2017530 (Refugee)

2017530 (Refugee) [2024] AATA 2268 (12 March 2024)

DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Chaofeng Guan (MARN: 0001896)
CASE NUMBER:  2017530
COUNTRY OF REFERENCE:                   India
MEMBER:Rosa Gagliardi
DATE:12 March 2024
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 March 2024 at 11:03am
CATCHWORDS
REFUGEE – Protection Visa – India – applicant refused to attend hearing – applicant did not provide additional information in relation to his claims – applicant was married to a wealthy Indian woman – fears harm from wife’s family – applicant has failed to establish his claims – – delay in applying for protection in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 56, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 11 December 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 (a matter which on the material before it the Tribunal accepts) applied for the visa on 22 July 2017.
The delegate refused to grant the visa on the basis that the decision-maker in the first instance was not satisfied that the applicant was a refugee as defined by s.5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s.36(2) of that Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to India there is a real risk he will suffer significant harm as defined in s.36(2)(aa) of the Act.
The applicant’s engagement with the Tribunal
The Tribunal wrote to the applicant on 8 February 2024 to invite him to a hearing scheduled for 5 March 2024 at 10:00am [EST]. The invitation advised the applicant that the Tribunal had considered the material before it but had been unable to make a favourable decision on this information alone. The applicant was also informed that if he was unable to appear on the scheduled date and time he should request a postponement in writing as soon as possible, providing the reasons for making the request.
On 2 March 2024 the applicant’s representative wrote to the Tribunal to advise that the applicant wished the Tribunal to make a decision on his review application without the need to conduct a hearing and that he would not be appearing at the scheduled hearing on
5 March 2024.
The Tribunal understands that proceeding to decision on the material before it entails a discretion only and that careful thought needs to be given to ensuring fairness to the applicant. In this instance, the Tribunal is satisfied that the applicant did not wish to attend a hearing and that he accepted that the Tribunal need not necessarily take any further steps to enable him to appear before it.
The applicant has provided the Tribunal with a copy of the Departmental decision for the purposes of the review.
In passing, the Tribunal notes that on 8 October 2020, the applicant was sent a letter via email inviting him under s.56 of the Act to provide additional information about the claims in his application. He was also invited to provide clarification on particular points about his claims and submit evidence to support his claims.
Additionally, the applicant was also asked to comment on the reason for the delay with him seeking protection in Australia if he was genuinely fearful for his safety. The applicant was given 28 days to provide a response to the s.56 invitation request. As of the date of writing the Departmental decision (11 November 2020) the applicant did not provide additional information in relation to his claims, including that requested in the s.56 invitation. There was also no evidence that the applicant had attempted to contact the Department to provide further information about his claims or request additional time to respond to the s.56 invitation.
The Department noted that at the time it had been more than three years since the applicant lodged his protection visa application. It was therefore considered that the applicant had been given a reasonable opportunity to provide additional information and evidence to substantiate his claims and the Department proceeded to decision without taking any further action.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of persecution for reasons set out in s.5J(1) of the Act, and there is a real chance that if the applicant returned to India now or in the reasonably foreseeable future, he would be persecuted for one of those reasons and/or whether he would suffer serious harm. Alternatively, the Tribunal must assess whether the applicant meets the complementary criteria.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims at the time of application
The applicant stated in his application that he and his wife decided to move to Australia to study. He answered “yes” to the question as to whether he feared harm in his home country, India.
Asked to provide details about the type of harm experienced and who was responsible, the applicant wrote, “I & my wife got married by love marriage and her family was not happy with it. Also her family was against of that we married & live together. They were not respecting me and accepting me”.
The applicant indicated that he had not sought help within his country after the harm. Asked to provide details about why he did not seek assistance in his country, the applicant responded, “I & my wife were looking for our bright future together. My wife chose Australia for study and based on her eligibility for student visa, we moved here”.
The applicant also indicated he did not try to move to another part of the country as “I & my wife decided to move Australia for study and she applied for student visa and I was on her dependent visa”.
