2100827 (Refugee)

2100827 (Refugee) [2023] AATA 3065 (12 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2100827
COUNTRY OF REFERENCE:                   India
MEMBER:James Lambie
DATE:12 July 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 July 2023 at 3:14pm

CATCHWORDS
REFUGEE – protection visa – India – applicant failed to attend tribunal hearing – a victim of loan sharks – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 46A, 65, 426A
Migration Regulations 1994, Schedule 2
CASES
BZADA v MIC and RRT [2013] FCA 1062
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 21 January 2021 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 29 July 2020. The delegate refused to grant the visa on the basis that the applicant was not a person to whom Australia owed protection obligations.
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 meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is [age] years old and a national of India.
The applicant departed India legally by air in July 2012. He travelled to [Country 1], where he stayed for about 7 days, and then on to [Country 2] by boat. After about a month, he travelled to Australia by boat, arriving on [date] September 2012. He was granted a Humanitarian Stay (subclass 499) visa and a Bridging E visa on 6 December 2012.
The applicant lodged a protection visa application on 6 September 2013, which was deemed invalid. On 29 September 2015, the s 46A bar was lifted for the purposes of lodgement of a Temporary Protection visa and a Safe Haven Enterprise visa (SHEV) only. The applicant lodged an application for a SHEV (subclass XE 790) visa on 21 April 2017, which was deemed invalid on 25 June 2020. The applicant was notified that the Minister had intervened and lifted the s 91K bar on 29 July 2020. The application was refused on 21 January 2021.
The applicant applied to the Tribunal for review on 26 January 2021.
Claims
The applicant claims that his parents were killed in the Mumbai terrorist attack of 26 November 2008. The applicant inherited his father’s business.
The applicant claims he had to sell the business to repay the money his father had borrowed from a private bank. He claims that his father had also incurred debts of about 4.5 lakh (450,000) rupees (about AUD$8,000) to [Mr A] and [Mr B], whom the applicant described as politically-well connected and influential. The applicant claims that he did not have the funds to repay the debt.
The applicant claims that in 2010, the two men confronted him at the bazaar on Ahmedabad seeking repayment of the debt, and beat him so badly that he required medical assistance. He claimed that, to appease them, he gave them a blank cheque. When this cheque was subsequently dishonoured, [Mr A] and [Mr B] issued court proceedings against him and also made several threats by telephone to kill him.
The applicant claims that he did report the assault to the police because the men were likely to have the support of the police.
The applicant claims that he separated from his wife and children and moved 500 km away, but that [Mr A] and [Mr B] were able to locate him and assaulted both him and his friend [Mr C]. He claims that he could not report this assault to the police because the men were likely to have the support of the police.
The applicant claims that, having received further threats from the men during early 2012, he left India for [Country 1] and subsequently travelled to Australia.
The applicant claims that the men are aware of his location in Australia and will know if he returns to India. He claims that they will be able to find him wherever he gores in India or Nepal.
The applicant also claims to fear being harmed by exposure to COVID-19 in India.
Evidence
The Tribunal has before it a range of material including, relevantly:
·The applicant’s subclass 790 Safe Haven Enterprise visa application, which was lodged on 24 April 2017;
·The applicant’s identity documents including his Queensland proof of age card, his Gujarat State driving licence, and his secondary and tertiary diplomas and transcripts;
·The protection visa decision record dated 21 January 2021 (the delegate’s decision record);
·The application for review form dated 26 January 2021;
·Department file [number] concerning his protection visa application; and
·Country information on India, referred to below.
Country of reference / receiving country:
The applicant claims to be a citizen of India. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that India is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Hearing:
On 7 March 2023, the Tribunal wrote to the applicant advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing to be held on 6 June 2023. The letter advised that if he did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice or taking further action to enable him to appear before the Tribunal. The letter was sent to the applicant by email at the email address provided in the application for review.
On 31 May 2023, the applicant contacted the Tribunal by telephone, requesting that the hearing be conducted by telephone. He was advised that he should complete the response to the hearing invitation and provide the reasons for his request for a telephone hearing.
On 1 June May 2023, the Tribunal sent a hearing reminder to the applicant’s email address as provided in the application for review. On 2 June 2023, the applicant returned a completed ‘Response to Hearing Invitation’, confirming that he would attend the hearing on 6 June 2023. In this document, he made no request for a telephone hearing.
On 5 June 2023, the applicant contacted the Tribunal by telephone to advise that he had a hearing scheduled for the following day but was in hospital with a bad cough and fever, and would not be able to attend. He was asked to confirm this via email but advised that he could not email from the hospital. That same day, the Tribunal wrote to the applicant by email advising that his request for a postponement had been granted and the hearing had been rescheduled to 22 June 2023.
On 15 June 2023, the Tribunal attempted to send hearing reminders to the applicant by SMS to the telephone number he had provided. The Tribunal received notifications that delivery had failed.
On 21 June 2023, the applicant contacted the Tribunal by telephone and advised that he was still in hospital and could not attend the hearing scheduled for the next day and requested that the hearing be further postponed or conducted by telephone. He was advised to make his request by email and provide his reasons.
Later that same day, the applicant contacted the Tribunal by email as follows:
I’m sick every day I have appointments in hospital to fever and cough and stomach problems so I said request my hearing cancel tomorrow and give me 5 months next hearing please I’m requesting to you sir.
Later that same day, the Tribunal wrote to the applicant by email, advising that his request for a postponement had been agreed to and that the hearing had been rescheduled to 12 July 2023. It advised that his request for a five-month postponement was not considered reasonable and asked that he provide a medical certificate in respect of his postponement requests. The Tribunal received no response to this letter.
On 5 July 2023 and 11 July 2023, the Tribunal sent hearing reminders to the applicant by SMS at the telephone number he provided to the Tribunal on 21 June 2023. There was no notification received to the effect that delivery of the message had not succeeded and the Tribunal received no response.
The applicant did not appear before the Tribunal on the day and at the time and place he was scheduled to appear. The applicant failed to provide any reasonable explanation as to why he could not attend at the scheduled time. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.
