2015443 (Refugee)

2015443 (Refugee) [2021] AATA 5141 (17 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2015443
COUNTRY OF REFERENCE:                   India
MEMBER:Amanda Paxton
DATE:17 November 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 17 November 2021 at 12:03pm
CATCHWORDS
REFUGEE – protection visa – India – political opinion – supporter of Bharatiya Janata Party (BJP) – harassment but no harm from members of other parties – member of family unit – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1)(a), (4)(b), (5), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (‘the Department’) on 21 September 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of India, applied for the visas on 22 June 2019. The delegate refused to grant the visas on the basis that the delegate was not satisfied the applicants are persons in respect of whom Australia has protection obligations.
On 18 October 2020, the applicants validly applied for review of the delegate’s decision to the Tribunal, attaching to the application a copy of the delegate’s refusal notification letter.
The first named applicant (the applicant) gave evidence at a hearing on 11 November 2021 by video conference through MS Teams. The Tribunal exercised its discretion to hold the hearing by video conference as the hearing was held when COVID-19 pandemic restrictions, while easing, were still in place. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The video was clear throughout the hearing. The hearing was conducted with the assistance of an interpreter in the Telegu and English languages on the phone. There were several occasions where the phone audio was unclear, and the interpreter was requested to repeat. The Tribunal was satisfied that the applicant was able to give evidence and present arguments to the Tribunal throughout the hearing.
The applicants were not represented at the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–5LA, 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.
CLAIMS AND EVIDENCE
The issue in this case is whether the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J of the Act in India and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, there is a real risk that they will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality
The applicants claim to be nationals of India. The applicant provided the Department with a copy of each page of his passport.[1] The applicant’s passport indicates it was issued [in] 2015 and will expire [in] 2025. The second named applicant provided the Department with a copy of each page of her passport[2] indicating it was issued [in] 2015 and will expire [in] 2025. On the available evidence, and in the absence of any contrary information, the Tribunal finds that the applicants are nationals of India. This is therefore the country of reference for the purpose of assessing their refugee claims, and the receiving country when assessing their eligibility for complementary protection.
[1] [Home Affairs reference], AAT Doc Id 7765523.
[2] [Home Affairs reference], AAT Doc Id 7765522.
Background
On the basis of the documentary evidence before it and the applicant’s consistent evidence in his written application to the Department and at his Tribunal hearing, the Tribunal is satisfied the personal details provided by the applicant are credible. The Tribunal is satisfied the applicant was born on [Date 1] in Bangalore, Karnataka, India[3] and married on [Date 2] in Krishnarajapuram, Bangalore. The Tribunal accepts the applicants have a son and a daughter living in Bengaluru, India, born respectively on [Date 3] and [Date 4].
[3] [Home Affairs reference], AAT Doc Id 7765512.
On the same basis, the Tribunal accepts the applicant’s statements in his Form 866C that his ethnicity is Indian and his religion is Hindu, and that he can speak, write and read Telugu and Kannada, but can only speak Tamil and English.
According to the applicant’s Protection visa application form, submitted online, the applicant’s travel history is as follows:
· [Country 1], [Country 2], [Country 3], [Country 4], [Region] – between [Date 1] and 22 June 2019
· Australia – [March] 2019 to current.
Written claims for protection
The applicant’s written claims for protection are first put forward in his Protection visa application form. In summary, he claims that he left India because he fears persecution from members of the Congress and Janata Dal (Secular) (JDS) political parties on the basis that he is a supporter of the Bharatiya Janata Party (BJP). The second named applicant indicated that she is not making her own claims for protection, and this was confirmed by the applicant at hearing. The applicant made the following claims:
·     He is a sincere supporter of the BJP political party because the party is free from corruption, and because it is building infrastructure in India.
·     The applicant claims that, during the Karnataka assembly election held around May 2018 in the Karnataka State of India, he provided support by: going from door to door during the voting campaign for two days promoting the BJP; walking on the streets with the BJP flag for the party’s publicity; distributing pamphlets for the BJP to the public; and attending BJP election meetings.
·     He fears returning to India as he would be targeted and harmed by political parties including the opposition Congress and JDS political parties.
·     In early 2019 the applicant applied for an Australian visa in order to leave India for a visit and to relax his mind.
·     He cannot return to other states in India, as the Congress political party is active in all the states, and he cannot seek protection from Indian authorities as the Congress and the JDS are in power.
·     The applicant states that he has not experienced harm in India.
·     The applicant states that he did not move, or try to move, to another part of India to seek safety because he cannot return to other states in India as the Congress political party is still active in all the states.
·     If he returns to India he will be harmed or mistreated by the Congress and JDS political parties to stop him supporting the BJP, in the form of threats and physical assault.
·     He cannot seek the protection of Indian authorities as the Congress and the JDS are in power and the authorities in his state will not take action against them.
·     The applicant would not be able to relocate within India to an area where he would not be harmed; he states he cannot return to other states in India as the Congress political party is still active in all the states.
The applicant provided copies of his and his wife’s passports and Indian national identity documents, marriage certificate attesting his marriage to the second named applicant.
Relevant country information
The Tribunal has considered the country information provided by the DFAT Country Information Report for India, dated 10 December 2020, which reports the following:
…
Political Opinion (Actual or imputed)
India’s constitution provides for freedom of speech and expression, freedom of assembly, and the right to form associations (Articles 19-22). The Government of India can impose reasonable restrictions to these freedoms in the interests of sovereignty and integrity of India, national security and public order, and to maintain decency and morality. India has laws on sedition and criminal defamation, and laws regulating the use of the internet. According to Human Rights Watch (HRW), these laws curb Indians’ constitutional freedoms.
Democratic elections for the Lok Sabha, the lower house of parliament, have been held since 1951. The only exception to this was when the Indian Congress Party’s then-Prime Minister Indira Gandhi postponed elections during a period of emergency rule from 1975 to 1977. Notwithstanding the scale and complexity of India’s political landscape, and noting some exceptions, elections in India tend to be peaceful, broadly free and fair, reflect the will of the electorate, and result in regular transfers of power at central and state levels. Activists have occasionally called for communities in conflict-affected areas to boycott electoral processes, and low-level violence has sometimes occurred.
India has a diverse political landscape, which represents different ethnic, religious, secular and political interests. There are no constitutional, legal or other institutional restrictions preventing minorities from participating in politics. Political parties often court ethnic, religious and caste-based minorities for their ability to deliver ‘vote banks’.
Observers assess the government has sought to align Indian nationalism with Hindu nationalism. They claim the BJP has benefited politically from some Hindu organisations’ use of violence to polarise the electorate along religious lines. The 2019 USCIRF report – which the Indian Government rejects – claims certain BJP members have affiliations with extremist Hindu groups and have used inflammatory language about religious minorities publicly (see Recent History and Hindu nationalist organisations). This has led to concerns minority rights and religious freedoms are being threatened, and the link between democracy and secularism is being weakened.
Opposition Parties and Critics of the Government
India has hundreds of political parties registered with the election commission, with a small group registered as national parties. The BJP and its rival the Indian National Congress (Congress) party are the largest among them. Since independence, the Congress party has dominated the national movement for ending British rule and has formed most of India’s governments. The party, which has lost successive general elections to BJP since 2014, is currently led by Sonia Gandhi. Other national parties include:
…
Besides the national parties, numerous regional movements play an important role in each state. The influence of regional parties has reportedly been growing steadily, often at the expense of the Congress.
The constitution protects the rights to freedom of speech, and to form associations and unions. This right is subject to ‘reasonable’ restrictions in the interests of public order, decency or morality. Public demonstrations require advance notice and permission of authorities and frequently occur. Intelligence agencies regularly monitor the activities of civil society actors and individuals engaged in particular areas of sensitivity. According to some commentators, the right to freedom of speech is limited in practice, with government control tightening.
In January 2020, researcher and student Sharjeel Iman, was arrested and charged with sedition, following a protest speech in which he called for a road blockade to cut off the state of Assam from the rest of country. This followed protests over the government’s December 2019 introduction of the Citizenship Amendment Act, 2019. Following Iman’s speech, some BJP leaders reportedly labelled him a ‘secessionist’. Critics are concerned the government is using the colonial-era sedition law, under which Iman was arrested, to silence dissenters, claiming their acts are a threat to national security.
Media reports citing official data claim 332 people were arrested under the sedition law between 2016 and 2018, with seven convicted (suggesting police have struggled to gather evidence against the accused). Researchers claim the use of the sedition law has increased under the current government. DFAT is unable to verify these claims.
In 2019, Indian police filed a sedition case (later dropped) against 49 people who had expressed concern in an open letter to Prime Minister Modi over hate crimes targeting minority communities. Other recent high profile cases include sedition charges against political activist Shehla Rashid for tweets alleging the Indian army’s use of torture in Kashmir; and sedition charges (later dropped) against a teacher and a parent for involvement in a school play voicing opposition to the citizenship law.
There are few publicly available statistics on election incidents. Reports of violence around polling stations do occur during electoral periods. For example, in the 2019 general election campaign, clashes between party supporters, protests and other violent incidents were reported in 11 (of then-29) states. Seven deaths were recorded of voters, party workers and elections officials, including by security forces, with multiple others injured. The Electoral Commission of India (ECI) ordered repolling in around 270 (of 1 million) polling stations due to allegations the booths had been ‘captured’ and voters intimidated by supporters of one or another party. The ECI also banned campaigning in West Bengal a day early after a major clash between the supporters of the BJP and the governing All India Trinamool Congress.
DFAT assesses leaders and members of opposition parties do not face official or societal discrimination on a day-to-day basis. The risk of political violence between rival supporters increases during parliamentary and state elections, especially in states where results are tightly contested. However, in general, given the scale of the Indian election process, elections are conducted peacefully. DFAT assesses people who publicly express views critical of the government face a moderate risk of official discrimination. This may include arrest, harassment and prosecution.
In this consideration, the Tribunal has also referred to country information that in May 2018, while the BJP had the largest single vote in an election for the Karnataka state assembly, Congress and JDS formed an alliance to form government.[4] However, in July 2019, the BJP won a confidence vote against Congress in the Karnataka state assembly,[5] and returned to power in that state.[6] In recent by-elections, BJP won one seat and Congress the other.[7]
FINDINGS AND REASONS
[4] Karnataka Assembly election Results 2018: Full list of JDS winners | Karnataka News | Zee News (india.com)
[5]
[6]
[7] 2021 Karnataka By Election Results Live: Karnataka Bypoll Results Live Coverage, Karnataka Assembly By Election Vote Counting Live, Karnataka Bypoll Results, Winners, Runner Up Live Updates | The Financial Express
Political opinion
At hearing, the Tribunal discussed the applicant’s claim to fear harm on return to India from supporters of the Congress and JDS political parties because he is a supporter of the BJP.
The applicant gave evidence that after attending a government school in Bengaluru, he learned [job skill] before moving into selling [Product 1] and then establishing a warehouse business from which he distributed [Product 1] to retailers. His business was successful, and he travelled to overseas destinations each year for holidays, usually with his wife.
The applicant told the Tribunal that since he became eligible to vote he has been a fan of the BJP, admiring the local leader of the BJP as a kind person with the interests of people at heart, supporting development of local services such as water supply. He stated he was not a member of the BJP but supported the electoral campaigns of the local BJP member between 2012 and 2018. In the 2018 election, his involvement included distribution of pamphlets and canvassing door to door for the BJP member.
The applicant stated that as a supporter of the BJP he annoyed supporters of the opposition parties, Congress and JDS, who feared they would lose the election. He stated that he was not targeted for any abuse or harassment before the election, but after the election, after the opposition parties, Congress and JDS, had won power, supporters harassed him as he moved around the area, swearing at him and speaking with him in such a way as to try to make him react. He stated he always resisted reacting, but he feared that if he reacted, they might harm him. At hearing, the applicant reiterated his written claim that he has not experienced any harm, but he fears he will be harmed, because the supporters are very strong. The applicant stated that no-one has targeted or approached his family.

The applicant stated that he did not come to Australia until 2019 because harassment from Congress/JDS supporters did not occur immediately after the election because Congress and JDS did not win all the seats, but they started targeting him later when they came to power. As discussed with the applicant, country information cited above indicates that while the BJP received the largest single vote, Congress and JDS came to power in coalition, narrowly beating the BJP in this election. The applicant was aware that the BJP had subsequently won by-elections but stated that continues to worry that supporters of the Congress/JDS might trouble him.
On the consistent and direct evidence of the applicant at hearing, the Tribunal accepts the applicant is a sincere supporter of BJP. The Tribunal further accepts the applicant was not a member of the BJP and that he did not have any formal role with the BJP, but that as a supporter he canvassed publicly for the BJP at elections. The Tribunal accepts the applicant assisted at election time, including the May 2018 election. On this basis, the Tribunal finds the applicant has a low-level profile as a BJP supporter. The Tribunal further accepts the applicant’s oral evidence that he was not targeted for adverse treatment from opposition parties at election time but that he experienced swearing and abuse from Congress/JDS supporters after a coalition of these parties assumed government in 2018.
In considering the applicant’s claim to fear harm from Congress and JDS or other political opponents, the Tribunal has assessed the independent country information above put to the applicant at hearing and considers this indicates while the risk of political violence between rival supporters increased during parliamentary and state elections, especially in states where results are tightly contested, in general, elections are conducted peacefully. The Tribunal further assesses that the information indicates that a person of the profile of the applicant, a low-level supporter of BJP, does not face a risk of harm from authorities or supporters of other political parties arising from his support of the BJP.
The Tribunal has accepted above that the applicant was the subject of swearing and abuse from supporters of opposing political parties as he moved about the area. The Tribunal acknowledges that the low-level harassment experienced by the applicant from Congress/JDS supporters was unpleasant for the applicant. However, the Tribunal has considered whether the harassment suffered by the applicant involved serious harm for the purposes of s 5J(4)(b) of the Act as instanced in s 5J(5) and finds that it does not. The Tribunal also finds this treatment does not amount to significant harm as defined at s 36(2A) of the Act.
In considering whether the applicant has a profile of adverse interest to the government or any political group in Bengaluru or anywhere else in India, the Tribunal has also taken account of the applicant’s evidence that he was not harmed prior to his departure in March 2019. The Tribunal considers that had supporters of the government or any other opposing parties had any interest in targeting the applicant for serious or significant harm they had ample time to do this in the period of almost one year after the election and the applicant’s departure.
On all the evidence before it, the Tribunal does not accept the applicant was targeted for serious or significant harm from Congress/JDS supporters prior to his departure in 2019. Taking the country information and the evidence of the applicant at hearing into account, the Tribunal does not accept the applicant’s written claim that he came to Australia in 2019 “to relax his mind” because he feared harm from Congress/JDS or supporters of any other political parties. On the same basis, the Tribunal does not accept the applicant’s written claim that he did not move to other states and cannot return to other states in India in the future for protection, because the Congress political party is active in all the states, or that he cannot seek protection from Indian authorities as the Congress and JDS are in power and will not take action against them.
For all the reasons above, the Tribunal does not accept there is a real chance that, if returned to India, the applicant faces serious harm in the form of threats and physical assault by political parties including the opposing Congress and JDS political parties to stop him supporting the BJP or for any other reason. On the same basis, the Tribunal does not accept that on return to India the applicant has a real risk of significant harm as a BJP supporter.
The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. For the reasons set out above, the Tribunal does not accept there is a real chance he will face persecution involving serious harm from Congress/JDS supporters or any other party in Bengaluru or anywhere in India for reason of his political opinion or any other reason mentioned in s 5J(1)(a) of the Act, now or in the foreseeable future, if he were to return to India. The Tribunal finds the applicant does not have a well-founded fear of persecution.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
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). In this consideration, the Tribunal takes into account the applicant’s statement at hearing that he has no other reason to fear returning to India.
The Tribunal has considered whether, on the evidence before it, there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to India. The Tribunal takes into account all of the claims and evidence before it, including the applicant’s future conduct and relevant country information.
The Tribunal is not satisfied that the applicant’s circumstances give rise to a real risk that he 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 that would meet the definition of cruel or inhuman treatment or punishment, or that would 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 his life or the death penalty.
The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
CONCLUSION
For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Amanda Paxton
Member

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

[2021] AATA 5141

17 November 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Appeal