The application form also invited the applicant to explain what he thought would happen to him if he returned to India and he answered (as written):
After arriving in Australia, My wife was studying and I was on her dependent. My wife’s family is too rich and they paid for her fees & expenses for both of us. After a few months upon arrival, suddenly my wife returned back to India without informing me as her family was more interfering in our relation from the beginning since we got married to each other and her family was not happy that we live together so they continued provoke my wife via phone calls to against my self to getting separate from me and told her to return back to India. Her family paid for her return ticket and she went back to over there without letting me know. Same day when I was searching for my wife here in Australia and couldn’t find her, I reported to police here in Australia but eventually I knew that she is gone back to India. I got shocked on that time and felt my self so stressed and depressed. I was completely broken from inside. Once she reached over there, her family started to demanding money from me and now they are threatening me when I will return back to India, they will kill me. I’m still feeling so stressed & depressed my self. I’m very scary to going back.
The applicant wrote that he thought he will be harmed on return to India as his wife’s family continue to threaten him and when he returns to India, they will kill him or “will do my murder by goons to paying them”.
The applicant contended that the authorities of India would not and could not protect him as his wife’s family was too rich and they have good contacts with political leaders and the police and “They are willing to pay money to police & political leaders as corruption and I’m scaring that I will not get protection anywhere in India. If I will go back, definitely they will kill me”.
The applicant stated that he did not think he would be able to relocate within India to an area where he would not be harmed because:
I’m not feeling my self safe or protected any part of India because most of the place has corruption over there and my wife’s family has high contacts with the political leaders & police. In India, police & political leaders has high record of corruptions. Also my wife’s family is too rich and they are willing to pay money as corruptions. If I will live any part of India they will find me easily and they will kill me anyhow. If I will go back then every single day, I will find my self in danger and scary situation.
Prior to advising the Tribunal that he did not wish to attend a hearing the applicant submitted the following signed but undated statement:
…I urgently seek protection in Australia due to the severe and credible threats to my safety from my wife’s family in xxx, India. This request is grounded in a history of persecution and intimidation that began with my marriage to a woman from a significantly wealthier and more influential family.
My wife’s family, including her father and grandfather, are prominent businessmen in xxx, engaged in various enterprises such as stockholding, ice factories, and other ventures, with assets mount to millions of dollars. Despite their wealth, they have demanded money from me, not out of necessity but as a means to inflict suffering. They have made it clear that failure to comply would result in physical harm to me.
The opposition to our marriage stemmed from their perception that my financial status was not commensurate with their social standing. Despite our legal marriage registration in September 2014 and a subsequent traditional ceremony held by my family in July 2015, her family has relentlessly sought to dissolve our union. They pressured us to separate and divorce, undermining our relationship at every turn.
Upon moving to Australia for studies, where my wife received a student visa and I accompanied her as a dependent, her family’s interference escalated. They persistently contacted my wife, coercing her to return to India and sever ties with me. Succumbing to this pressure, she left Australia within five months of our arrival, her departure clandestinely arranged by her family without my knowledge.
The threats I face are not merely familial disputes but are magnified by her family’s extensive connections within political circles and law enforcement. This network enables them to extend their reach to harass or harm me anywhere in India, making any location within the country unsafe for me. The fear of retribution is palpable, extending to the possibility of being targeted by hired goons or being subjected to police harassment, regardless of whether I am legally divorced from my wife. The risk to my safety is compounded by the potential for vengeance due to the perceived damage to their family’s reputation caused by our marriage.
Given these circumstances, my plea for protection in Australia is driven by a well-founded fear for my life and well-being, should I be forced to return to India. The constant threat of violence, harassment, and the powerful influence wielded by my wife’s family over local authorities leaves me vulnerable to persecution and without hope for safety, away from the imminent dangers posed by my wife’s family and their extensive political and social leverage.
The applicant’s migration history
5 June 2013 – applicant granted a Class ZM subclass 988 maritime crew
[dates] October 2013 – applicant travelled to [Country 1] as a visitor
10 July 2015 – applicant granted Class TU subclass 573 student visa a secondary visa holder
5 May 2016 – applicant’s subclass 988 maritime crew ceases
5 May 2016 – applicant’s subclass 573 student visa cancelled (applicant became unlawful when he failed to depart Australia following the cessation of his subclass 988 maritime crew visa and the cancellation of his subclass 573 student visa).
6 May 2016 – the applicant seeks review of the cancellation decision
2 June 2016 – the Tribunal finds it has no jurisdiction to review the visa cancellation decision
17 June 2016 - the applicant lodges Class UB subclass 602 medical treatment visa application
22 June 2016 – applicant refused subclass 602 medical treatment visa application
5 July 2016 – applicant seeks review of his subclass 602 visa refusal decision
23 March 2017 – the Tribunal affirms subclass 602 visa refusal decision
22 July 2017 – applicant lodges current Class XA subclass 866 Protection visa application
FINDINGS AND REASONS
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all their claims.
On the other hand, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
The Tribunal invited the applicant to a hearing because it had concerns about his claims. The applicant declined the opportunity to appear before it to provide further information about his claims even after being made aware that on consideration of all the material before it relating to his application, the Tribunal was unable to make a favourable decision on that information alone.
The applicant essentially claims that he was married to a wealthy Indian woman and that her parents did not approve of her marriage to the applicant because he was not of the same status. The applicant claims his wife left Australia due to the pressure she was placed under by her parents to return to India. The applicant fears returning to India because his wife’s family is well connected within political circles as well as with the law enforcement apparatus all over India, and the applicant could not relocate because with their resources he would be easily found and persecuted through hired “goons” used by the applicant’s wife’s parents.

The Tribunal has had regard to the latest statement by the applicant but continues to have significant concerns about his claims. Had the applicant attended a hearing it would have liked to ask him why his parents-in-law were prepared to financially invest in the combined future of the applicant and his putative spouse only to recall his wife back to India after five months of her being in Australia and studying. While they may have been wealthy, it seems incongruous that the applicant’s wife’s parents would expend their resources on a common future for the applicant and their daughter to stay in a foreign country away from the parents’ claimed influence and control, when it is claimed that they opposed the union so intensely.
The Tribunal also has questions about why the applicant and his claimed spouse would have held a traditional ceremony in July 2015 if the applicant’s wife’s parents were vehemently opposed to the marriage. A traditional marriage ceremony in India would indicate a level of acceptance by the parties’ families as it is an open and very public event.[1] If the applicant’s family was not wealthy the Tribunal would have liked to ask the applicant who had paid for the traditional ceremony and whether the applicant’s wife’s parents had contributed given their wealth and status. The Tribunal has many unanswered questions about this traditional wedding ceremony and questions if the applicant came from a poor background how his family could have paid or made a contribution towards it.
[1] What to Expect at an Indian Wedding: Traditions & Customs (theknot.com).
The Tribunal would have also liked to explore with the applicant at hearing the courting rituals entered into by the applicant and his wife prior to the actual marriage and whether the applicant’s wife’s parents had done anything to impede them getting to know one another. Given the disparity in their claimed social status, the Tribunal has many questions as to how the applicant and his spouse were able to get to know one another before being able to make a decision to marry.
The applicant has claimed in his undated and most recent statement that his wife’s family has relentlessly sought to dissolve their union and pressured them to divorce, yet there is little information about how they did this on a practical level given that the applicant and his wife were in Australia in and after 2015. The Tribunal understands that the applicant states that his wife’s parents used the phone to contact her and pressure her to end the relationship, yet this sits at odds with the claims that the applicant’s wife’s parents funded their travel to Australia in the first instance.
The applicant has claimed that he reported his wife missing to the police in Australia. The Tribunal would have liked to ask the applicant whether he had evidence of having done so and to provide detail about what day precisely his wife might have left. Other questions concern whether he and his wife were living together at the time she departed and whether he had made contact with his wife’s parents in India to ascertain whether they had information about her whereabouts. Moreover, the applicant does not detail how he realised that his wife had returned to India. For example, she may simply have moved interstate. The Tribunal has no information to substantiate that the applicant undertook a thorough search for his wife through the authorities or somehow else, and how he concluded she had returned overseas. The Tribunal finds the applicant’s claims about the departure of the applicant’s wife and the reasons for it vague and general and unsubstantiated.
The applicant has also stated that when he became aware that his wife had returned to India, he became shocked and depressed and was “broken inside”. The Tribunal would explored with the applicant whether he had sought medical or other assistance in Australia for such claimed depression and whether such persons could provide verifiable reports that the applicant was suffering at the time because his spouse had left him to return to India due to her parents’ control over her, because they wanted the applicant and their daughter to separate.
The applicant has also made wide ranging and general claims about his wife’s family being well connected in political and law enforcement circles. Had the applicant attended a hearing the Tribunal would have liked to ask him who in particular his wife’s parents were connected to in India and how his wife’s family benefited from such connections on a day-to-day basis. The Tribunal has no information before it that would indicate that his wife’s parents have tried to contact him in Australia to threaten him that they would kill him, for example.
The Tribunal also finds that the applicant’s conduct in Australia is not persuasive of someone who has a genuine and abiding fear of persecution given that he lodged his protection visa application when it appears that his options for remaining in Australia lawfully were narrowing. The Tribunal would have liked to query the applicant why it took him several years to lodge a protection visa when he claims that his wife left him to return to India and the family commenced extorting him for money and threatening to kill him. The applicant clearly was adept at navigating the migration system in Australia pursuing applications and reviews (unrelated to his protection claims) and yet did not consider giving utterance to his fears of returning to India at any time prior to 22 July 2017. This is even though the applicant would have been liaising with the Department to some extent over his previous applications.
Having applied for a Medical Treatment visa the applicant would have been aware that this is not a permanent visa, and the Tribunal would have asked him at hearing why he had considered that a temporary visa would protect him from harm from his wife’s family and their associates in India, when had his fear of returning to India at any time been genuine and profound, it was open to him to apply for a protection visa much earlier than he actually did. The Tribunal finds that the applicant’s timing in lodging a protection visa only after he had attempted several avenues of remaining here unsuccessfully, undermines his claims that he has a fear of being seriously harmed or killed by his parents-in-law or associated goons in India.
The Tribunal would have liked the applicant to discuss why his wife’s family resorted to extorting money from him given the family was wealthy and they had attained their claimed goal of wanting their daughter to return to India. In any event, the Tribunal has questions about whether the applicant ever gave his wife’s parents money and whether he might have reported them to the police in Australia, for example. The Tribunal also has questions as to what method they used to make financial demands when they were in India, and he was in Australia.
At a hearing the Tribunal would have discussed with the applicant whether given he claims his spouse had returned to India within five months of arriving in 2015, some eight years ago now, they continued to be married or had officially divorced and whether after all this time his wife’s family continued to have an interest in him.
The Tribunal finds that the applicant has failed to establish his claims. The Tribunal has many unanswered questions about the applicant’s claims and finds that the information is general, lacking in detail, sweeping and does not provide the Tribunal with conviction that the events the applicant claims occurred actually did so.
On the very limited evidence the applicant has provided either the Department or the Tribunal, and taking into account that the applicant made a decision to decline attending a hearing to provide realistic and detailed information, the Tribunal does not accept that:
·The applicant has experienced harm in India at the hands of the applicant’s wife’s parents because they did not accept him as a son-in-law, being from a lower social and economic status to them and because he and his wife entered a love marriage.
·When the applicant’s wife chose to study in Australia as she was eligible for a student visa, they moved to Australia instead of trying to move to another part of India because the applicant wanted to flee India.
·The applicant’s wife’s parents so interfered with the relationship while the couple was in Australia that they persuaded the applicant’s wife to return to India after 5 months, abandoning her studies and the applicant, after having paid for the applicant and his wife to study in Australia.
·The applicant’s wife departed Australia on an undetermined day and did not tell him.
·When the applicant could not find her, he reported her missing to the Australian police.
·The applicant was shocked and has suffered depression when he found out his wife had returned to India.
·The applicant’s wife’s family started demanding money from him and have threatened to kill him if he does not comply.
·The applicant fears he will be harassed by the police in India and that his wife’s family would hire goons to target him and kill him.
·Corruption is such in India that his parents-in-law would enable them to do anything to the applicant.
·That the applicant’s wife is well-connected politically and with the law enforcement apparatus in India such that he could not relocate to any other part of India to seek safety.
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).
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).
The Tribunal has also considered whether it has 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 the applicant will suffer significant harm. The real risk test imposes the same standard as the real chance test applicable to the assessment of a well-founded fear of persecution. The Tribunal having rejected the applicant’s claims, individually and in their totality, finds that it is not satisfied that there are substantial grounds for believing that there is a real risk he will suffer significant harm due to any adverse profile with any state or non-state actors in India such as his parents-in-law, and the Tribunal rejects that the applicant will be arbitrarily deprived of his life; or that the death penalty will be carried out on him; or that he will be subjected to cruel or inhuman treatment or punishment; or that he will be subjected to degrading treatment or punishment by non-state or state actors.
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.
Rosa Gagliardi
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.
…

[2024] AATA 2268

12 March 2024

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