Accordingly, this matter has been determined on the evidence available to the Tribunal
Assessment of claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. 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 or herself, 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 or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (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 also notes that the recent decision of the Federal Court in BZADA v MIC andRRT [2013] FCA 1062, where Rangiah J held at [21]:
As his Honour correctly found, the Tribunal was unable to reach the requisite level of
satisfaction to grant the applicant a visa given his failure to attend the hearing and
the Tribunal’s inability to test and examine his claims in evidence. The relevant
statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach
a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the
criteria for the grant of a protection visa depends not on a particular matter being
established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.
The Tribunal has carefully considered the applicant’s claims as detailed in his application for a protection visa, both individually and cumulatively. The applicant did not take the opportunity to attend the hearing and did not provide additional information in support of his claims, even after having been advised of the delegate’s decision. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing.
The applicant’s written claims in his 2013 statement were that he was assaulted and humiliated on one unspecified date in 2010 in the bazaar in Ahmedabad by [Mr A] and [Mr B] in relation to the claimed debt owed by his father. He claims that he was beaten and his shirt was torn and that he thereafter received ‘several’ calls from the men, ending in 2012 when decided to leave India. He claimed that he did not make a complaint to the police because of the power and influence of his assailants. He does not mention going into hiding.
In his 2017 statement, the applicant gives an account of a much more violent assault with a baseball bat, requiring emergency hospital treatment. He claims to have gone into hiding immediately after this incident, and to have received menacing telephone calls regularly, sometimes as many as 10 to 12 times a day. He claimed that he did not go to the police because of the power and influence of his assailants and also because he believed the police would extort bribes from him.
In his interview on 23 October 2020, the applicant claimed that his assailants were accompanied by the police during the incident in the bazaar and allowed the assault to occur. He claimed that his friend [Mr C] took him first to the police station to attempt a complaint and then to the hospital. He said that the police would not help him because his assailants had bribed them 50,000 rupees. He claimed that this incident occurred about seven to eight months before he left India (i.e, about November or December 2011). The applicant also claimed to have moved to an unnamed city ‘about 500 km’ from Ahmedabad, but could not name the city. He claims that [Mr A] and [Mr B] located him and subjected both him and his friend [Mr C] to another beating.
Had the applicant attended the hearing, the Tribunal would have asked him for further detail about his claims and the inconsistencies between them, which would have afforded him an opportunity to address the inconsistencies and to respond to the decision of the delegate. He would also have been able to provide further information and evidence.
On the material presented, the Tribunal has insufficient evidence as to:
·the debt said to have been inherited by him from his father;
·details and evidence of the incident said to have occurred in the bazaar at Ahmedabad, including its possible date, the seriousness of the assault, the involvement or non-involvement of the police, the extent (if any) of his injuries, and whether he was subsequently admitted to hospital;
·the extent to which [Mr A] and [Mr B] subsequently pursued him for repayment of the debt;
·why, if the applicant was being harassed and even located by telephone, he did not take steps to block the calls or change his number;
·details of the steps the applicant took to evade [Mr A] and [Mr B];
·how the dates of the applicant’s international travels are to be reconciled with his claims;
·details and evidence of the claims he has made about the power and influence of [Mr A] and [Mr B], and the powerlessness of the police in relation to their activities; and
·details and evidence of his claims in relation to COVD-19.
The Tribunal has had regard to the following country information loansharking in India:
Legal protections exist for victims of moneylenders, at the state/union territory and federal level, including the Usurious Loans Act of India (1918), which applies to the informal financial sector. Provisions under section 415 of the IPC, which cover cheating and deception, may extend to predatory lending in some cases. Provisions to regulate the practice of moneylending can also be found in the Reserve Bank of India Act (1934) and the Banking Regulations Act (1949), all at the federal level. Penalties cover offences of imposition of exorbitant interest rates, harassment of borrowers and restoration of property, and range from imprisonment to imposition of fines. In practice, however, provisions in the law are rarely used or enforced and informal moneylending remains commonplace.[1]
[1] DFAT Country Information Report: India (10 December 2020), p. 50
The Tribunal accepts that instances of loansharking are common in India, and that legal protections are unevenly enforced.
Because the applicant did not appear and provide evidence as to how the claimed debt was incurred, why legal protections were not available, and whether all or any of his claims can substantiated or reconciled, the Tribunal is unable to be satisfied that there is a real chance that on return to India, either now, or in the reasonably foreseeable future, that the applicant would be persecuted or suffer serious or significant harm.
Cumulative claims

Having considered all of the applicant’s claims, individually and cumulatively, and all of the evidence, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution as a consequence of his having been a victim of loansharks, if he returns to India now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to India. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?
The Tribunal has considered the applicant’s claims in terms of complementary protection.
Having regard to the findings of fact above, I do not accept that the applicant left India because he feared for his physical safety.
In view of these findings, I am not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to India now or in the reasonably foreseeable future. Having considered all of the applicant’s claims, individually and cumulatively, and all of the evidence, as well as having considered his personal circumstances, I am not satisfied that the applicant will be arbitrarily deprived of his life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment, or he will be subjected to degrading treatment or punishment if he returns to India now or in the reasonably foreseeable future.
Conclusion: Refugee Criterion
Considering all of the circumstances above, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason, including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s. 5H.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India that there is a real risk that he will suffer significant harm.
Overall conclusion
For the reasons 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 of 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.
James Lambie
Senior 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 3065

12 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Appeal

Natural Justice