2101083 (Refugee)

2101083 (Refugee) [2023] AATA 2369 (28 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Gaganjot Singh Bhatia (MARN: 0963188)
CASE NUMBER:  2101083
COUNTRY OF REFERENCE:                   India
MEMBER:Katherine Harvey
DATE:28 April 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 April 2023 at 12:55pm

CATCHWORDS
REFUGEE – protection visa – India – property dispute with uncle’s family with political links – beaten, jailed, tortured and forced to withdraw complaint – inconsistent claims and evidence – no corroboration of dispute, injuries, treatment or police case provided – no harm to family members in home country – mental health and treatment – complete treatment order not provided – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), (b), 5J(1)(b), 36(2)(a), (aa), 65, 411(1)(c)
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 January 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a citizen of the Republic of India (India) and is [Age] years old. He first arrived in Australia [in] August 2016 on a sponsored family visitor visa. He left Australia [in] September 2016. The applicant arrived in Australia [in] February 2019 on a tourist visa and departed Australia [in] May 2019 for [Country]. He last arrived in Australia [in] May 2019.
On 24 July 2019, the applicant applied for a protection visa.
On 20 November 2020, the Department wrote to the applicant inviting him to provide more information to help assess his application within 28 days. The Department asked for substantiating details including the dates and locations of events and copies of any documents or other evidence to support his claim. The Department also asked for information about the applicant’s employment, his travel history and whether he could relocate within India. By the time of the decision, the applicant had not responded.
On 22 January 2021, a delegate of the Minister refused the application for the grant of a protection visa.
The review application
On 1 February 2021, the applicant applied for a review of the delegate’s decision. The applicant provided a copy of the delegate’s decision with his application for review. The Tribunal is satisfied that the decision is reviewable under s 411(1)(c) of the Act.
The applicant was initially invited to a hearing on 22 August 2022. On 11 August 2022, the hearing was rescheduled to 25 August 2022 and then, at the request of the representative, rescheduled to 26 September 2022.
The applicant was sent SMS reminders five days and one day before the hearing.
The applicant appeared before the Tribunal on 26 September 2022 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 had come to the hearing straight from his workplace. The Tribunal was mindful of his claim during the hearing about his mental health. The applicant presented arguments in support of his claims and responded in a meaningful way to the Tribunal’s questions. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. Where relevant, the applicant’s evidence to the Tribunal is referred to below in the Tribunal’s analysis.
The applicant was represented in relation to the review and the representative attended the hearing by telephone.
After the hearing, the representative provided:
·   copies of two court documents and the accompanying notarised English translations of the documents
·   one page from a two-page Inpatient Treatment Order from [Hospital] dated 13 July 2022 that expired on 20 July 2022, and
·   three pages from a six-page Final v1 Separation Summary from [Hospital] dated 9 August 2022.
The representative did not provide any explanation with the documents and no additional claims were made.
On 3 November 2022, the Tribunal requested complete copies of the Inpatient Treatment Order and Final v1 Separation Summary.
On 11 November 2022, the representative provided the complete Final v1 Separation Summary dated 9 August 2022 and undertook to provide the other document when received. The representative did not provide any explanation with the documents and no additional claims were made.
On 17 November 2022, the Tribunal emailed the representative, reminding him that the complete Inpatient Treatment Order had not been received.
The complete Inpatient Treatment Order was not received by the time this decision was finalised.
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
The issue in this case is whether the applicant has a well-founded fear of persecution for a refugee nexus reason, or he is owed complementary protection, or he is a member of the same family unit as a non-citizen who is a refugee or is owed complementary protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant’s personal details are set out in his application for protection. He is [Age] years old and was born in [Village], Punjab, India. At the time he made the application, he claimed that he had never married and that he was a self-employed farmer.
The applicant provided details of his brother living in Sydney and his sisters, mother and father living in India.
At the time of the hearing, the applicant had married and fathered a son. His wife, who is a national of India, and son are not part of his protection visa application. The applicant said that he is working as [an Occupation] in Adelaide.
Country of reference
The applicant claims that he was born in [Village], Punjab, India. He provided a copy of the biodata page of his Indian passport.
The Tribunal is satisfied that the applicant is a citizen of India and that India is the receiving country for the purpose of s 36(2)(aa) of the Act.
Claims
In the protection visa application, the applicant claimed that he left India due to a fear of being killed by his next-door enemies. They have a property dispute with his uncle’s family, who are very cunning people with links to BJP and Akali Dal. He fears his uncle’s family will get him killed because they want his property. He believes that the BJP being in power at the federal level means they can have people like him thrown into jail for life.
The applicant claimed that he has been beaten with bamboo sticks and gun butts by unidentified people and they almost killed him but a passer-by took him to hospital and he survived.
