2008678 (Refugee)

2008678 (Refugee) [2022] AATA 1693 (19 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2008678
COUNTRY OF REFERENCE:                   India
MEMBER:Mark O'Loughlin
DATE:19 April 2022
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 April 2022 at 4:36pm
CATCHWORDS
REFUGEE – protection visa – India – religion – Dera Sacha Sauda (DSS) – Majhabi Sikh – fear of harm from the Orthodox Sikh faction – credibility concerns – membership of DSS – country information – decline in political power and influence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
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 1 May 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of India, applied for the visa on 8 September 2016. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant’s claims to fear harm in India were credible.
The applicant appeared before the Tribunal on 16 December 2021 and 8 February 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In this matter the Tribunal is satisfied that the applicant is of Indian nationality.
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant’s fears about the way he will be treated in India should he return are genuine, relevant, and well founded. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal explained to the applicant that the delegate made their decision to refuse the application because they were not satisfied that the applicant’s claims about his membership of the DSS and the ramifications thereof were made out.
First Hearing – 16 December 2021
The Tribunal had observed that the claims made in the visa application dated 7 September 2016 may not reflect the applicant’s claims. In particular, in answer to question 92 (on page 21 of part C of the application), there was a reference to an attempt to get a visa to [Country 1] which failed because the applicant’s husband could not satisfy the income requirements.
It seemed clear that this submission did not relate to the applicant.
The Tribunal asked the applicant if he understood the delegate’s decision. He said that a friend had read it to him and explained it to him.
He agreed that some matters that were put in the visa application were wrong. He explained that a lady helped him with the application and some of the things she put in it were wrong.
He said that she was a Muslim lady who he met in a park. He said that she expressed concern that he looked sad and when he explained that he needed to apply for a visa, she told him she could help him do that.
He told the Tribunal that it was only in the week before his interview with the Department that a friend of his read the application to him and he realised that the answer about the [Country 1] visa application did not relate to him.
The Tribunal observes that the departmental interview was on 11 March 2020[1], about 3 ½ years after the application form had been filled out.
[1] Delegate’s decision p.3 at the second full paragraph
The Tribunal told the applicant that the claims that the delegate identified might be summarised as follows;
You are a Majhabi Sikh and a follower of the Dera Sacha Sauda (DSS) in India.
[In] July 2009 you and other DSS followers were attacked in [Village 1].
Two days later you were arrested and put in gaol along with 800 other DSS followers.
That was because you were involved in a protest against the atrocities of Sikh groups.
[In] November 2012 you and other DSS followers were attacked in Sirsa where a Sikh faction damaged vehicles belonging to Dera (DSS).
[In] December 2014 you and other DSS followers were attacked with deadly weapons during a religious gathering (a “satsang”) at your house.
Sikhs tried to stop the religious gathering and maltreated you when you resisted them.
You and other DSS followers were attacked by a Sikh mob at a demonstration against the “stopping of the satsang at the applicant’s house and maltreatment of the applicant and other followers of the Dera and the non-action of the police on your complaint”.
On the same night the applicant’s house was surrounded by Sikhs and his family were maltreated.
The applicant’s neighbours intervened and saved his family but the family were threatened that they would face consequences.
A Sikh faction trespassed in the applicant’s house and tore the poster of the film of the DSS head, Baba Gurpreet Ram Rahim that you had displayed at your house and your mother who was home alone at the time was maltreated.
On January 2015 you and other followers were attacked by a Sikh faction when the second movie of the Guru Ram Rahim was released.
The Sikh community is backed by the ruling Akali Party so police would not help you.
The applicant’s family were scared to leave the house for several days and you were sent to live with relatives in Delhi.
Then you came to Australia.
At the time of the delegate’s decision there were still occasional clashes between the armed factions of both sides and the Alakai Dal is ruling the state government so there is no scope for protection for the applicant if he goes back to India.
The applicant is threatened with his life but the local police refused to listen to his request for protection.
The applicant made a complaint to his Gram Sarpanch who assisted him in seeking assistance from the local police, the police did not help and did not take any action on his complaint.
The applicant’s answer to question 93 on the form was put to him. Effectively it says that the applicant was not able to relocate to another country because his husband does not meet a visa criterion for [Country 1].
The next claim was that the applicant’s DSS faith continues to face opposition from mainstream Sikhism and the applicant fears for his life from Orthodox Sikh faction.
That he does not think the authorities could or would protect him because Punjab is predominantly ruled by orthodox Sikh faction that have influence over the Akali Dal ruling party.
The Sikh community is backed by Akali Dal party and the DSS followers are backed by the Congress party which is the opposition party in state politics.
Based on past experience there is hardly any chance that the authorities will protect him.
The applicant does not think he would be able to relocate because it is possible that the Sikh faction would come to know of his whereabouts.
The applicant agreed that this generally summarises his claims and said that there are no further claims that he wants to make.
He said that the claim about his husband failing to qualify to go to [Country 1] was made by the lady who filled in the form for him and was wrongly included.
The applicant told the Tribunal that he came to Australia with his wife and son in April 2016. He said that at the time they were hoping that they would be able to return to India, but that his mother since told him not to come back as the situation in India was not good.
He said that people had gone to his mother’s house about 3 or 4 months after he came to Australia and asked where he was, which he said was a threat because it made his mother worried about him.
The applicant said that the threats from these people are the only things that make him believe it is not safe for him to return to India.
The applicant said that people went to his mother’s house to ask about him more than once but he has not heard of the attackers making any approaches to his family since 2019.
The applicant said despite that, his past experience was not good and that attackers have killed many people, so he is afraid to return.
The applicant said that there was nothing since the approach to his mother in 2019 that represented a further threat.
The applicant was asked about current tensions between the DSS and any other groups. He said that he does not have connections and doesn’t know much about it.
He was asked how he knows it would not be safe to return to India now. He repeated that the approach to his mother in 2019 and the fact that before then many people were killed make him scared.
The applicant was asked about the Dera and how active it has been in India since he left. He said that it is running normally, and the followers go there regularly. He was asked how he knows that if he has no ongoing connection with them. He said that he read it in the newspaper or on social media or something.
The Tribunal asked the applicant whether the Dera has a head at the moment. The applicant advised that it does not as the head is in gaol, but other people are running the Dera which is operating normally.
He said that he knows the head is in gaol because it is in the news and everyone knows that. He said that other than that he does not know much about the Dera’s operations in India.
He said that he has not been discussing the Dera’s operations with anyone other than his family.
The Tribunal reminded him that he had said that when he came to Australia he intended to monitor the situation in India to see if it would be safe for him to return. The Tribunal asked whether he had been doing that.
He said that he had been speaking to family members and monitoring the news to inform himself of developments in India. He said that he did not want to contact anyone else because he did not want other people to know where he is.
The Tribunal asked the applicant about his background in India.
He said that he went to school until the end of year 12 and that after he finished High School, he worked on the family farm. He said that his family comprised his parents, himself and his 2 sisters.
He married in 1996 and has 2 sons, one of whom is [age] and the other is [approximate age]. Both of the boys are in school.
The boys were about [age] and [age] when he came to Australia.
The family still owns the farm, but it is leased, and his elder son oversees the lease arrangements.
His sisters are married. One lives in [Country 2] and the other lives with her husband’s family.
His parents live with his wife and sons.
He said that he became involved with the DSS in about 2006. He found out about it through a man who was visiting him at the farm. He stared going to DSS in about 2006 but did not formally join until 2009.
He went through a ceremony at Sirsa where the DSS headquarters is. That is about [number] kilometres from his home village.
He said that he would be assigned duties when he went to the Dera and that they were quite wide ranging. He organised the Dera bus and supervised or assisted workers on construction sites.
He drove the bus about once a month and the amount of time he spent helping the Dera depended on how much time he had available.
He said that he was the only member of his family who joined the Dera. He said that although he thought it was a positive influence, he did not think he could encourage his family to join because his membership had got him into trouble.
He said that his family did join him at the satsang but did not join the DSS.
He also said that the DSS does not replace his Sikh religion and that he still attends Sikh ceremonies when he can.
He said that he has not met any DSS followers here in Australia but he still considers himself a DSS follower.
He said that his work as a [Occupation 1] means that he is busy and does not allow him to search for other DSS followers.
He said that he has been working as a [Occupation 1] for about a year and that before that he was doing [specified work].
He said that he started working in Australia about 8 or 9 months after he got here and first worked collecting trolleys at a supermarket.
His wife and younger son had come to Australia with him but she had fallen ill and returned to India after about a month. Their elder son had stayed in India to help look after the applicant’s mother who had a heart problem and diabetes.
The applicant was asked whether he looked for DSS members in the 8 or 9 months after he arrived in Australia while he was not working. He said that he did not understand what he had to do and he was confused because his wife was ill and he was not sure if he should go back to India with her.
He said that he was worried about his future and finding a job and that those were his priorities rather than locating DSS members.
The applicant was asked whether he understood that his application had been refused because the delegate was not satisfied that the applicant had any connection with the DSS. The applicant said he understood that that had been an issue.
The Tribunal put to the applicant that he had made no effort to find out if the DSS is active in Australia since he has been here. He agreed that he had not.
The Tribunal put to the applicant that that suggests that he is not a member of DSS or that his membership of DSS is not important to him.
He said that the things he learned about from the Dera related to honesty, truthfulness and concerning yourself with your own work. These things are natural in Australia. There is no political mischief nor is there a caste system.
He said that in India he was a member of a scheduled caste but that the Dera taught that everyone is equal. His answer did not respond to the question and was evasive.
The Tribunal asked the applicant whether he was doing anything in his work for the Dera that would make him the target of attack. He said that the Dera was politically active and agreed that the people who wanted to attack him wanted to do so for political reasons.
He said that if he went back the same people would want to attack him for the same reasons.
The Tribunal asked the applicant if he knows what party Dera supporters would vote for now but he did not know.
He was asked if he knows how much political power the Dera has now. He said that there are many members and the parties use them as a vote bank.
The Tribunal asked the applicant to describe the attack in July 2009. He said that he was present at a “satsang” (religious gathering) in [Town 1]. He estimated that there were about 700 people in the gathering.
They were attacked by about 500 people armed with guns and other instruments. He said that he was attacked and that he had wounds on his body. He said that he had been running and his leg was hurt.
The hearing was adjourned at that time as the allotted time had run out.
Second Hearing - 28 February 2022
At the resumed hearing the Tribunal asked the applicant about his journey to Australia. He said that he came with his wife and their younger son. He said that he had wanted to bring his whole family but that would have left his mother alone which would not have been good so he left his elder son in India.
The applicant had come to Australia on a visitor visa. The Tribunal asked if he intended to stay permanently when he first came. He said that he had assumed that the situation would improve, and he could go home.
He said that after he arrived in Australia his family had been told that he would be killed if he returned so he decided not to. Later in his evidence he clarified that unknown persons had asked where he was, which he interpreted as a death threat.
The Tribunal observed that the delegate records that the applicant told the department that there had been a delay of a year or more between an attack on his home in 2015 and him coming to Australia.
The applicant said that he didn’t want to go overseas so at first he went to Delhi for about 15 days to see if things settled down and he could return.
He left Delhi and went to Batala, a city about [number] kilometres from his home, still in the hope that he could return to his village.
He stayed there for about a year, renting accommodation and working in a restaurant. He lived there with his wife, sons, and mother.
He said that he did not want to keep working in the restaurant and did not see himself getting any further with that work, so he decided to come to Australia.

The Tribunal asked whether the main reason for coming to Australia was therefore to “get further” with work. He said that that was part of it, but also he did not feel safe in India.
He said that he had lived in Batala from around December 2014. He moved after his house in the village was attacked the first time.
The applicant was asked about a reference in the application to a second attack on his house, at the time that the Dera head released a second movie. The applicant said that there was another attack in about January 2015.
The attack was on the house in the village.
The Tribunal asked whether anyone was still living at the house in the village at the time of the second attack or whether it was vacant, given that the family had moved to Batala by that time.
The applicant said that no one was living there but that his mother would return occasionally for a day or two to clean it.
The reason for the attack on the house in the village was not clear. Presumably the attack was linked to the release of the Dera head’s second movie.
There is nothing in the applicant’s evidence to suggest that there was any attack on the applicant on this occasion.
The applicant was again asked about his motivations in coming to Australia. He said that he had not intended to stay permanently, and was going to return when the situation settled down.
He said that he expected that to take ten days or perhaps a month.
The applicant gave evidence that he left India in April 2016. By then he had been living in Batala with his family for about a year and 4 months. He said that they bought a small house in Batala early in 2016.
He said that the children were studying in Batala so now they just live there.
The applicant told the Tribunal that his mother found out that unknown people in Batala sometimes ask about his whereabouts and when he would be coming back.
He said that his mother did not recognise these people.
He did not know why they were asking about him.
The applicant was asked about his religion.
He said that he is a member of DSS and is also a Sikh. When he first got to Australia, he would attend the Sikh temple but since he has met people in Australia he does not often go any more.
He said that when he was in India he would only attend Dera and not Sikh temple but now that he is in Australia he does not attend Dera either. He said that he had been unable to find other Dera members although he did get a contact number in Melbourne during the week before the resumed hearing.
The applicant said that he still believes the Dera is running in the same way that it was when he left India although he is aware that the head of the Dera had been imprisoned.
The Tribunal discussed country information contained in the Department of Foreign Affairs and Trade Country Information Report India dated 10 December 2020 (“the report”).
The applicant was advised that the report says the Dera is losing influence because of the leader’s absence[2].
[2] Paragraph 3.78
He was also advised that the report says that congregation numbers have significantly reduced and that the Dera’s income is being depleted[3]. He said that he did not know about that.
[3] Ibid.

100. The Tribunal put to the applicant that the DSS is a much smaller organisation with much less power than it was when he left India. The applicant disagreed saying that he did not have enemies for any reason other than his association with the DSS. He said that “they” feared that he would encourage others to become DSS followers.
101. When asked who he meant when he said “they” he said the Nihang organisations which are related to Sikhs. The Tribunal understands that the Nihang dress with distinctively coloured robes, distinctive turbans and carry traditional weapons.
102. The Tribunal asked how he knew they were targeting him. He replied that they are people dressed as Nihang and they have weapons and guns. He said that his mother had told him that such people had asked about him.
103. The Tribunal asked the applicant if he understood that the delegate had not accepted that he is involved with the Dera. He insisted that he does his prayers and meditation even without a network.
104. He also repeated that he had, in the week before the hearing resumed, obtained a link which he hoped would put him in touch with other Dera supporters.
105. The Tribunal suggested that he had not made any effort to locate Dera supporters until the week before his second appearance before the Tribunal. He disagreed saying he had been trying to locate other Dera members since he had been in Australia but that his efforts had not been successful.
106. The Tribunal put to him that at the first hearing he had said that he had not made any effort to locate Dera members. The applicant ultimately agreed that he had not, in fact, made any effort at that time. Before he made that concession his answers were inconsistent and evasive.
107. The Tribunal suggested to the applicant that the fact that he had not made an effort to locate other followers suggested that he is not committed to the Dera. He said that one does not have to attend to follow the Dera.
108. The Tribunal asked why, in that event, did he start looking for other followers at the time of the second hearing.
109. The applicant did not answer save to say that he had just obtained the link the previous week.
110. The Tribunal asked whether it was the applicant’s evidence that, having lived in Australia for 7 ½ years he had found the link by coincidence in the week before he was giving his evidence.
111. He replied that that is the case and remarked that it is lucky that he found it.
112. The Tribunal finds the applicant’s evidence about his efforts to locate Dera members in Australia to be unlikely and unconvincing and is not satisfied that the applicant is a follower of the Dera.
113. The applicant was asked about having relocated from his village to Batala in 2015 to be safer. He said that that was the aim at the time but in the last 2 or 3 months he understands that people were asking about him. He said that because of that he no longer believes Batala is safe for him.
114. The Tribunal put to him that the DFAT report referred to earlier suggests that the DSS is no longer seen as a political power in India and that even if he is involved with them he will not be in danger.
115. He disagreed saying that someone was killed recently by Nihangs and that there had been reports in the news for a few days.
116. The applicant agreed that he had not provided any evidence about that and was told that he would have at least 2 or 3 weeks to provide that if he so wished.
117. The applicant did not send anything further to the Tribunal.
118. The Tribunal accepts that the applicant may have been a follower of the DSS in the time before he came to Australia.
119. The Tribunal accepts that the applicant may have attracted the attention of anti DSS elements during the time that he continued to live in his village. The Tribunal accepts that the applicant may have been involved in an attack on DSS protesters [in] July 2009 and may have been arrested and put in gaol after that attack.
120. The Tribunal accepts that the applicant may have been involved in an attack by a Sikh faction on DSS followers at Sirsa [in] November 2012.
121. The Tribunal accepts that the applicant may have been present at a satsang at his house that was the subject of an attack in December 2014.
122. The Tribunal is not satisfied that the applicant was subjected to any attacks, harm or threats of harm in the period of about one year and four months after he moved to Batala.
123. The Tribunal is not satisfied that the applicant is now a committed member of the Dera.
124. The applicant insists that there is nothing other than his membership of DSS that would give rise to him being persecuted in India.
125. The Tribunal is not satisfied that, if the applicant returns to Batala, he will face a real chance of relevant persecution by reason of his membership of the DSS.
126. One reason that the applicant will not face a real chance of persecution is because the Tribunal is satisfied that the applicant is not a member of DSS.
127. The other reason that the applicant will not face a real chance of persecution is because, having regard to the DFAT report discussed with the applicant, the Tribunal is satisfied that the DSS is significantly smaller in membership and less politically powerful than it was when the applicant left India and that DSS members do not face persecution as they once did.
128. Further, the Tribunal is satisfied that even when there was some risk the applicant was able to remove himself from danger by relocating to Batala where he and his family now own a house. The Tribunal accepts that the applicant’s family now live in Batala.
129. The applicant does not claim that he was subjected to any threats while he was living in Batala.
130. The Tribunal is not satisfied that the applicant would not be safe if he returned to Batala.
131. The applicant says that he has been told by his mother that after he left India people asked after him occasionally up to 2019 and again once more recently. The Tribunal is not satisfied that those enquiries were threats.
132. The Tribunal is not therefore satisfied that the applicant is a person who faces a real chance of persecution for one or more of the reasons mentioned in s.5J(1)(a) as contemplated by the Act.
133. The Tribunal further notes that any chance of persecution that may have existed in the past did not relate to all parts of India as contemplated by s.5J(1)(c). In particular it did not relate to Batala where the applicant moved himself and his family.
134. The Tribunal finds that the applicant does not meet the definition of “refugee” and the applicant is not, therefore, entitled to a protection visa by reason of s.36(2)(a) of the Act.
Complementary Protection
135. Having found that the applicant is not a person who is a refugee for the purposes of s.36(2)(a) of the Act, the Tribunal must consider the alternative criterion contemplated at s.36(2)(aa) known as the “Complementary Protection” criterion.
136. That criterion is satisfied if the applicant is a person in respect of whom there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm.
137. In MIAC v SZQRB [2013] FCAFC 33, the full Federal Court of Australia held that the test in considering whether a non-citizen faces a “real risk” of significant harm for the purposes of s.36(2)(aa) is the same threshold as the “real chance” test in s.36(2)(a) in relation to a well-founded fear of persecution[4].
138. The Tribunal has found that the applicant does not face a real chance of persecution by reason of his membership of DSS or because he is believed to be or have been a member of DSS.
139. For the purposes of that finding, the definition of “persecution” requires the Tribunal to consider whether the applicant will suffer “serious harm”[5].
140. “Serious harm” for the purposes of that consideration, is a different standard to “significant harm” when considering the test in s.36(2)(aa).
141. “Significant Harm” is defined in s36(2A) which is attached to this decision. The definition specifies arbitrary deprivation of life, the execution of the death penalty, torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment.
142. The applicant has not claimed, and the evidence does not suggest, that the applicant will suffer harm for any reason unrelated to his membership of the DSS.
143. The Tribunal is satisfied that the applicant does not face a real risk of significant harm as a necessary and foreseeable consequence of him being returned to India. The Tribunal has found that the applicant’s membership of the DSS, if indeed he was a member of the DSS, will not now provoke mistreatment by members of his local community due to the diminished importance of the DSS.
144. Further, the Tribunal is satisfied that the applicant has effectively relocated away from that community in any event and having done so will avoid risk of any harm, significant or other. That being the case, pursuant to s36(2B)(a) it is to be taken that there is no real risk that the applicant will suffer significant harm in India.
The Tribunal has had regard to all the evidence before it and is not satisfied there are substantial grounds for believing the applicant faces a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to India.
[4] Paragraphs 245 and 246,
[5] MIBP V WZAPN; WZARV V MIBP (2015) 254 CLR 610 at [71]
CONCLUSIONS
145. 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 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

148. The Tribunal affirms the decision not to grant the applicant a protection visa.
Mark O'Loughlin
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.
…

[2022] AATA 1693

19 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction