2008488 (Refugee)

2008488 (Refugee) [2024] AATA 1784 (12 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2008488
COUNTRY OF REFERENCE:                   India
MEMBER:Louise Nicholls
DATE:12 March 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 March 2024 at 4:21pm
CATCHWORDS
REFUGEE – protection visa – India – Federal Circuit Court remittal – father and uncle in illegal drug trade – applicant and brother used as couriers before brother killed – fear of harm from rival gangs – arrived as unaccompanied minor – applied after student visa refused and period as unlawful non-citizen – vague and inconsistent claims and evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65, 426A(1A)(b), 430
Migration Regulations 1994 (Cth), Schedule 2
Administrative Appeal Tribunal Act 1975 (Cth), ss 19A(1), 19D(4)
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

The applicant claims to be a citizen of India and is [Age] years old. He was born in the Indian state of Haryana. He came to Australia as the holder of a visitor visa [in] April 2016.
The applicant applied for a protection visa on 27 October 2017. The applicant provided a copy of the biodata page of his Indian passport issued [in] 2014 and an Indian identity card.
The applicant attended an interview with a delegate of the Minister for the Department of Immigration and Border Protection on 10 November 2017.
On 22 November 2017 the delegate refused to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act) because the delegate was not satisfied that the applicant met the requirements for that visa.
This is an application for review of that decision, and it was made on 29 November 2017. The applicant provided a copy of the delegate’s decision with his application.
On 4 April 2018 the Tribunal, differently constituted, dismissed the application for review pursuant to s.426A(1A)(b) of the Act because the applicant failed to appear before the Tribunal at the time and place of the scheduled hearing date. On 20 April 2018 the Tribunal confirmed the decision to dismiss the application pursuant to s.430 of the Act and affirmed the decision.
On 12 May 2020 the Federal Circuit Court (as it was then) quashed the decisions and remitted them to the Tribunal and directed that the Tribunal hear and determine the application of the applicant for review of the delegate’s decision refusing to grant him a protection visa.
The Court found that the Tribunal, differently constituted, had exercised its discretion to dismiss unreasonably given the known circumstances of the applicant as an unaccompanied minor. The Tribunal had not demonstrated careful consideration of the applicant’s circumstances and did not evidence any weighing of competing considerations before it proceeded to dismiss the decision.
The matter is now before the Tribunal pursuant to s.19A(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). Where a direction is given to reconstitute the Tribunal, the Administrative Appeals Tribunal Act requires the reconstituted Tribunal to continue the proceeding.[1]
[1] s.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015).
The applicant provided the Tribunal with a copy of the delegate’s decision record. He did not provide any other documents to support the review.
The applicant appeared before the Tribunal on 6 December 2023 to give evidence and present arguments. The applicant’s friend attended the hearing as a support person and did not give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
The applicant gave evidence about his background, his migration history and his claims for protection. The Tribunal observed that the applicant’s evidence was limited and lacking in relevant detail.
Before the Tribunal hearing the applicant’s representative had advised he was no longer acting for the applicant in relation to the review. No formal withdrawal of representation was submitted by the applicant; however, the representative had ceased to act and took no part in the hearing and did not provide any documents or submissions.
The Tribunal has reviewed the audio recording of the hearing prior to making its decision.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complementary protection.
The relevant law is set out in the attachment.
Background
In the application for protection the applicant stated he was born in [Town], Punjab State[2], India. The applicant can speak, read and write in Punjabi and Hindi. The applicant states that he is of Sikh ethnicity and of Sikh religion. The applicant has never married or been in a de facto relationship.
[2] [Town] is located in Haryana State, India. [Town] was originally in Punjab State until the state was divided in 1966 into two states: Punjab State and Haryana.
At the Tribunal hearing the applicant stated he is [Age] years old and was born in a village in Haryana. His parents are still living in their home in the village. His mother is a housewife and he claimed his father was a drug dealer. When the Tribunal sought further evidence about whether his father had another occupation, he stated he did not know.
He has two sisters living in India. One sister is divorced with one child and they live with his parents in the village. His other sister is married and lives with her in laws.
He told the Tribunal he went to a government school in Haryana and finished school in Year [Number]. After he finished school, he stayed at home before he travelled to Australia.
Country of reference
The applicant claims he was born in, and is a citizen of, India. He provided a copy of his Indian passport which was issued [in] 2014 as well his Indian identity card. He has consistently claimed that he is of Indian nationality, and he was familiar with the geography and culture of Haryana State, India.
Taking into account the available evidence, and noting there is no issue as to identity or nationality, the Tribunal is satisfied that the applicant is a citizen of India and that India is the receiving country for the purpose of s.36(2)(aa) of the Act.
What are the applicant’s claims?
The applicant’s claims are set out in the application for protection which was completed while the applicant was being held in detention. At that time, he was represented by a registered migration agent.
The applicant discussed his claims for protection with the delegate at an interview on 10 November 2017.
The applicant gave oral evidence concerning his claims at the Tribunal hearing held on 6 December 2023.
The applicant’s written claims are that if he returns to India he faces serious harm because his father and uncle were involved in the illegal drug trade and he would be forced to continue to be involved in his family’s drug activities if he returned to India. He fears harm from gangs or drug addicts if he continued that involvement.
At the hearing the applicant claimed to fear serious harm from a gang. When asked why he thought he would be targeted he stated it could be because of his father’s problems. He referred to his brother’s death and claimed his brother was killed by the [Gang name] gang.
The applicant’s migration history
The applicant was granted a visitor visa on 30 March 2016. He arrived in Adelaide [in] April 2016. On 1 July 2016 he applied for a student visa onshore which was refused on 15 November 2016. On 6 December 2016 he applied for review of the student visa refusal but his application was out of time and the Tribunal had no jurisdiction to consider his application. His bridging visa ceased on 10 March 2017.
On 10 October 2017 he was located by compliance officers of the Department and detained in [Detention centre]. He attended compliance and detention interviews in October 2017. On 27 October 2017 he applied for protection whilst held in detention. He attended an interview with the delegate on 10 November 2017 and later transferred to detention in Victoria and then in Brisbane. He was later released from community detention on 9 September 2020.
Assessment of evidence.
In his application for protection dated 27 October 2017 the applicant claimed that his paternal family were involved in the illegal drug trade in India and his father and uncle are drug dealers. He stated there were many fights in his area involving firearms. He does not want to be part of the illegal business and claimed his life is in danger.
He fears if he returned to India his family will involve him in the illegal drug trade and he fears he could be killed or abused by drug addicts or rival gangs.
He claimed his [Age]-year-old brother was killed by a rival gang and his body disposed of in an area next to the applicant’s village [in] June 2015. The police were not involved because corruption is widespread in India, and the police do not register complaints unless they are bribed.
At the time he made his application he stated he was a minor and could not relocate in India and would have had to return to live with his family. Further he had no education or work experience which would have enabled him to settle elsewhere.
In the interview with the delegate in November 2017 he stated his family was selling illegal drugs in India. His father and uncles are known drug dealers in their area. They used him and his older brother as drug couriers to deliver drugs to clients.
He did not know which particular kind of drugs he was distributing. Drugs were a white powder packed in small plastic bags. His father would put them into his backpack and let the applicant take them to school. Before going to his class, the applicant would hand over the drugs to persons whose first names were given him by his father. He was not collecting money from drug buyers.
He does not want to return to India where he fears he would be used as a drug courier by his father and uncles. They were involved in shooting fights in which people were injured or killed. Police do not disturb them because they are paid by drug dealers.
If the applicant returns to India, his family will once more use him to deliver drugs. He fears he will be killed by rival gangs like his brother. His brother was [Age] years old when he was killed by the [Gang name] gang and his body was dumped in a neighbouring village [in] June 2015.
This happened before his family hired a travel agent to arrange his trip to Australia. The idea of travelling to Australia came from his mother but he went willingly because he wanted to get away from dangerous drug runs. The trip was arranged very quickly; the whole process took about one week. His father did not object to his trip, but he expected him to be away for a short time only. When the applicant failed to return, his father became enraged. He demanded the applicant return and once more assist with drug deliveries or else be expelled from home.
The applicant has little communication with his father; he mostly talks on the phone with his mother.
The local police are corrupt and will not offer protection to the applicant. The local police visited their home once or twice and, on one occasion, detained his uncle. They released him soon after. His father has never been arrested or charged.
He has no education or work experience permitting him to settle in another part of India. All his relatives live in the same village he has come from.
In Australia, the applicant arrived in Adelaide in 2016 and then moved to Sydney because he has a cousin in Sydney.
At the Tribunal hearing the applicant was advised why his application had been remitted by the court and returned to the Tribunal for determination.
The applicant gave evidence he came to Australia [in] April 2016. He claimed he travelled by himself but met someone else at the airport and they travelled together. He first arrived in Adelaide and then he later travelled to Sydney to stay with his cousin.
He initially travelled to Adelaide because his visa was granted for the purpose of attending a [training academy] in Adelaide. When asked if that was the reason he came to Australia he stated that his agent made all the arrangements and he did not know the details. He did not attend the academy for training and did not remain in Adelaide. The [academy staff member] organised his travel to Sydney to join his cousin. He could not explain why his [staff member] had made the arrangements; he thought that perhaps the agent had organised it.
The Tribunal put it to him that he would have required his parents’ permission to travel to Australia because he was [Age] years old when he travelled. He stated he did not know much about the details, but they may have given their permission.
The Tribunal asked him if he knew why his parents had obtained an Indian passport for him when he was [Age] years old. He did not know the purpose of the passport and he thought his mother may have organised it.
He claimed he has a maternal uncle living in Sydney and he was his guardian while he was under the age of 18 years. His uncle was working with [Employer 1] but has had back problems and no longer works. When the applicant first arrived in Sydney he lived with his uncle but when he found work he moved out. He is currently working in [an Employer 2 workplace]. He lives in rented accommodation, has a bank account and a mobile telephone.
When he arrived in Sydney he applied for a student visa. His intention was to study English and then to complete Year 11 and 12 of high school studies. He stated his application was refused and after the refusal he just started to live. After his student visa was refused, he went to see a lawyer about his situation but the lawyer’s fees were very high so he did not continue with his application for another visa.
The applicant claimed he feared returning to India because he feared for his life and he did not know what would happen to him on his return. When asked why he might be harmed if he returned, he claimed when he was young his brother was killed and his mother told him a gang was involved. When asked why he thought he would be harmed he claimed it happened to his brother, a feud was continuing and anything could happen.
He suspected that the gang was supplying drugs. He claimed his brother was killed by electrocution however he could not remember when his brother died. He thought the gang had some problem with his father. He stated his brother is buried in a burial ground near his home village. He does not have any records regarding his brother’s death.
His family did not make a report to police regarding his brother’s death. He stated his parents were uneducated. In any event the police were corrupt and even if his parents had reported it nothing would have happened. When it was put to him that police in Haryana were reasonably effective, he stated that things may be better now but at the time things were not right.
The Tribunal pressed the applicant to explain what he feared and why he held those fears. He stated he had a feeling he would be killed. He stated that his father may have made a mistake and the gang would take out revenge on the applicant. The Tribunal put it to him that if that was so, why they had not taken revenge on his father. He stated he does not speak to his father, so he does not know.
The Tribunal put it to him that if he returned to India he would not have to return to live in his home village. He stated he did not have anywhere else to live and would have to return to live with his parents. The Tribunal put it to him that he had the resources to find work and accommodation in Australia and that he could similarly move to another city in Haryana where he could look for work and find a place to live. He claimed that the gang was a large gang and they could find out where he lived from other people.
The Tribunal discussed several matters of concern with the applicant.
It put it to him that during a compliance interview held in October 2017 when he was taken into detention he stated that his family owed $16,000 and he came to Australia to help earn money to repay the debt. He stated this debt was the money his mother borrowed to send him to Australia.
He also told the interviewer that his father had a mental illness. When asked why he stated his father had a mental illness, he stated the interviewer asked about his father’s health and he told him his father had mental health issues. The Tribunal observed that at that interview he did not mention any problems about illegal drugs, gangs or that he feared returning to India.
The Tribunal put it to him that he also told the interviewer it was his choice to come to Australia and that he and his family agreed he would apply for a student visa once he arrived. He stated the visitor visa had been organised by his mother.
The Tribunal put it to him that when he was interviewed in detention he was asked if there were any reasons he could not return to India. He stated there were none and he liked life in Australia and his parents wanted him to stay in Australia. When asked to explain to the Tribunal why he made this statement he claimed he was a minor at that time and did not know how to respond. He was nervous, did not speak English very well and had spoken through an interpreter. The Tribunal put it to him that he was [Age] years old and while he was young, he could understand the questions and would have been able to explain why he did not want to return to India. He stated his mother wanted him to leave India because of threats against him. However, the Tribunal put it to him that he did not mention this at the interview. He stated that he did include this information when he later lodged his protection visa application.
The Tribunal put it to him that when he made the application for a student visa in 2016 he provided documents with both parents written consent to his application. He stated that the lawyer organised that through his guardian. The Tribunal put it to him that his father had consented to his study in Australia. He stated his mother had organised the documents and he did not know how the arrangements had been made.
The Tribunal asked him to explain why in his application for a student visa he had stated his family were wealthy and he intended to return to India after he finished his studies. He stated the application form was completed by his lawyer. He stated that he did not know how to answer the questions. When asked if the lawyer had made up the answers, he stated that most of the time the answers were made up.
The applicant stated that when he applied for a student visa, he paid his education agents fees with his savings and with some from his mother. The Tribunal put it to him that his student application stated his parents were supporting him. He claimed his mother was supporting him but not his father.
The Tribunal put it to him that in his interview with an officer of the Australian Federal Police (AFP) he stated his parents knew he was travelling to Australia to attend the [academy] and that it was his and his family’s intention he would get a student visa and extended residency.
The Tribunal put it to the applicant that some of the statements made in his interviews and student application were not consistent with the claims made in his protection visa application, those being that his father did not want him to stay in Australia and was angry that he had not returned home to continue his activities in his father’s drug business. However, in his student application, it appears that his parents wanted him to stay and had signed consents and both knew he intended to stay for an extended period. He stated his mother knew he intended to remain in Australia, but his father was not aware.

The Tribunal noted he made no mention of his father’s claimed drug activities in his compliance and detention interviews.
The applicant told the Tribunal that if it had concerns regarding his brother’s death he could try to obtain his death certificate. The Tribunal told him that it was prepared to accept that his brother had died.
At the Tribunal hearing the applicant’s evidence was vague and lacked substance and coherence. The Tribunal has taken into account the applicant’s age at the time he first arrived in Australia and his relative youth when he was interviewed by officers of the Department and the AFP. However, the applicant is now [Age] years old and has lived and worked independently in Australia for a number of years. Even if he had been nervous and unsure when he was interviewed earlier it considers that he was given an opportunity to provide a coherent and detailed account of his circumstances and the reasons he feared returning to India during the Tribunal hearing. Anomalies in his evidence and inconsistencies with earlier statements and interviews were raised by the delegate and included in the written reasons for refusing his visa application. Despite having an opportunity to consider those matters and to give a satisfactory explanation for those anomalies and inconsistencies at the Tribunal hearing, he was not able to do so.
The Tribunal does not accept that the applicant’s claims that his father and uncle are involved in the illegal drug trade in India and that the applicant was forced to make deliveries of illegal drugs on their behalf before he left India for Australia. At the Tribunal hearing the applicant claimed his father was involved in the illegal drug trade but gave no further details and the Tribunal found his evidence lacked relevant and plausible detail on this claim. Further when the applicant was interviewed by officers of the Department when he was taken into detention and asked why he did not wish to return to India, he made no mention of his father’s involvement in illegal drug activities in India. At the time of the delegate’s interview in November 2017, he stated he had not mentioned this issue earlier because he did not want bring up the issue of illegal drug trading in his earlier interviews with Departmental officers. At the Tribunal hearing he did not explain why he had not made any reference to illegal drugs or his family’s involvement in those earlier interviews.
The Tribunal does not accept that the applicant’s father was angry when the applicant did not return to India after a short visit because his father had wanted him to return and continue to deliver drugs on his behalf. The applicant first came to Australia in 2016 as the holder of a visit visa with the stated intention of attending [an] academy in Adelaide. He did not attend that [academy] and admitted at the hearing that he and his mother intended he would move to Sydney and apply for a student visa. He claimed in his protection visa application that his father was not aware of his intention to remain for an extended period, however, the Tribunal does not accept this claim. The Tribunal finds that the applicant’s father consented to the applicant’s student visa application and was aware that he wanted to stay for an extended period of time. This is not consistent with the claim in his later protection visa application that his father was angry and wanted him to return to continue his involvement in illegal drug activities.
The Tribunal does not accept that if the applicant returns to India that his father will force him to continue to be involved in illegal drug activities by making deliveries on his behalf. For reasons set out above the Tribunal does not accept that his father was involved in the illegal drug trade in India and does not accept that the applicant was ever forced to make drug deliveries or that he would be forced to do so in the future.
The Tribunal does not accept the applicant’s claim that he feared he would be harmed by members of a rival gang if he returned to India. Despite being asked a number of times he could not satisfactorily explain why he would be targeted for harm by this gang. His only explanation was that members of the gang may seek revenge on him because they had problems with his father. He did not explain what sort of problems the gang had with his father or why they would seek to take revenge on him rather than his father who had been living in his family home in Haryana since the applicant left India some eight years ago.
The Tribunal accepts that the applicant’s brother died in India before the applicant came to Australia. He claimed, but the Tribunal does not accept, that his brother was killed by a rival drug gang. He did not satisfactorily explain the circumstances surrounding his brother’s death, the reasons for his claim that his brother was killed by a rival drug gang or when his brother died. He stated that his parents did not report the death to the police because the police were corrupt. If the applicant’s brother had been killed by a rival drug gang it would expect that his parents would report the death to police. If they did not report the death, the Tribunal would expect that the applicant could give a more detailed and cogent explanation for the failure to report the death and the surrounding circumstances.
Does the applicant meet the refugee criterion?
Taking into account the findings set out above in this decision and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to India now or in the foreseeable future, he faces a real chance of serious harm because of his or his father’s involvement in illegal drug activities in India.
The Tribunal does not accept that the applicant’s family were involved in illegal drug activities in India, it does not accept that the applicant was forced to make drug deliveries on behalf of his father, that his brother was killed by a rival drug gang or that the applicant would be forced to participate in his family’s claimed illegal drug activities if he returned to India now or in the foreseeable future.
As the Tribunal does not accept that the applicant’s family were involved in illegal drug activities it does not accept that he faces serious harm from a rival drug gang or addicts if he returned to India now or in the foreseeable future.
At the hearing the Tribunal asked the applicant questions about whether he could relocate in India if he did not wish to return to his home village. However, it is not necessary to make findings as to whether he could relocate because the Tribunal has not accepted that he faces a real chance of serious harm if he did return to his home village for the reasons set out above.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in section 5J(1)(a) of the Act.
Does the applicant meet the complementary protection criterion?
Having found that the applicant does not meet the refugee criterion, the Tribunal has considered whether on the evidence before it, there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to India.
The Tribunal has taken into account its findings on material questions of fact and its view of the applicant’s future conduct.
The Tribunal has found, for reasons set out above, that the applicant will not be harmed by a rival drug gang or drug addicts if he returns to India and will not be forced into involvement in any illegal drug activities on his return. There is no other claim or material which might suggest he will be at risk of significant harm for any other reason.
The Tribunal considers that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of her life, or the death penalty. In other words, the Tribunal finds no other grounds that suggest he will be subject to significant harm, for any reason, if he is removed to India.
Having considered the applicant’s circumstances 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 that that there is a real risk the applicant will suffer significant harm.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Louise Nicholls
Senior Member

ATTACHMENT -
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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.
…

[2024] AATA 1784

12 March 2024

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Immigration

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