The applicant claimed that he contacted the police but they threw him into jail at his uncle’s family’s instruction. In jail, he was tortured and forced to withdraw his complaint.
The applicant claimed that, because his uncle is backed by the ruling party BJP, the applicant fears that his uncle will manage to get him killed if he moves to another part of India. He thinks that there would be a fake police encounter or the police will plant a fake case against him and he will have to spend his life in jail under humiliation.
The applicant claimed that he has zero hope that some authority will listen to him because of his uncle’s family’s close associations with BJP and authorities.
Assessment of claims and evidence
As discussed at the hearing, it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
Has the applicant experienced harm?
The applicant said that there is a current court case about land jointly owned by his father and his father’s three brothers in the village where he was born. He says that the dispute about the land started after two of his uncles died.
The two court documents that the applicant provided after the hearing show that [in] June 2017, the applicant’s father [Mr A] applied to [a Court] for the division of two plots of land measuring [Sizes] respectively. The documents list a number of respondents.
The applicant said that he was very young, around [Age range] years of age, when his family moved to the city, and he is not very familiar with everyone in the village. He said that the village was in Tarn Taran district. The applicant said that he, his parents and his siblings had lived in the city of Lubhiana since he was a young child, he thought for [Number range] years. The applicant said that he was always fond of cars and vehicles, and he worked as [an Occupation] before coming to Australia. His parents and one sister and her husband and children still live in Lubhiana, while his other sister lives in a village nearby with her husband and children.
At the hearing, the applicant claimed that four or five years ago, he travelled to the village with his father and two friends. He said that they had gone to take measurements to do a proper division of the land and they had a fight with one of his uncles and some other people who objected to what they were doing. The applicant said that the other people brought swords and weapons and the police arrived and took three or four people to hospital, including the applicant. The applicant said that he received four or five stitches for a cut above his left eye as a result of the attack. He did not provide any corroborative evidence to support the claim he had been to hospital. He said that he was taken to the police station lock up and held overnight. The applicant said that the related police case is still running, in parallel with the court case. He did not provide any corroborative evidence to support the claim about a related police case. The applicant was unable to provide specific details about the attack, such as the month or year it occurred. When pressed, he thought the incident happened in summer.
As discussed at the hearing, the Tribunal is concerned about inconsistencies between the applicant’s claims in his protection visa application and his claims at the hearing about the harm he experienced. For example, in his application, the applicant claimed that he had been beaten by unidentified people with gun butts and bamboo sticks and was almost killed but survived because a passer-by took him to hospital. The applicant did not raise this claim at the hearing until prompted. When asked if he stood by this claim, the applicant said that this claim was correct. When the inconsistency between this claim and his earlier evidence at the hearing was raised, the applicant said that he could provide the court documents. He also said that he had just been talking about the main incidents earlier in the hearing. The Tribunal did not find this explanation persuasive or satisfactory. The Tribunal asked the applicant when the beating with bamboo sticks and gun butts had happened and he said 2017. When asked for the date, the applicant said that he did not remember the date because he had been to hospital with depression. After the hearing, the applicant provided information from [Hospital] that he was hospitalised in Australia in July 2022 with his first episode of psychosis. The Tribunal accepts that with the passage of time, some of the finer details about the incident may have been forgotten, such as the date that such an incident occurred. However, the Tribunal does not accept that such a beating would not comprise one of the main incidents in the applicant’s experiences relating to the land dispute, nor does the Tribunal accept that the applicant would have completely forgotten being almost being killed.
In his application, the applicant claimed that the police had thrown him in jail and tortured him and forced him to withdraw his complaint. At the hearing, he claimed that the police had taken him to the police station lock up after taking him to the hospital and that he was held for one night. When the applicant’s changing claims were put to him, he responded that there had been three confrontations within one month and that he was injured in one of them. He said the police arrived once and they did not come to the other confrontations. The significant differences between the applicant’s changing claims cast serious doubt on the veracity of his evidence. As discussed at the hearing, the Tribunal was also concerned about the lack of detail and supporting evidence, such as the times and dates of the attacks and evidence from the hospital of the applicant’s treatment.
At the hearing, the applicant said that he could provide ‘all the documents’ to support his claims. At the end of the hearing, the representative undertook to provide the hospital documents and the court documents within two weeks. After the hearing, the applicant’s representative provided two court documents related to the land dispute and two documents (one of which was incomplete) related to the applicant’s admission to [Hospital] in Adelaide in July 2022. Documents related to the applicant’s purported hospital treatment in India were not provided.
Based on the information before it, the Tribunal accepts that the applicant’s father has applied to the court for the division of two plots of land. However, given the inconsistencies in the applicant’s claims and the lack of corroborative evidence that the applicant said he could provide, the Tribunal does not accept that the applicant had a fight with his uncle and other people, that the applicant was injured and taken to hospital and received stitches, or that the applicant was held overnight in the police lock up. The Tribunal also does not accept that the applicant was beaten with bamboo sticks and gun butts and almost killed, or that he was jailed and tortured by the police, or that there is a current police case. It follows that the Tribunal does not accept that the applicant has been harmed by his uncle, the police or other people in relation to the land dispute.
Will the applicant experience harm?
At the hearing, the applicant reiterated that the only reason he fears returning to India is the property issue.
At the hearing, the applicant was asked why he and his father could not rely on the Indian court system to resolve the land dispute. The applicant replied that his uncle had links with Akali Dal. The Tribunal explored the applicant’s uncle’s links with BJP and Akali Dal political parties. The applicant said that his uncle was the head of his village, which was why he had links with BJP and Akali Dal. When asked if he had any other links with them, the applicant said, ‘I don’t know’. Based on the evidence from the applicant, the Tribunal does not accept that the applicant’s uncle has extensive political links, nor does it accept that the uncle’s political links would enable him to pervert the Indian court system or have the applicant thrown in jail or have him killed in a fake encounter with police.
At the hearing, the applicant said that his father and his family have not experienced harm since he left India. The applicant claimed that was because the court case is still running and because his parents do not go to the village anymore.
The Tribunal reminded the applicant that it was his responsibility to provide the relevant facts in as much detail as necessary to make his case and that the Tribunal is not required to make his case for him. At the end of the hearing, the applicant confirmed that the only reason he feared to return to India was the property issue.
At the end of the hearing, the representative agreed that all of the relevant issues had been discussed. The representative undertook to forward to the Tribunal information from the applicant, namely the hospital documents from India and Australia and the court documents within two weeks. After the hearing, the applicant’s representative provided two court documents related to the land dispute and two documents (one of which was incomplete) related to the applicant’s admission to [Hospital] in Adelaide in July 2022. Documents related to the applicant’s purported hospital treatment in India were not provided. No explanation was provided with the documents, nor were any additional claims made.

There is no corroborative evidence before the Tribunal that the applicant experienced harm in India and the Tribunal does not accept that the applicant was harmed by his uncle, the police or other people in relation to the land dispute. There is also no corroborative evidence before the Tribunal that the uncle has close political ties with BJP or Akali Dal. There is no corroborative evidence before the Tribunal that any threat of harm to the applicant exists. The Tribunal did not find the applicant’s evidence about a future risk of harm compelling or persuasive. The Tribunal accepts that the court case is progressing and that the applicant’s family has not experienced harm. The Tribunal does not accept that the applicant’s uncle, other relatives, the police or unknown people wish to harm the applicant.
The criterion in s 5J(1)(b) of the Act imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[1] The Tribunal finds that the applicant’s evidence that is relevant and material to his claimed real chance of serious harm arising from the land dispute is insufficient to establish to the satisfaction of the Tribunal the requisite real chance of serious harm if the applicant is returned to India now or in the foreseeable future.
[1] Chan Yee Kin v MIEA (1989) 169 CLR 379.
Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act. The Tribunal finds that there is no real risk of the applicant suffering significant harm arising from the land dispute on his return to India now or in the foreseeable future. The Tribunal finds that it would be purely speculative to predict the outcome and the uncle’s and other family members’ reaction to the conclusion of the court case.
Mental health
After the hearing, the representative submitted a Final v1 Separation Summary from [Hospital] and one page from a two-page Inpatient Treatment Order. The applicant did not provide any explanation with the documents. No information was provided that the applicant has sought or received any ongoing treatment.
The Tribunal considered the impact of the applicant’s mental health on the evidence he provided at and after the hearing. The Tribunal is not satisfied that his mental health episode, which happened three years after he lodged his application for a protection visa, impacted his claims for protection in his application. The Tribunal is not satisfied that his mental health episode can account for the differences between his claims in his application and the evidence given in the hearing, including the circumstances of his involvement with the police, the harm he experienced and his uncle’s political connections. The Tribunal is satisfied that the applicant was able to participate fully in the hearing, that he was afforded the opportunity to provide further information after the hearing if he wished and that he was represented in relation to the review.
The applicant has not claimed to fear harm from any other source, and no other claims are apparent on the information before the Tribunal. The applicant has not claimed, and there is nothing to suggest, that he has a well-founded fear of persecution for any other reason nor that there is a real risk that he will suffer significant harm on his return to India now or in the foreseeable future.
Conclusion
After considering all of the applicant’s claims, both individually and cumulatively, the Tribunal finds that there is no real chance that the applicant will face serious harm in India for the reason of his race, religion, nationality, membership of a particular social group or political opinion. The Tribunal finds that the applicant does not have a well-founded fear of persecution. 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 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 be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of ‘torture’ in s 5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s 5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s 5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty. The Tribunal, therefore, 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.
Katherine Harvey
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 2369

28 April 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction