2017386 (Refugee)

2017386 (Refugee) [2023] AATA 1728 (4 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Parminder Singh Pabla (MARN: 1468255)
CASE NUMBER:  2017386
COUNTRY OF REFERENCE:                   India
MEMBER:Rachel Da Costa
DATE:4 April 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 April 2023 at 5:07pm
CATCHWORDS
REFUGEE – protection Visa – India – a member of a low or scheduled caste – political opinion – active supporter of the Bharatiya Janata Party (BJP) – father was a supporter of the Rashtriya Swayamsevak Sangh (RSS) – applicant did not suffer harm in India due to his political background or for any other reason – delay of nearly 10 years in lodging his protection visa application– credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65,499
Migration Regulations 1994, Schedule 2

CASES
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 5 November 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 7 October 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background
In his protection visa application form, the applicant provides the following information. He was born in Ludhiana city, Punjab state, India in [year]. He has never been married. In India, he has his mother, [and siblings]. His father is deceased. He calls and speaks to his mother and siblings from time to time.
Before coming to Australia, the applicant lived in [location], Ludhiana, Punjab. He speaks, reads and writes Punjabi. He is a Hindu. In India, he was not employed. He finished school and stayed with his parents and helped his father in his father’s business. He completed High School in India in [year] in Ludhiana. In Australia, he enrolled in courses but did not complete them. In Australia, he has held various jobs.
The applicant arrived in Australia on [date] November 2008 as the holder of a Student visa. He travelled on his Indian passport with expiry date [date] 2012.
The applicant has overstayed in Australia after his Student visa expired in July 2011.
Evidence before the Department
Protection visa application
The applicant makes the following claims in his protection visa application form:
·     His parents have been actively involved in Indian politics. Due to that, he has personal enmity with some political persons in India.
·     His family have been active members and supporters of the BJP[1] party in India. His mother was a [Position 1] for the BJP party for [Ward number] from 2000 to 2007 and then from 2012 to 2018.
·     His father was a [Position 1] with BJP party for [Ward number] from 1992 to 1997.
·     His family has strong support of the [Ward number] residents and it was obvious that after his father expired that he will take over the political affairs and fill the seat. He was the obvious choice being the eldest son in the family and an active supporter of the party.
·     Due to this he was targeted and the rival groups tried to put pressure on his family not to field him as a candidate in the forthcoming elections after the demise of his father.
·     They even tried to abduct him and kill him. He survived two different attacks carried out on him by the opponents. That is why his mother decided to send him to Australia on a student visa.
·     He approached the police but they were under the influence of the ruling party and politicians and so no case was registered or investigated due to instructions of the high bosses in politics.
·     His mother is currently a [Position 1] for the BJP party for [Ward number] and she won the seat. She tells the applicant that the opponent parties and rival groups still look for him so that he cannot return to India and take active participation in political affairs of the party and gain the position which his father once held.
·     If he returns to India, rival groups will try to harm him physically and will most likely finish him up. He cannot relocate to another part of India because he does not have the resources and his opponents can find him and harm him.
The applicant’s migration history
[1] The Bharatiya Janata Party, which is the part of Prime Minister Narendra Modi. See DFAT Country Information Report India 10 December 2020 (DFAT Report)
As discussed with the applicant in the Tribunal hearing and reflected in documents on the Departmental and Tribunal files, the applicant’s migration history is as follows:
·     14 October 2008: Student visa granted offshore.
·     [Date] November 2008: applicant arrived in Australia.
·     8 April 2010: Student visa cancelled; applicant became an unlawful non-citizen.
·     7 October 2018: applicant applied for a protection visa.
·     23 August 2022: applicant’s Bridging C visa was cancelled under s 501(3A) of the Act following the applicant pleading guilty to two offences, being convicted and given a 12-month suspended prison sentence.
The applicant is currently in immigration detention and does not hold a valid visa.
The delegate’s decision
The applicant was invited to attend an interview with the Department on 22 September 2020. The delegate’s decision notes that despite multiple attempts to contact the applicant, he did not attend the interview at the scheduled time.
Following this, on 2 October 2020, the Department sent the applicant a letter requesting more information in relation to aspects of his claims and inviting him to comment on information which would be the reason, or part of the reason, for refusing to grant him a visa. The applicant did not respond to the letter.
On 5 November 2020, the delegate made his decision. The delegate found that the applicant’s written claims lacked substantiating information such as dates and details in relation to his claims of active support of the BJP, being targeted by rivals, and encountering attacks including attempts to abduct and kill him. The delegate found that the applicant’s written claims did not include details of key events and the applicant’s failure to provide any substantiating details about the claims raised doubts about their credibility. The delegate noted that the applicant was granted an Australian visa in October 2008 but did not enter Australia until November 2008. The delegate found that if the applicant had encountered attempts to abduct and kill him and genuinely feared his opponents would ‘finish him’, it is likely he would have departed India hastily after being granted an Australian visa. His belated departure raised doubts about the credibility of his claims. In addition, the applicant’s delay of nearly 10 years in lodging his protection visa application after arriving in Australia was a concern for the delegate.
Online information located by the delegate suggested that the applicant’s mother did not hold a position as a [Position 1] for the BJP as claimed by the applicant. Online information indicated that the [Position 1] for [Ward number] [from] 2012 was a man named [name]. The delegate also had concerns about the applicant’s claim that opponents targeted him because they did not want him to stand for election and attempted to abduct and kill him. The delegate referred to information which suggests that in India, political parties have the right to organise rallies, conferences, meetings and seminars to express their views and political opinions, however critical it is of the government and of the ruling party, and that members of opposition political parties do not face official or societal discrimination. In terms of the applicant’s claim that he approached the police for help and they did not act because they were under the influence of the ruling party, the delegate noted that at the time of the applicant’s departure from India in 2008, the party he claims to support, the BJP, was part of the coalition government ruling Punjab state. Given the applicant claims to have supported one of the ruling parties, the delegate considered it implausible that police would not act because of the influence of the ruling party, as suggested. The delegate had various concerns about the credibility of the applicant’s claims and did not accept them. Therefore, the delegate found that the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
The review application
On 2 December 2020, the applicant lodged an application for review of the delegate’s decision with the Tribunal. The applicant provided a copy of the delegate’s decision to the Tribunal.
Pre-hearing submissions
On 15 December 2022, the applicant was invited to attend a hearing to give evidence and present arguments on 5 January 2023. On 22 December 2022, the applicant appointed a registered migration agent to represent him and his representative requested a postponement of the hearing. The Tribunal agreed to this request.
On 7 February 2023, which was the day of the rescheduled hearing, the applicant provided a written statement prepared by his representative reiterating the applicant’s original claims and making a number of new claims as follows:
·     The applicant’s father was a supporter of the Rashtriya Swayamsevak Sangh (RSS) which is a Hindu nationalist paramilitary volunteer organisation in India. His father held positions in the organisation.
·     Due to his family’s affiliation with the RSS and BJP, they have political rivalry with many political opponents and other religious outfits.
·     The applicant’s younger brother is active in politics for the BJP and he has been targeted by political opponents. He was falsely framed by the police in [Criminal Case 1] and on another occasion he was arrested and charged with false charges relating to a protest. His brother regularly receives threats from the opponents.
·     The applicant’s family belong to a lower caste and they are targeted by the influential political party.
·     The applicant’s political opponents are still active and will target him if he ever returns to India. He fears for his life due to his political affiliation with the BJP and RSS.
The applicant also provided various documents to the Tribunal in support of his case:
·     Written document entitled ‘declaration by [Mr A], brother of [the applicant] who is presently in Australia’ which states that:
oHis father [and mother], both deceased, were [Position 1s] from time to time;
oThe family were staunch supporters of BJP and RSS. His father was an active RSS member and both brothers worked for the BJP;
oAs his father got name and fame, rival groups started implicating the family in false cases. I [Mr A] was implicated in 2011 in [Criminal Case 1] and acquitted in 2016. In 2015, I was falsely implicated in another case which is still pending in the court.
oHis father managed to send [the applicant] to Australia to study with the hope to look after his sisters and brother. His father died in 2010 and mother in 2022.
oIf [the applicant] returns to India there will be huge scope of threats to his life.
·     Judgment dated [date] 2016 from the [court of] Sessions Judge, Ludhiana, acquitting the accused, including [Mr B], of the charges made against them relating to [Criminal Case 1];
·     Judgment dated [date] 2005 from the [specified court], Ludhiana, which acquits the named accused. It does not appear to name either [Mr B], [Mr A] or the applicant or his parents as accused persons in the case.
·     Two documents entitled ‘Scheduled caste certificate’, one which is partially translated and includes the name of the applicant’s father and the other which is completely untranslated;
·     Identity card [in] the name of [Ms C] (BJP), [Position 1], Ward [No], valid to 18-6-2007;
·     Card [in] the name of [Ms C], [Position 1], Ward [No.], issued 21-09-2012, valid to 20-09-2017;
·     First Information Report (FIR)[2] dated 23 September 2015 naming various people including [Mr A] as a suspect in an occurrence at [a venue], with untranslated body of the report;
[2] (accessed 3 April 2023); see also DFAT Report 5.10
·     FIR dated 8 August 2011 with the complainant named as [name] and named accused, including [Mr B], with the body of the report untranslated;
·     Other untranslated, handwritten and printed documents;
·     Screenshot of what appears to be an identity or membership card in the name of [Mr D]. The name of the organisation is not stated. The card indicates he is a [office] bearer with active years 1973 – 2010, followed by some untranslated paragraphs of text;
·     Letter to Ludhiana Commissioner of Police dated 12 August 2011 from [Ms C] requesting that her son, [Mr B], has been falsely accused [in Criminal Case 1] and he should be released from custody and the FIR cancelled;
·     Letter dated 16 February 2023 from [President], BJP, [which] states that the late [Mr D] was a BJP [Position 1] for Ward [No.]from 1991 to 1996 and his wife, [Ms C] was a BJP [Position 1] for Ward [No.]and then Ward [No] from 2002 to [2012] . The letter also states that their son, [the applicant], has been a very active member of BJP Ludhiana District and,
‘work day and night for the party activities and as [the applicant] was getting name and fame in the area. The opposite parties (rival groups) started sending threatening calls to eliminate him and family members. Because of their fear their parents decided to send him to Australia for his bright future on Study Visa in the year 2008’.
·     Untranslated certificates and identity card, including Death Certificates for the applicant’s parents;
·     Identity card of [Mr D] which states he is a [Position 1] [valid] up to 1996;
·     Identity card for the 31^st National Games Punjab – 2001 for [Mr D], [Position 1];
·     Certificate of course completion dated 17 December 2022 in the name of the applicant for Anger Management 101;
·     Certificate of course completion dated 25 January 2023 in the name of the applicant for Drug and Alcohol Abuse 101.
The hearing
The applicant appeared before the Tribunal on 7 February 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review, however his representative did not attend the hearing.
Post-hearing submissions
On 24 February 2023, the applicant provided post-hearing submissions and resubmitted some of the same documents he had already provided.
In his written submission, the applicant reiterated and elaborated on some of his claims and made additional claims as follows:
·     While his parents had official positions, the applicant was an active member and supporter of the BJP responsible for organising events, holding political rallies, gaining supporters and organising protests.
·     The applicant was wrongly accused of being involved in an altercation at a protest. They started in inquiry into the incident and his alleged involvement deemed him ineligible for the position previously held by his father because it required a person without any brushes with the law.
·     He started getting more and more threats from his political rivals and it escalated to violence multiple times. He was lynched once outside his family home with his family watching and this is when he decided it was no longer safe.
·     After his mother lost in the 2007 election, the opposition grew in power and his family started receiving more threats. There were shots fired at their house and people were following them.
·     The applicant was attacked and beaten severely when he was protesting the arrest of his colleagues outside the police station where they were being held. He was detained for causing public disturbance, trying to incite a riot, trying to cause social unrest and instigating violence on police officers. His family were being regularly harassed and they were concerned for his safety.
·     He comes from a low caste and minority ethnic background and there is discrimination against them.
·     The main reason his family has been targeted is because of his parents’ political career and popularity in spite of their background.
·     His brother was targeted after their father passed away. He was falsely accused of cases.
·     The applicant believes he will be harmed due to his family’s political history and the rivalry with the people who have been in power for too long and have reached beyond the grasp of the laws that are applicable to everyone else.
Nationality
The applicant claims to be a citizen of India and provided to the Department a copy of his Indian passport issued on [date] 2002. The delegate was satisfied that the applicant was using his own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of India. The Tribunal finds India is his receiving country for the purpose of assessing his claims for protection.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant gave evidence that a friend he met in Cairns helped him to fill in his protection visa application form. Another person asked him about his situation and told him what to do. He confirmed that the information in his statement of claims is true and correct.
During the hearing, the Tribunal discussed with the applicant his family, education, employment, political involvement, where he lived in India, his travel history, the problems he experienced in India and why he fears returning to India. The Tribunal has concerns about the truthfulness of aspects of the applicant’s evidence in relation to claimed events in India and overall, did not find him to be a credible witness.
The Tribunal’s concerns are discussed below.
The applicant’s parents and their involvement in politics
In his protection visa application form, the applicant claims that his father was a BJP [Position 1] for [Ward number] from 1992 to 1997 and his mother was a BJP [Position 1] for the same ward from 2000 to 2007 and 2012 to 2018. As referred to above, the delegate attempted to verify this information and found that online information suggested that the applicant’s mother did not hold a position as a [Position 1] for the BJP as claimed by the applicant and that the [Position 1] for [Ward number] from 2012 was a man named [name].[3]
[3] [deleted]
In the additional documents the applicant provided to the Tribunal, he included identity cards of his parents which indicated that his mother and father had been [Position 1s] at the time he claimed. The information provided about his father did not specify the Ward number he represented. The information provided about his mother indicated that she was a [Position 1] for Ward [number] (not [number]) prior to June 2007 and for Ward [number] (not [number]) from 2012 to 2017. The Tribunal was able to verify online that a person with the name of [Ms C] was elected to Ward [number] for the BJP in 2012.[4] In the Tribunal hearing, the applicant gave evidence that after his father lost the election in 1997 he worked for the [a politician]. In 2002, his mother was elected to the same area his father used to represent, but it had been changed to a ‘ladies’ area so the representative had to be a woman.
[4] [deleted]
It is not surprising that the delegate did not accept the applicant’s claim about his parents being elected [Position 1]s given the applicant provided incorrect information about this in his protection visa application form. Based on the evidence provided by the applicant to the Tribunal, the Tribunal is prepared to accept that the applicant’s father and later his mother, were BJP [Position 1]s [for] the years he claims.
In the Tribunal hearing, the applicant gave evidence that his father passed away in 2010 and his mother in December 2022. His brother is married and lives in Ludhiana in the family home which is also where the applicant lived for his whole life before coming to Australia. His sisters live in different states of India and he is not in regular contact with them apart from birthdays and celebrations. The applicant gave evidence that his brother used to work as an assistant to his mother when she was a [Position 1] and now he runs a small [shop] and is subsidised by the government. His mother used to run this business and his family have operated it since 1996. The Tribunal is prepared to accept this.
The applicant’s involvement in politics in India
In his protection visa application form, the applicant claims that he was actively involved in politics in India and he was going to succeed his father in politics after his father expired. He was targeted by rival political groups who were trying to stop him from entering politics and being a candidate in the upcoming elections. He was attacked twice by his opponents who tried to abduct and kill him.
In the Tribunal hearing, the applicant gave evidence that he finished studying in India in April 2007. He graduated with a [degree] from [a] University. He said that he used to help his father in his office when he was a [Position 1]. He used to drive his father to meetings and helped with office administration and answering the phone. Prior to coming to Australia, he also used to help in the shop that his brother runs now and he did some [courses].
The applicant gave evidence that he had been a member of the BJP in India since he was [age]. He is still a member because his parents obtained life membership for him. He does not have evidence of this but his parents were given a receipt. He and his brother were also members of the RSS, because the BJP is part of the RSS. As a member of the RSS, he provided help for the community by working with two charities. One was in a temple and the applicant helped to look after abandoned bodies by organising shrouds and cloths for the bodies before they were taken to funeral pyres, and with the other charity he helped to provide meals for the poor on Tuesday and Saturday. That was all. As a member of the BJP, he helped his mother from 2002 to 2007 by getting people to come to rallies, helping with logistics of transporting them and feeding them, and helping with fundraising. He sometimes also handed out flyers to support his mother and father.
The applicant gave evidence that the talk about him taking over his father’s seat or Ward was when his father worked for the [politician] after he was no longer a [Position 1]. The applicant was not chosen to run for election because the Ward in question became reserved for women. He gave evidence that this was in around 2007. His mother won the election in 2012.
In the hearing, the Tribunal asked the applicant whether he experienced any harm in India due to his political activities. The applicant gave evidence that he was randomly attacked two or three times. The Tribunal asked him when this occurred and he said in was in 2006 and once or twice more but he couldn’t remember when. The Tribunal asked him who attacked him and he said he didn’t know because he didn’t recognise the people or see them but he lodged an FIR. When asked if he had provided a copy of that FIR to the Tribunal he said he had not. The Tribunal asked him where he was attacked and he said it was in his city. When asked if he could be more specific, he said he had forgotten but it was in his city next to his suburb. When asked why he was attacked, the applicant said he did not know why. The Tribunal asked him to describe what happened when he was attacked. He said that three or four people came and tried to fight with him and people nearby stopped the fights and the people ran away. Each time it was something like that. He said he did report this to the police but they did not help him. They asked him questions about who was there and what was going on. When asked why he thinks the police didn’t help him he said he had no idea. The Tribunal asked the applicant whether he had received any threats since he left India. He said he had not, but his brother had.
The Tribunal put to the applicant that what he had told the Tribunal in the hearing about the attacks on him was different from what he had said in his protection visa application form. For example, in his protection visa application form he claimed that he was attacked twice and at least once, his attackers attempted to abduct and murder him, and he reported this to the police but they did not help or register a case due to political influence from the ruling party. He had told the Tribunal that he was involved in fights, but did not mention an attempted abduction and murder. He said that he lodged an FIR with the police, they asked him questions, and he does not know why they didn’t help him. The applicant responded that in the incident when people intervened, that is when he thought he could be picked up and killed but people intervened and the guys ran off. The Tribunal also put to the applicant that it found his evidence about these attacks to be vague and lacking in the type of detail it would expect from someone who was speaking from personal experience, which raised a doubt about the credibility of his evidence. The applicant responded that people with political power put the pressure on but they did not know who they were and they could challenge them but it was political and done in a way that was not ascertainable then and anything could happen at any time.
In his post-hearing submissions, the applicant gave an additional and different account of the harm he suffered in India due to his political activities. He claimed that he started getting more and more threats from his political rivals and it escalated to violence multiple times. He was lynched once outside his family home with his family watching and this is when he decided it was no longer safe. He also claimed that he was attacked and beaten severely when he was protesting the arrest of his colleagues outside the police station where they were being held. He was detained for causing public disturbance, trying to incite a riot, trying to cause social unrest and instigating violence on police officers. This evidence is quite different from the evidence he gave in the Tribunal hearing and from his claims in his protection visa application form.
In his post-hearing submissions, the applicant also claims that he was wrongly accused of being involved in an altercation at a protest. He said they started in inquiry into the incident and his alleged involvement deemed him ineligible for the position previously held by his father because it required a person without any brushes with the law. He also claims that there were shots fired at his family’s house and people were following them.
The Tribunal has a number of concerns with the applicant’s evidence about his involvement in politics in India and the harm he claims to have suffered.
The Tribunal has accepted above that the applicant’s parents were both [Position 1s] at different times. The Tribunal is prepared to accept that the applicant assisted his parents in their roles in the way he has described and was also involved in charitable work connected to the RSS and the BJP as he has described.
The Tribunal has concerns about the applicant’s evidence relating to the harm he suffered in India as a result of his political activities. As discussed above, the applicant gave different evidence in his protection visa application form and in the Tribunal hearing about the harm he suffered and the involvement and attitude of the police and the reason for this. In the Tribunal hearing, he did not refer to an attempted abduction and killing until reminded of this claim by the Tribunal. As also discussed above, the Tribunal has concerns about the vague nature of the oral evidence given by the applicant in the Tribunal hearing about the harm he claims to have suffered, including not being able to remember meaningful detail about where the attacks occurred or when, or what happened on different occasions, and saying that he did not know why he was attacked or by whom. This is a particular concern given how important these claimed attacks are to the applicant’s case.
In his post-hearing submissions, made after the Tribunal had expressed its concerns about various aspects of his evidence including the claimed attacks, the applicant made far more specific claims about the harm he experienced and changed his evidence about where the claimed beatings or attacks took place. In the Tribunal hearing, he said these fights took place in the city next to his suburb. In his post-hearing submissions, he claims that one beating took place outside his house with his parents looking on and another occurred outside a police station. He also makes new claims that he was wrongly accused of being involved in an altercation at a protest which is why he was ineligible for the position previously held by his father, and that there were shots fired at his family’s house. The differences in the applicant’s evidence about the beatings and the fact that he only raised some of these matters for the first time after the Tribunal hearing, following the Tribunal expressing its concerns, raises doubts for the Tribunal about his credibility.
Further, in terms of the applicant’s new claim that he was wrongly accused of being involved in an altercation at a protest and the inquiry into this incident meant he was ineligible for the position previously held by his father because it required a person without any brushes with the law, the Tribunal notes that the applicant had previously given evidence in the Tribunal hearing that the reason he was not able to run for the seat or Ward was because it was turned into a ‘ladies’ seat or Ward and so he was ineligible to run (and his mother subsequently ran successfully for this Ward). This change in the applicant’s evidence raises further concerns for the Tribunal about his credibility.
In his letter of support, the applicant’s brother refers to problems he claims to have experienced in India due to his family’s involvement in politics for the BJP. The applicant’s brother refers to false cases he was implicated in but does not refer to any particular problems the applicant experienced before leaving India. In the context of this letter of support, the Tribunal would expect the applicant’s brother to have mentioned such incidents if they truly occurred.
For the reasons explained above, the Tribunal has concerns about the credibility of the applicant’s claims to have suffered harm in India due to his political involvement.
The applicant’s brother
As discussed above, in the Tribunal hearing, the applicant gave evidence that his brother used to work as an assistant to his mother when she was a [Position 1] and now he runs a small [shop] and is subsidised by the government.
The applicant has given evidence that his brother was implicated in false cases due to political rivals of his family. He said that his brother still suffers from these cases and while his brother is not in hiding, he still has problems. In the hearing, the Tribunal asked the applicant why he only raised these claims about the problems his brother was having for the first time with the Tribunal. The applicant responded that he had nobody to guide him and had no knowledge.
As noted above, the applicant has provided various documents which he claims purport to relate to the problems his brother has experienced in India. He has also provided a written statement from his brother. In that written statement, the applicant’s brother refers to himself as [Mr A]. Some of the documents provided by the applicant which he claims relate to his brother refer to a person called [Mr B]. The Tribunal is prepared to give the applicant the benefit of the doubt and find that this is the same person. That does not mean the Tribunal accepts all these documents and gives them any weight.
As discussed with the applicant in the hearing, a number of the documents have not been translated into English and so the Tribunal gives them no weight. Several other documents, including the FIRs from 2011 and 2015, are partially in English but the body of these documents, which presumably contains the details of the alleged incidents, have not been translated. The Tribunal is prepared to accept that these FIRs name the applicant’s brother but it gives the documents no weight in terms of the substance of the claimed incidents or the consequences.
There is a letter dated [August] 2011 from the applicant’s mother to the Ludhiana Commissioner of Police claiming that the applicant’s brother was falsely accused [in Criminal Case 1]. The judgment dated [2016] from the [courtof] Sessions Judge, Ludhiana, acquits the accused, including [Mr B], of the charges made against [them]. The Tribunal is prepared to accept that the applicant’s brother was involved in a case relating to [Criminal Case 1] and finds that he was acquitted of the charges. As noted above, the other judgement dated [in] 2005 does not appear to name any of the applicant’s family as accused persons. The Tribunal gives this document no weight.
In his letter, the applicant’s brother refers to being acquitted [in Criminal Case 1] in 2016. He states that he was falsely implicated in another case in 2015 which is still pending in court. He does not describe the nature of that other case or provide any further detail. The Tribunal is prepared to assume he is referring to the 2015 FIR mentioned above, but as stated, the body of that document has not been translated. The applicant has not provided any evidence to support his claim that the 2015 case is still pending in court.
In any event, as the Tribunal put to the applicant in the hearing, even it if accepts that his brother was involved in these events as claimed, they are things that have happened to his brother after the applicant left India and did not involve him. The Tribunal put to the applicant that it might not be satisfied that this means he (the applicant) would face harm if he returned to India. The applicant responded that he would face harm because of his family. The Tribunal also put to the applicant that given the considerable length of time that has passed since he left India and the fact that his mother and father have passed away, it might not accept that he would face harm if he returned. He responded that all the family is the same and he would have gone back if he was not afraid.
Later in the hearing, when asked if anything else happened to his brother apart from the false claims, the applicant said that last year his brother was interviewed in a video talking about politics and then he was stabbed by a political opponent. The Tribunal does not accept this. If this truly happened, the Tribunal considers that the applicant’s brother would have mentioned it in his letter, but he only mentioned being implicated in false cases. This raises further concerns for the Tribunal about the applicant’s credibility.
The applicant’s migration history
In his protection visa application form, the applicant claims that he left India because of the political pressure and violence towards him and that he experienced two attempts on his life by political opponents. He escaped to Australia on a Student visa.
In the Tribunal hearing, the applicant gave evidence that he applied for a Student visa because there was a lot of political pressure in the community and he wanted to get out of it and he wanted to study. He was [age] years old when he came to Australia. His Student visa was granted on 14 October 2008 and he departed India about six weeks later. The reason for this is that his sister was getting married and it was Diwali so he had to wait for that before he left. The Tribunal put to the applicant that it did not sound as though he was in a hurry to leave India. He did not respond.
The applicant explained that in Australia he started studying [a subject] and then changed to [another subject]. He did not complete his studies because his father died and he was upset. The medical treatment costs were high and his family couldn’t afford to help the applicant so he didn’t complete his course and he became an overstayer on his visa. The Tribunal asked the applicant why he waited until 2018, 10 years after arriving in Australia, to apply for a protection visa and spent so long without a visa. The applicant said he didn’t want to return to India but he was under mental stress and didn’t have much money and didn’t know what he was doing. He said he knew about protection visas because of his graduation in [a field] (in India) but he was mentally stressed and didn’t know what to do. Some friends explained to him that he met the criteria and then around the same time, his brother was picked up by the police when his father died. The Tribunal pointed out to the applicant that his father died in 2010 and he applied for protection in 2018. He reiterated that the police took his brother. The Tribunal put to the applicant that his delay of 10 years in applying for a protection visa after arriving in Australia might raise a doubt about whether his application is genuine. The applicant responded that he fears returning to India, nobody guided him and he had the responsibility of his family. The Tribunal asked him why his responsibility to his family was a reason to delay his application. He said that during this time he was stressed and worried about his brother. He felt ashamed that he could not help his brother and he was struggling in Australia and had no guidance. Later, he said that after his father passed away and the harassment of his brother became clearer he could not return and this is why it took him a long time to decide to apply for protection.

The Tribunal has considered the applicant’s evidence about this but does not accept it for various reasons. First, the applicant gave evidence that he did not leave India sooner after he was granted his student visa because he had to stay for his sister’s wedding and Diwali. The Tribunal considers that if the applicant had been in fear for his life and needed to escape India, as he claims, he would have departed sooner. Secondly, the applicant has given evidence that he knew about protection visas even before he arrived in Australia and around the time his father died in 2010, some friends told him he met the criteria. In the Tribunal’s view, the fact that he did not apply for a protection visa shortly after arriving in Australia, or soon after his Student visa was cancelled, but waited until he had been in Australia for 10 years and had spent over 8 years as an unlawful non-citizen, undermines his claims to have fled India for his safety and to fear harm if he returns. The Tribunal considers that if the applicant was concerned by the harassment of his brother and what that meant for the applicant if he returned, this would have been all the more reason to apply for protection sooner rather than delaying. The Tribunal has considered the applicant’s evidence that he was stressed and didn’t have much money and nobody guided him, however this explanation does not overcome the Tribunal’s doubts and concerns.
In the Tribunal’s view, the timing of the applicant’s departure from India and his considerable delay in applying for protection raises concerns about the genuineness of his claims.
The applicant’s involvement in politics since leaving India
In the Tribunal hearing, the applicant gave evidence that he had not been involved in politics since coming to Australia. He said he still followed what was going on via social media. He said that before he was in detention, about once a month he used to be in contact with party leaders at the state level through his brother about what was going on. His last contact was in about March 2022. He does not have any evidence of this.
The Tribunal is prepared to accept that the applicant has maintained an interest in politics in his city in India since being in Australia. The Tribunal finds that he has not been involved in any meaningful way.
Findings
In light of the Tribunal’s concerns set out above about the credibility of various aspects of the applicant’s evidence, and having considered all the applicant’s claims and evidence, the Tribunal finds as follows.
As set out above, the Tribunal is prepared to accept that the applicant’s father and later his mother, were BJP [Position 1]s [for] the years he claims. The Tribunal accepts that the applicant’s father passed away in 2010 and his mother in December 2022. The Tribunal accepts that the applicant’s father was a member and supporter of the RSS. The Tribunal accepts that the applicant was a supporter of the RSS and a member of the BJP. The Tribunal accepts that while in India, the applicant used to help his father in his office when he was a [Position 1] by driving his father to meetings, helping with office administration and answering the phone. The Tribunal also accepts that prior to coming to Australia, the applicant used to help in the [shop] that his family ran since 1996 and which his brother now runs.
The Tribunal accepts that the applicant did charity work in India connected to the RSS, which involved helping with abandoned bodies in a temple and providing food for the poor. The Tribunal accepts that the applicant helped his mother in connection with her role as a [Position 1] from 2002 to 2007 by getting people to come to political rallies, helping with logistics of transporting them and feeding them, helping with fundraising and sometimes handing out flyers to support his mother and father.
The Tribunal does not accept that the applicant was targeted by rival groups to stop his family from fielding him as a candidate for the seat formerly held by his father or that he was wrongly accused of being involved in an altercation at a protest and the inquiry into this incident meant he was ineligible to run for the Ward position previously held by his father because it required a person without any brushes with the law. The Tribunal accepts the applicant’s evidence that this seat or Ward was recategorized as a ‘ladies’ seat and so the applicant was not eligible to be a candidate. It follows from this that the Tribunal does not accept that rival groups are still looking for the applicant and want to prevent him from gaining the position his father once held.
Based on the Tribunal’s concerns set out above, the Tribunal does not accept that the applicant suffered harm in India as a result of his, or his family’s, involvement in politics. The Tribunal does not accept that in India the applicant was attacked twice, or at all, by political opponents, or anyone else, or that his attackers tried to abduct him and kill him. The Tribunal does not accept that the applicant was attacked in his city next to his suburb, or outside his house, or outside a police station. It follows that the Tribunal does not accept that the applicant reported his attacks to the police but they refused to help or register a case due to political influence from the ruling party. It also follows that the Tribunal does not accept that the applicant reported the attacks to the police and lodged an FIR and that the police asked him questions but did not help him for some unknown reason. The Tribunal does not accept that the applicant was detained for causing public disturbance or for any other reason, or that his family’s house was shot at, or that people were following them. The Tribunal accepts that the applicant has not received any threats since leaving India. Given these findings, the Tribunal does not accept the letter from [Mr E] dated 16 February 2023 which states that the applicant started receiving threatening calls from rival parties to eliminate him which is why his parents sent him to Australia in 2008, and gives this statement no weight.
Based on the lack of evidence and the Tribunal’s concerns about the applicant’s credibility, the Tribunal does not accept that the applicant was implicated in any false cases before he left India or since. The Tribunal is prepared to accept that the applicant’s brother was involved in [Criminal Case 1] and was acquitted in 2016. The Tribunal is prepared to accept that the applicant’s brother was named in an FIR in 2015 but based on the lack of evidence, it does not accept that this case is still pending in court. The Tribunal finds that these incidents occurred after the applicant left India and had nothing to do with him. Based on the lack evidence before it, the Tribunal is not satisfied that these matters involving the applicant’s brother were politically-motivated. The Tribunal does not accept that these incidents involving the applicant’s brother indicate that the applicant would be implicated in false cases if he returned to India. The Tribunal does not accept that the applicant’s brother was stabbed by a political opponent after appearing in a video last year.
The Tribunal is prepared to accept that the applicant has maintained an interest in politics in his state of India since being in Australia. The Tribunal finds that he has not been involved in any meaningful way in Australia.
The Tribunal does not accept that the applicant escaped India in fear of his life or that he fears returning there for the reasons claimed.
Does the applicant meet the refugee criterion?
In his protection visa application form, the applicant claims that he fears returning to India because his political opponents will harm him due to his affiliation with the BJP and RSS. He makes the same claim in his pre-hearing submissions and in his post-hearing submissions. In the Tribunal hearing, the applicant gave evidence that he fears returning to India because he will be harmed due to his political background. The Tribunal has found above that the applicant did not suffer harm in India due to his political background or for any other reason.
The Tribunal has accepted that the applicant was a member and supporter of the BJP in India, and a supporter of the RSS, and that he was involved in various charitable activities in connection with these organisations and helping his parents with their political activities. The Tribunal has considered whether the applicant would face a real chance of serious harm as a result of his past involvement in these activities if he returned to India in the foreseeable future.
The DFAT Report explains[5] that India’s constitution provides for freedom of speech and expression, freedom of assembly, and the right to form associations. 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 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’. 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 parties in India. India’s Prime Minister Narendra Modi of the Bharatiya Janata Party (BJP) was first elected in May 2014 and was re-elected for a further term in 2019. In Punjab, where the applicant is from, the most recent state elections were won by the Aam Aadami Party, with 92 seats out of a total 117. The BJP won two seats and Congress won 18.[6]
[5] See 2.6 to 2.7; 3.80 to 3.82; 3.91.
[6] (accessed 3 April 2023)
DFAT assesses that 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.
As set out above, the Tribunal has found that the applicant did not suffer harm in India in the past in India due to his involvement in political activities in support of the BJP and RSS. In light of this, and the country information referred to above, the Tribunal finds that the applicant would not face a real chance of serious harm arising from these circumstances if he returned to India in the foreseeable future.
The Tribunal has also considered whether, and if so how, the applicant would involve himself in politics if he returned to India in the foreseeable future and whether he would face a real chance of serious harm as a result. The Tribunal is prepared to accept that due to his family background the applicant remains a member and supporter of the BJP and a supporter of the RSS. In the Tribunal hearing, the applicant gave evidence that if he returned to India he would not be involved in politics because he is scared and referred to the fake cases that he claims were made against his brother. The Tribunal put to the applicant that it might not accept that he would be actively involved in politics if he returned to India, and it might not accept that it would be for the reason that he is scared. The applicant responded that he cannot say what activities he might do, but he was very active when he was there before. The Tribunal also put to the applicant that it might find given he has been absent from India for around 15 years he would not be of interest to past political rivals if he returned. As discussed above, the Tribunal has found that the applicant has maintained an interest in politics in India while he has been in Australia but that he has not been involved in any meaningful way. The Tribunal has also found, as set out above, that the applicant was involved in various politically-related activities in the past.
Based on the applicant’s evidence, the Tribunal considers that the applicant’s political involvement and activity in the past was very much connected to, and in support of, his parents’ positions in politics. The situation now is that both the applicant’s parents have passed away and the applicant does not have family members who are politicians and require his support and assistance and he has been absent from India for around 15 years. As set out above, the Tribunal is not satisfied that the cases or matters involving the applicant’s brother were politically-motivated and the Tribunal does not accept that he was stabbed. The Tribunal is prepared to accept that the applicant is still a member of the BJP, and a supporter of the BJP and RSS. The Tribunal finds that if the applicant returned to India in the foreseeable future, he would maintain an interest in politics and he may involve himself in charitable activities carried out by the BJP and the RSS like he did in the past as a supporter. The Tribunal does not accept that he would involve himself in the types of activities he undertook to assist his parents or that he would attempt to put himself forward as a political candidate. The Tribunal finds that this would not be because he is scared, but because his active involvement was very much connected to his parents and that connection no longer exists, and the applicant has not been actively involved in politics in India since being in Australia. Based on the country information referred to above, including that members of opposition parties (which is what the applicant would be given the BJP’s position in Punjab) do not face official or societal discrimination on a day-to-day basis, as well as the Tribunal’s findings above about the way the applicant would involve himself in politics in India if he returned, the Tribunal finds that the applicant would not face a real chance of serious harm arising from these circumstances if he returned to India in the foreseeable future.
The applicant claims to be a member of a low or scheduled caste and this is also part of the reason he fears harm if he returns to India. The applicant has provided a document entitled ‘Scheduled Caste Certificate’ that appears to contain the name of his father but otherwise the certificate has not been translated into English. He has provided another certificate with the same title that is completely untranslated. As the Tribunal does not know what the second certificate says it gives that document no weight. The Tribunal is prepared to accept that the applicant’s father was a member of a ‘scheduled caste’ (SC) which according to the DFAT Report is the government’s official term for Dalits.[7] The Tribunal is prepared to accept that the applicant is also a member of this caste even though he has not provided any evidence to support this.
[7] DFAT Report 3.147.
In relation to Dalits, the DFAT Report explains that Dalits were sometimes referred to as ‘untouchables’ or ‘outcastes’ and fell outside the caste structure. Dalits were historically associated with work seen as less desirable; including work involving cleaning or waste, and traditional taboos existed against members of the four castes touching them. Many Dalits continue to work as sanitation workers, manual scavengers, cleaners of drains, garbage collectors and road sweepers. In 2019, it was estimated 40-60 per cent of the 6 million households of Dalit sub-castes were engaged in sanitation work. In recognition of entrenched disadvantage, the Indian constitution contains several provisions relating to SCs (mainly Dalits) and others which include the establishment of separate National Commissions for SCs and others; reservation of seats in the Lok Sabha and state government legislatures; public service appointments; and access to higher education. Article 17 abolishes the practice of untouchability. Some Dalits have achieved high office, helped in some cases by quotas for educational, public service and political representation. Dalit NGOs, community groups and chambers of commerce exist. India’s President, Ram Nath Kovind, is a Dalit from the ruling BJP and is the second Dalit to hold that position. Nonetheless, human rights observers note the problem of social ostracism remains for Dalits. The International Dalit Solidarity Network (IDSN) claims, while legal mechanisms are in place to protect Dalits, their implementation is weak and inconsistent. IDSN reports instances of bonded labour, abuse of Dalit women and girls and the hereditary occupation of ‘manual scavenging’ (removing human excreta from dry latrines). Official crime statistics show violence towards Dalits continues, with the rate of crime against SCs by non-SCs around 21 per cent in 2018. DFAT assesses Dalits and other people considered to be of a low caste face a high risk of official and societal discrimination, including social segregation, exclusion, compromised access to education and health care, and a higher risk of sexual assault in the case of women and girls.[8]
[8] See DFAT Report 3.146 to 3.154.
In the Tribunal hearing, the applicant was asked about the type of discrimination he feared as a result of belonging to a lower caste. He gave evidence that one risk was to be considered less than others because no matter how much you are educated, there is still a sense that you don’t get a fair go. He said he also feared that because of the influence of political leaders, they can attack you in an indirect way and cause a riot in your area and you would get hurt. They can do anything. The Tribunal asked the applicant whether he had personally experienced discrimination. He responded that his friends asked him about his caste when he was young and said he could not do things like eat or sit with them. He said there were lots of things everywhere and they can do anything.
The Tribunal has considered the applicant’s evidence and the country information. The Tribunal has accepted that the applicant’s parents were elected politicians [and] his father later worked for the [a politician]. The applicant completed tertiary education at [a] University. His family were able to afford to send him to Australia to study. His family runs a [shop] and his brother continues to live in the family home with his own family. Based on the applicant’s evidence, the Tribunal considers that while his family are Dalits, they have been relatively successful. They have political connections and are not engaged in or associated with the types of work referred to in the country information above as historically associated with Dalits. The applicant gave evidence that his parents were popular in their area, which is evidenced by them being elected [Position 1]s. The Tribunal has noted DFAT’s assessment of the level of risk and type of discrimination faced by Dalits in India, however the Tribunal does not accept that this assessment necessarily applies to the applicant personally. The applicant has received access to higher education and his family has connections and was involved in politics, which is not indicative of the applicant having suffered from official discrimination in India or social segregation or exclusion. The applicant did not claim that he or his family had experienced compromised access to health care in India. While the Tribunal notes the applicant’s evidence that when he was young his friends used to ask him about his caste and said he could not do things like eat or sit with them, the Tribunal does not accept that this amounts to harm or serious harm. The applicant’s claim about political leaders inciting riots is vague and speculative and not supported by the country information and the Tribunal does not accept it. The Tribunal has found above that the applicant did not suffer harm in India due to his family’s political activities or for any other reason. Based on the evidence before it, the Tribunal does not accept that the applicant suffered harm in the past due to being a member of a SC and the Tribunal finds that if the applicant returned to India in the foreseeable future he would not face a real chance of serious harm for this reason. The applicant being a member of a SC does not change the Tribunal’s assessment of whether he would face a real chance of serious harm as a result of his political involvement if he returned to India in the foreseeable future.

Taking into account the findings set out above and the country information referred to 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 that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[9] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm for any reason. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
[9] MIAC v SZQRB [2013] FCAFC 33
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.
Rachel Da Costa
Member

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

[2023] AATA 1728

4 April 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction