future.
Regarding the second named applicant, in a letter dated 12 July 2022, [Dr G], General Practitioner, states that:
I am writing to state that [the second named applicant] suffers from [Medical Condition 1] and is stable on his medication. His current medications are [specified].
No other information was provided.
The Tribunal has considered [Dr G]’s letter to the extent it provides a professional opinion from a General Practitioner. On the information provided, the Tribunal is satisfied that the second named applicant has a medical diagnosis of [Medical Condition 1] and that he is stable on his medication.
The Tribunal considered whether the second named applicant would have access to the required medical care to treat his [condition] in India. The country information reports that ‘access to mental health care is difficult and patients are subject to stigma and discrimination.’[3] It further reports that the Mental Healthcare Act 2017 (India) contains a ‘right to mental health care’ and there have been other policy and programmatic interventions.[4] However:
[a]ccess to mental health care is not uniform across the country, with availability of services significantly more limited in rural areas than in urban cities and large towns. Across the country, an estimated 150 million people (12.5 per cent of the population) are in need of active interventions for mental illnesses, including nearly 12 million who are living with serious mental disorders. Given the shortfall of specialist and health services for mental illness, treatment is often unavailable or inaccessible even for those who actively seek health care.[5]
[3] DFAT DFAT Country Information Report India 10 December 2020 16 (‘DFAT’).
[4] Ibid.
[5] Ibid.
The Tribunal notes that the applicant lived in and has a house in Jalandhar, a city with an estimated metro population of 1.2 million people,[6] a district hospital and two neuropsychiatry hospitals.[7] The Tribunal is satisfied that as a resident of an urban city, the second named applicant would have access to mental health care.
[6] Census Organization of India, ‘Population Census 2011’ Government of Punjab, India, ‘Punjab Health Systems Corporation’
The Tribunal also considered whether the second named applicant would have access in India to the medications used to treat his [condition]. Based on the information from [Dr G], the second named applicant’s medications are [specified]. Both medications are listed on India’s essential medicines national list[8] and are available through Janaushadhi Kendras (Kendras), which are dedicated outlets that provide generic medicines at affordable prices. There are 7 Kendras in Jalandhar.[9] The Tribunal is satisfied that the applicant can access the medication to treat his [Medical Condition 1] in India. From the information provided at the hearing that the second named applicant works in Australia as a [Occupation 2] and worked in India in [Occupation 1], the Tribunal is satisfied that his diagnosis does not affect his ability to work. Based on the evidence before it, the Tribunal is not satisfied that the second named applicant’s mental health will so impact his ability to work and care for himself as to amount to a real chance of serious harm or a real risk of significant harm if he returned to India now or in the foreseeable future.
[8] Ministry of Health & Family Welfare, India ‘National List of Essential Medicines 2022’
[9] Janaushadhi Kendras are administered by the Pharmaceuticals & Medical Devices Bureau of India >
Having regard to the applicants’ ability to detail their claims and respond appropriately to questions and concerns raised at the hearings, and to the opportunity afforded to them in two hearings as well as their competent representation, the Tribunal is satisfied that in the context of their mental health symptoms as accepted that the applicants were given a real and meaningful opportunity to appear before the Tribunal to give evidence and present arguments.
Concerns with claims
In determining whether the applicants are entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. In assessing the credibility of the applicants’ claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims[10] and it has had regard to the Tribunal’s guidelines on the assessment of credibility in protection visa matters. If the Tribunal makes an adverse finding in relation to a material claim made by the applicants but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[11] However, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[12]
Delay in seeking protection
[10] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2001 at paragraph 196.
[11] MIMA v Rajalingam (1999) 93 FCR 220.
[12] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
The applicant and second named applicant arrived in Australia in May 2009.
They did not apply for protection until April 2016, almost seven years after arriving in Australia.
The Tribunal is aware that there are a multitude of plausible and credible reasons why applicants may not seek protection as soon as they arrive in Australia. However, it is well established that a decision maker may consider the question of delay between an applicant arriving in Australia and seeking protection.
At the first hearing, when asked about the delay in applying, the applicant explained that she felt relief on arriving in Australia and after her student visa expired, she had bridging visas. She also claimed that she tried to obtain a lot of guidance but she couldn’t and everyone was asking for a lot of money, and that every three months she was getting a bridging visa.
As discussed at the second hearing, on 18 August 2011 the applicant applied for a VC 485 skilled graduate visa. This was refused on 21 June 2012 and on 7 August 2012 she sought review of that refusal before the Migration Review Tribunal (MRT), which affirmed the refusal. The applicant then appealed the decision three times through the courts. After her appeal was dismissed by the Full Federal Court in [2015], the applicant applied for Ministerial intervention. The Department advised her that it would not refer it to the Minister in March 2016 and the applicant lodged the protection visa application the following month.
At the hearing, the applicants claimed that they did not apply earlier because they did not want a protection visa in general and because they were protected by being in Australia. The applicant said that they were already in Australia and studying and that is why they delayed as long as they did, in the hope of some other choice or some other government option opening up for people who had already studied in Australia for a year.
The applicant said that the protection visa is not a very good visa, especially for the Indian community. She said that she wanted to make it by her skills, to do it by herself, but she could not due to her circumstances. The applicant said that they never wanted a protection visa, that it would always be their last choice.
In the submission dated 28 July 2023, the representative claimed that the applicants’ delay in lodging their protection visa application was ‘logical’ as they had intended to use the student visa pathway to progress to other visas with the hope of applying for permanent residency through other streams such as a skilled visa. The representative claimed that this delay was paired with the fact that protection visas and those who apply for them do not have a good reputation.
In the context of the applicant’s claimed fear, the considerable delay is concerning. What is of further concern is that when the applicant’s application for a skilled graduate visa was refused in June 2012, rather than seeking protection at this point, the applicant pursued a temporary skilled graduate visa through the MRT, the courts and to Ministerial intervention before applying for protection four years later. The Tribunal considers that this behaviour is not explained by the applicants if their claims are true, but rather, if the applicants were genuinely in fear of return, they would have sought protection at some point earlier than when they did apply, and their genuine fear would have outweighed any perceptions about the reputation of protection visas and protection visa applicants. The Tribunal finds that their reasons for this delay are implausible.
The very significant delay in the applicants seeking protection causes the Tribunal to doubt their claims to fear harm on return. The Tribunal does not accept that persons genuinely in fear of being harmed on return would not seek a more permanent option to remain in Australia earlier than the applicants did.
Student visa application
Department records show that the applicant first applied offshore for a VF 475 Skilled – Regional Sponsored visa in March 2008. At the hearing she said that this was not correct. She said that she applied for the student visa in 2008 and received it in 2009. Department records show that the applicant applied for a student visa on 18 February 2009 and it was granted on 9 April 2009. The Tribunal gives greater weight to the Department records and finds that the applicant applied offshore for a skilled regional sponsored visa before applying for a student visa.
At the hearing, the applicant was asked if she intended to go back to India at the end of her study. She said that she did not because of her marriage and also because she wanted to do the course and for a better future.
As discussed at the hearing, the applicant’s student visa application indicates that her widowed mother and brother provided the financial support for the applicant to study in Australia, rather than her husband as claimed.
In the decision record, a copy of which was provided by the applicant, the delegate records that when this was raised with the applicant at her interview, the applicant provided several conflicting and confusing responses. She denied furnishing fraudulent documents to secure a student visa in Australia. She initially claimed her husband paid for the visa and then that he provided everything to an agent who did the paperwork. She also claimed that the agent told her husband he could not provide evidence of the funds and this needed to be provided by her parents. The applicant then claimed she provided all the necessary details to the agent to enable him to get the necessary evidence from her parents and/or their bank.
When discussed at the hearing, the applicant asked how her brother could be the guarantor because he was unemployed like her. She said that they all depended on her father and that her mother is not a widow. When asked about her brother working at [Business 1] Laboratory for five years, as claimed in the student visa application, the applicant claimed that there was no connection with the laboratory and her brother was just sitting in the [Business 1] shop, which was inherited from her grandfather. When asked who her agent was, she said she did not know, her husband knew.
At the hearing, the applicant said that her father’s [store] was called [Business 1] and she said that [City 1] is not a very big city and there is no street number or exact address, that they used the house address [Address 2], [City 1]. When asked if her home was above or next door to the [store], she said that it is adjacent, that it is a big building. She claimed that there was [another kind of] store next door to [Business 1] and her family owned that property too. The Tribunal explained that it had looked for [Business 1] and the only [Business 1] it could find on Google maps was in Ward 12 [in City 1]. The applicant said that her house was in Ward 6. She also said that when she left the store was in Ward 6 but maybe they moved. She said they might have upgraded the shop, she did not know. The Tribunal explained that [Business 1] had [material identified with Sikhism][13] and the applicant said her family would never do that.
[13] [Details deleted].
The second named applicant said that he sold 1 acre of land that he had inherited for 2 million rupee. He said the conversion rate at the time was 30 rupee to the Australian dollar. He retained another acre of land that his mother manages. He used about half the money from the sale to fund coming to Australia and left half for his mother. He said that he used an agent in Jalandhar, where he lived, to apply for the student visa but he could not remember the agent’s name. He said he did not know directly, that it was a cash job by his friend and he could not say ‘this company’. He said it was a long time ago, that his childhood friend referred him and he only had to pay money.
The second named applicant said that bank managers are paid by the agents so that when the Embassy contacts them, they show the Embassy that you have money in the bank. When the Tribunal said that the file showed that $7,000 was paid to the education provider and the applicant’s mother and brother were guarantors for the rest, the second named applicant said that is how you can go to Australia, you pay money and they organise. He said that other people would do it too, it was not just him. He said that there is a lot of corruption in India and travel agents make deals with bank managers.

When the Tribunal asked how the application included the applicant’s mother and brother as guarantors, the second named applicant said it is a long time ago and asked if the Tribunal had asked the applicant. He then said that the applicant provided him with something and that the details were also given to the agent.
At the second hearing, the representative claimed that in interviews with the department the applicant had been very honest in saying that the information in the student visa application was not correct. In her submission dated 28 July 2022, the representative claimed that the applicant ‘has not denied the fact that the student visa contained incorrect information’ and that her being open about the false information supports the applicant’s credibility. The facts as outlined above do not support the representative’s assertion that the applicant was open or honest about providing false information. Only after the issue was raised at the interview by the delegate did the applicant claim that she had provided false information in her student visa application.
The Tribunal has carefully considered the evidence from the applicant and the second named applicant and the country information that says that corruption remains a part of daily life in India and that facilitation payments and bribes are common.[14] However, neither applicant was able to satisfactorily explain why the applicant’s mother and brother’s details were provided as guarantors and not her husband’s. The Tribunal finds the applicants’ explanations implausible and it is not satisfied that they provided false financial information on the student visa application. Based on the applicant’s student visa application, the Tribunal finds that the applicant’s widowed mother and brother were the guarantors for her student visa application and that her father died before the applicant applied for the student visa. The Tribunal is satisfied that the applicant and second named applicant travelled to Australia with the knowledge and support of the applicant’s mother and brother. Having found that the applicant’s widowed mother and brother knew of, supported and were guarantors of her student visa application, the Tribunal finds that the applicant’s claims to fear being harmed or killed by her late father, her brother, uncles, other family members or the community are not credible.
Family opposition to the marriage
[14] DFAT (n 3) 14.
The applicant claims to fear harm from her family because she married outside her caste and her religion when she married the second named applicant. She claims to fear harm because of her parents’ religious, political and traditional views about maintaining status in the community and that she, her husband and her daughter will become victims of ‘honour killing’.
In the submission dated 29 June 2017, the representative claimed that the applicants registered their marriage [in] 2007. She further claimed that
At the Marriage Registration Office in Jalandhar, the applicant’s extreme fear for her life, and of her husband’s, led her to uncharacteristically and reluctantly sign on behalf of her parents on the registration form.[15]
[15] Ibid.
In the applicant’s submission dated 6 April 2017, the applicant claimed that her family had strong connections with Shiv Sena political party, an ultra-nationalist Hindu party based in Maharasthra state.
As recorded in the decision record, a copy of which was provided to the Tribunal, during her interview with the delegate the applicant was unable to provide any information about Shiv Sena, any knowledge of her family’s involvement or activities, or explain how she believed her family was closely aligned as claimed. Based on the extremely limited information provided, the delegate did not accept the applicant’s claims.
In the representative’s submission dated 19 July 2022, the applicant claimed strong family connections to Shiv Sena, that her father had been actively involved in support of Shiv Sena for as long as the applicant could remember, that he would receive and make large volumes of telephone calls during election campaigns to employ locals, and he would regularly meet with other party members and often not arrive home until midnight.
At the first hearing, the applicant claimed that there used to be a lot of BJP meetings at her home and that her father was the head. After the first hearing, in the representative’s submission dated 3 August 2022, the applicant claimed that her father and possibly her brother were/are members of BPJ and that the applicant’s father was appointed the General Secretary in the 1970s. No corroborative evidence, such as information about previous office holders, was provided to support this claim. The applicant claimed that there was a photograph of her father with Tikshan Sud, a BJP politician. The applicant and representative reviewed photographs on BJP’s Facebook page and claimed that the applicant is confident that she identified two men who resemble her family members. The representative submitted four photographs from BJP’s Facebook page with red arrows pointing to the ‘suspected’ father and brother.
At the second hearing, the Tribunal discussed its concern that the applicant did not mention that her father had any connection with BJP until the hearing. The second named applicant said that BJP and Shiv Sena are like allies and that they are all very much together, while the applicant said they are together, they sit together. The second named applicant then claimed that the applicant does not know how the parties work. The applicant then said that where she lived there are no Sikh families and no Sikh homes and they are very strict with their religion. The Tribunal discussed that one of the purported photos of her father showed a Sikh man wearing a turban in the group and the applicant explained that it was just a welcome party, they are welcoming someone new.
The Tribunal accepts that BJP and Shiv Sena are Indian political parties that have some political views in common but it does not accept that BJP and Shiv Sena are interchangeable. The applicant did not provide any credible evidence of her father’s or brother’s involvement in a political party. Based on the applicant’s inconsistent and varying claims about which political party her father was a member of or supported and the form that support took, the Tribunal does not accept her evidence that her father, her brother or her other family members had or have strong connections to Shiv Sena or BJP. Having found that the applicant’s father, brother and other family members did not and do not have strong political connections, the Tribunal does not accept the applicant’s claim that her family could act with impunity because of her father’s strong political links to Shiv Sena and BJP or that the police were or are ‘hand in glove’ with her father.
Inter-religious marriage
The Tribunal has accepted that the applicant was raised a Hindu and married a Sikh. At the hearing, the applicant said that she is now a Sikh and that her husband is raising their daughter as a Sikh. The Tribunal has considered whether there is a risk of harm to the applicant as a Hindu convert to Sikhism if she returned to India now or in the reasonably foreseeable future.
Based on the information from the applicants, including their home addresses recorded in their passports and the evidence at the hearing, the applicant and second named applicant resided in Punjab and the second named applicant owns a house in Jalandhar and an acre of land that his mother manages. The Tribunal is satisfied that the applicants would return to Jalandhar, Punjab.
According to India’s most recent census, there were 20.8 million Sikhs in India in 2011 and Sikhism is the dominant religion in Punjab (approximately 16 million people),[16] where Sikhs make up 54 per cent of the population.[17] ‘DFAT assesses Sikhs in India generally face a low level of official and societal discrimination and violence.’[18]
[16] DFAT (n 3) 33.
[17] United States Department of State International Religious Freedom Report for 2021.
[18] DFAT (n 3) 33.
Country information reports that inter-religious marriage in India is less common than inter-caste marriage, and that Punjab is one of the states with the highest rates of inter-religious marriage, accounting for 7.3 per cent of marriages.[19] Country information also reports that, especially in rural areas, inter-religious marriages are ‘frowned upon’[20] but that younger Indians are increasingly aspiring to choose their marriage partners and enter into ‘love marriages’.[21]
[19] Kumudin Das et al. ‘Dynamics of Inter-Religious and Inter-Caste Marriages in India’ Paper prepared for the 2011 annual meeting of the Population Association of America, Washington, DC, 31 March–2 April 2011.
[20] ‘India's Top Court Overrules Annulment in 'Love Jihad' Case’ Agence France-Presse 8 March 2018.
[21] Michael Safi, ‘Love Commandos: Guardians of Forbidden Romance Accused of Extortion’ The Guardian 15 February 2019.
DFAT reports that inter-caste and inter-faith marriages are legal but in practice ‘there is a continued and growing intolerance in Indian society’ and one reason for this social disapproval is that inter-faith marriage generally takes place after one of the parties converts to the other’s religion. DFAT reports that ‘conversion has been and remains a sensitive issue.’[22]
DFAT assesses the treatment of people in inter-faith and inter-caste marriages varies according to the families involved. It can range from approval in some families, to disapproval, ostracism, harassment, or violence (sometimes lethal). DFAT assesses that, in most cases, couples in mixed unions will experience some form of societal and official discrimination. DFAT assesses the risk of violence that can result in death of one or both of the parties to the mixed marriage is higher in communities in which Khap Panchayats operate.[23]
[22] DFAT (n 3) 43–44.
[23] Ibid 44.
Noting that the applicant’s mother-in-law accepts their marriage, that Sikhs make up the majority of the population in Punjab and that the Tribunal has found that the applicants would return to Jalandhar, the Tribunal finds that there is no real chance the applicant would experience serious harm and no real risk that she would suffer significant harm if she returned to India now of in the foreseeable future as a result of her conversion to and practice of Sikhism.
Change of name
The applicant’s husband changed her family name to [FamilyName 1] in 2009. In 2014, he changed her given name to [GivenName 2] and they changed both their family names to [FamilyName 2] because, the applicant claimed, people used to ask why she was called [FamilyName 1]. The second named applicant explained that [FamilyName 2] was his father’s family name. The applicant claimed that the name changes were so they could not be found by her family.
At the first hearing, the applicant claimed that she had only changed her name in Australia and not in India. The second named applicant also claimed that their name change was only in Australia. At the second hearing, the Tribunal discussed with the applicant that her Indian passport was issued in her current name, [Ms D]. The applicant claimed that, as the passport was issued in Australia, her name had not changed in India.
The Tribunal does not accept the applicants’ reasoning. Based on the applicant and second named applicant’s names recorded in their Indian passports, the Tribunal is satisfied that the applicants’ current names are their legal names in India. The Tribunal considers that there are many reasons why people may change their names and notes that at the hearing the applicant claimed she changed her name from [FamilyName 1] because of community comment. Given that the two applicants changed their family names in 2014, the Tribunal is not satisfied that the name change was linked to any fear of harm. The Tribunal does not accept that the applicants changed their names because they fear being found by the applicant’s family.
No visits to or from India
The applicant claimed that her and the second named applicant not visiting India when they had travel rights supports her claim to fear harm. She said that, even though she had travel rights on her student visa, she did not return to India because she was afraid of the males in her family – her father, younger brother, uncle and cousins. She claimed that she has not contacted her mother since she left India as she is concerned that if her father found out about her marriage, he would punish her mother for her perceived bad behaviour.
The applicant also claimed that the fact that members of her family had not visited Australia, even with the birth of her daughter, is evidence that she is not in contact with them, because in Indian culture a child’s birth would normally lead to family visits.
In the statement dated 19 July 2022, the representative submitted that ‘the Applicant’s husband’s mother is fully aware and accepting of their inter-caste marriage. There are no issues between the applicant’s mother-in-law and the applicant on the grounds of their love marriage.’ The Tribunal asked the second named applicant why his mother had not visited Australia. He claimed that it was just by chance, that she was never interested and did not ask for it.
The Tribunal accepts that the applicants have not left Australia since they arrived in 2009. The Tribunal accepts the evidence that the applicant’s mother-in-law accepts their marriage and the second named applicant’s evidence that his mother is not interested in visiting Australia. The Tribunal notes that it is unable to verify whether or not the applicant’s family members have visited Australia as the applicant does not know her mother’s or father’s date of birth nor her brother’s year of birth. Even if it is the case that the applicant’s family has not visited Australia, based on the information before it, the Tribunal is not satisfied that the applicant’s family not visiting Australia is evidence that the applicant is not in contact with her family, nor is the Tribunal satisfied that the applicant and second named applicant not visiting India confirm her claims to be true. The Tribunal gives this claim little weight.
Threatening telephone call
The second named applicant claimed that three or four months before the hearing he had received threats on the phone. He said that he was not bothered but his wife said that he must go to the police and he has a police report. The Tribunal invited him to submit it.
He claimed that he received a call from a no-caller-ID number from a man speaking Punjabi who started with swearing and then said I know who you are and where you live, and that wherever I see you I will beat you and kill you. He claimed that the caller knew he was in [location]. The second named applicant said that the man did not use his name and he did not know why he would make the call. He said that he was very scared and that the police advised him to only accept calls from his contacts and he has not received any other calls. He speculated that someone could find him on social media. When asked what social media he uses, the first time he did not answer and the second time he spoke about WhatsApp.
The representative submitted a police calling card, an FOI application and an FOI response from SAPOL.
The Tribunal accepts that the second named applicant received a call from an unknown caller who made general threats and that he reported that call to the police. The Tribunal notes that the caller did not use the second named applicant’s name, he did not say why he was threatening him nor how he planned to carry out the threat. The Tribunal gives the call little weight as there is not enough information about the threat to establish any connection to the applicant’s family or link to her claims.
Witnesses
Within a month of arriving in Australia, the applicant and second named applicant began sharing a home with [Mr A] and they have remained living there even though he is now in a nursing home. At the first hearing, the Tribunal spoke with [Mr A] and [Ms B]. [Mr A] presented as confused at the hearing. He explained that he has made sure the second named applicant had a place to stay and enough to eat. He also thought that the third named applicant was getting married. His sister clarified for him that the third named applicant was still a child and the Tribunal thanked him for his contribution.
[Ms B] said that she wanted to support the applicant’s application. She said that she had known them about 13 years, since they came to live in the unit that she and her brother own. She said that her brother has paranoid schizophrenia and since they have been living with him, it has been so beneficial to him. She said that she has appreciated everything that they have done for [Mr A] and that having the baby (the third named applicant) enabled [Mr A] to experience that aspect of family life that he otherwise would not have known.

100. [Ms B] said that the applicant has always worked hard and prepared to offer any help needed and that the second named applicant is good company and good for an argument. When asked if she had any comments to make about their protection claims, [Ms B] said that she did not quite understand it. She said that some time ago she asked if the applicant would consider returning to India, even for a visit, so her daughter could spend time with her grandparents, uncles, aunts and cousins. She said the applicant implied that returning to India would put her and her family in grave danger and [Ms B] did not pursue it. She said that she thinks the applicant has done a wonderful effort in maintaining her sanity, helping her husband through his mental health and bring up their child.
101. The Tribunal found [Ms B] straightforward and direct and accepts that she finds the applicant hardworking, helpful and diligent. However, the Tribunal does not accept that [Ms B’s] evidence about the applicant’s claims in any way strengthens the applicant’s claims, given that [Ms B’s] evidence is solely based on what the applicant has told her.
Conclusions on credibility
102. The Tribunal has carefully weighted the claims made by the applicant against its concerns above. Having carefully considered the claims of the applicant, the documents provided and the actions of the applicants, the Tribunal finds the applicant’s claims are not credible. The Tribunal finds that the applicant’s claims of fearing harm lack plausibility and credibility.
103. On the basis of the lack of credibility and plausibility, the Tribunal does not accept that the applicant’s family or community were unaware of or opposed to her marriage to the second named applicant.
104. The Tribunal does not accept that the applicant forged her parent’s signatures on her marriage registration form.
105. The Tribunal does not accept that the applicant’s father is alive.
106. The Tribunal does not accept that the applicant’s family would seek to harm the applicant, her husband or her daughter if they returned to India.
107. The Tribunal does not accept that the applicant’s father, brother or anyone else in her family was or are workers or members of BJP or Shiv Sena, that they had or have strong political links to Shiv Sena and BJP, or that the police were or are ‘hand in glove’ with her father.
108. The Tribunal does not accept that persons genuinely in fear of being harmed on return would not seek a more permanent option to remain in Australia earlier than the applicants did.
What is accepted?
109. The Tribunal accepts that the applicant and second named applicant are married and that the third named applicant is their daughter.
110. The Tribunal accepts that the applicants are citizens of India.
111. The Tribunal accepts that the third named applicant is a citizen of Australia and, as such, she is not eligible for a protection visa.

112. The Tribunal accepts that the applicant has converted from Hinduism to Sikhism and the third named applicant is being raised as a Sikh.
113. The Tribunal accepts that the applicant self-reports suffering psychological symptoms as detailed in [Ms H]’s letter but notes that there is no clinical or medical diagnosis of a medical condition.
114. The Tribunal accepts that the second named applicant has [Medical Condition 1] and that he is stable on his medication.
115. The Tribunal accepts that the applicant’s widowed mother and brother provided the financial guarantee to fund her study in Australia.
Is there a real chance any of the applicants will suffer serious harm amounting to persecution if they return to India?
116. On the basis of the Tribunal’s findings above, the Tribunal finds that if the applicants return to India they will return as a family. They will return to Jalandhar where the second named applicant has a house and where his mother lives, so they will have family support. While the family, and particularly the daughter, will have some difficulties adjusting to living in India, the Tribunal finds that the family support will mitigate this difficulty.
117. The Tribunal does not accept the claims of the applicant that her family will target her because of her marriage. The Tribunal finds that there is no real chance that the applicant will be harmed by her father, brother, uncles, cousins, anyone associated with BJP or Shiv Sena, or anyone else for reasons of her marriage and conversion to Sikhism now or in the reasonably foreseeable future.
118. The Tribunal finds that there is no real chance that the second named applicant will be harmed by anyone for reason of his marriage or for any other reason on his return to India now or in the reasonably foreseeable future.
119. The Tribunal finds that there is no real chance of the applicants individually or as a family suffering serious harm if they return to India now or in the reasonably foreseeable future.
Is there a real risk of any of the applicants being subjected to significant harm if they are removed from Australia to India?
120. The Tribunal has found that there is no real chance that the applicant will be harmed by her father, brother, uncles, cousins, anyone associated with BJP or Shiv Sena, or anyone else for reasons of her marriage and conversion to Sikhism now or in the reasonably foreseeable future. The Tribunal has also found that there is no real chance that the second named applicant will be harmed by anyone for reason of his marriage or for any other reason on his return to India now or in the reasonably foreseeable future.
121. On the basis of the same reasoning, the Tribunal finds that there is no real risk the applicant or second named applicant will suffer significant harm from any of those identified if they are removed from Australia to India.
122. The Tribunal finds that there is no real risk of the applicants individually or as a family suffering significant harm if they return to India now or in the reasonably foreseeable future.
CONCLUSION
First named applicant
123. For the reasons given above, the Tribunal is not satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
124. Having concluded that the first named applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion of s 36(2)(aa). The Tribunal is not satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
125. There is no suggestion that the first named applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies ss 36(2)(a) or 36(2)(aa) and who holds a protection visa. Accordingly, the first named applicant does not satisfy the criterion in s 36(2).
Second named applicant
126. For the reasons given above, the Tribunal is not satisfied that the second named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
127. Having concluded that the second named applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion of s 36(2)(aa). The Tribunal is not satisfied that the second named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
128. There is no suggestion that the second named applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies ss 36(2)(a) or 36(2)(aa) and who holds a protection visa. Accordingly, the second named applicant does not satisfy the criterion in s 36(2).
Third named applicant
129. For the reasons given above, as an Australian citizen the third named applicant cannot be granted a protection visa.
DECISION
130. The Tribunal affirms the decision not to grant the applicants protection visas.
Katherine Harvey
Senior Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 3669

28 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Natural Justice

Standing

Statutory Construction