2101579 (Refugee)

2101579 (Refugee) [2021] AATA 2510 (20 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2101579

COUNTRY OF REFERENCE: India
MEMBER:Luke Hardy
DATE:20 May 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 May 2021 at 2:59pm
CATCHWORDS
REFUGEE – protection visa – India – family property dispute – fear of killing – false imprisonment – legal dispute resolved – no Convention grounds – state protection – delay in applying for protection – family’s special health and development needs – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 417
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
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 4 October 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, [the applicant], is a citizen of India. He arrived in Australia [in] November 2015 on a student visa valid to 30 August 2019. That visa was cancelled on 24 August 2017 due to his failure to pay his college fees.
The applicant was charged in a number of matters [in] August 2018 but released from remand within a few days. He was detained by the Department of Home Affairs (the Department) due to having no valid visa. On 30 August 2018, he lodged applications for a bridging visa and a protection visa. The bridging visa was refused on 3 September 2018, and [the applicant] sought review of that decision. The AAT affirmed the bridging visa refusal on 12 September 2018.
After the delegate refused to grant [the applicant] a protection visa on 4 October 2018 he sought merits review de novo by this Tribunal, constituted in this matter by me. [The applicant] told me that he pleaded guilty to the charges against him and received a community service order instead of a custodial sentence. However, he remains in immigration detention as he has no substantive visa.
[The applicant], currently detained [at a detention centre], attended a video-conference hearing before me, in Sydney, on 23 April 2021. He is unrepresented and called no witnesses. He required no interpreter. I am satisfied that he had an opportunity to speak to his claims at the hearing.
For the purposes of this review, [the applicant] submitted to the Tribunal a copy of the delegate’s decision which contains summaries of his original claims and the information he provided at a protection visa interview on 18 September 2018. The same record shows that the delegate put [the applicant] on notice regarding concerns about credibility and the absence of evidence supporting his core, ongoing claims.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the "refugee" criterion, or on other "complementary protection" grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant 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 issues
The main issue in this case is whether, on accepted evidence, [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the reasons given below, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Claims
[The applicant], a Sikh from the state of Punjab and Haryana, made the following claims in his original protection visa application:
My parrents [sic] have been fighting over a property case for nearly a decade, the imminent threat is from my uncle that is my father's brother. My uncle has gone to every limit and extent he can go for to kill or harm his brothers kids, the possible threat is not just for me its to the whole family but as far as i know my uncle and his influence in politics and local authorities there is no denying that if in case i return to my country he will track and hunt me down for his purposes as i am the oldest son of my father and he wants me either dead or abducted so he can get what he wants from my family which is taking over everything my family owns. This is why my father sent me to Australia to study and reside here pemanently [sic] so my uncle cannot track me there have been threats throughout the decade in verbally form over the phone calls and then in other state of my uncle sending local gangsters and corrupted police officers and other people to abduct myself and my brother ...
As i mentioned earlier my uncle has tried many times to abduct and kill me and my brother many times, even though my father went to file a report against my uncle but nothing worked out in our favour as he is a influential personality in politics and other local authorities. The only reason he wants me and my brother dead or abducted is because he can take over everything my father actually own rightfully ...
[W]e could not seek any kind of administration or local authority help [because] every time a report was reported against him the people working for him or taking money from him would inform him and would not take any reports against him ...
Everything my father own and works for in city i used to live in, so moving to another state [in India] wasn't a solution as my father and mother would have lost their job and wouldn't have been able to support the family financially and emotionally ...
The worst case scenario [sic] i will be getting abducted or killed as soon as i step down in my city in early days [because] my uncle had good connections with goverment [sic] and i can just imagine now he can possibly do to harm my family and myself ...
The first and foremost thing i know could happen is getting abducted either by my uncle or his corrupted local authority they will chase and hunt me until they get to me somehow. My uncle will be the first person to be responsible for everything and secondly the local authority. the only reason he wants to harm me is because of the fact i am the oldest son of my parents and he knows if anything he does to me my family will give up anything for me ...
My uncle has a really strong and major connection in state politics and local police so even if i go to police nothing will go against him as my family already had tried to do by law but law doesnt [sic] want to listen ...
The very thought of going back to my country gives me goosebumps and nightmares, i don't think i would be able to reside anywhere in country as i dont [sic] have relatives in any other states or any other area except my hometown but going back to my country right now could jeapordise [sic] my family's situation, there's no way my family would want to see me in a state knowing what my uncle can do to me.
[The applicant] submitted to the Department several photographs of multiple court documents related to a civil dispute between [name] (his father) and his father’s brother [Mr A]. As noted by the delegate, the court papers reveal that [Mr A] accused his brother and his wife of selling in 1999 a plot of land they co-owned without his authorisation using bribery and other illegal means. In 2006, the applicant’s father won the court case. [The applicant’s] uncle lodged an appeal but, [in] November 2012, the [Judge] acquitted [the applicant’s] father of all charges. The 2012 papers cite three defendants: [the applicant’s] two parents and another person, [named], who is evidently not a member of [the applicant’s] immediate family.
Whereas [the applicant] appeared to suggest that the property dispute was still continuing at the time of his original protection visa application, in saying that his parents “have been fighting over a property case for nearly a decade,” his claims indicate that all judicial proceedings ended in 2012, three years before [the applicant] left India for Australia. [The applicant] claims, however, that the conflict continued out of the judicial system, with the uncle threatening and even attempting to kidnap and kill him. He claims he and his family reported these threats and attempts to the police who took no effective action. He claimed to the delegate that he feared being set up by his uncle and charged on falsified grounds, and even being physically harmed or killed by “hired goons.”
Meanwhile, [the applicant] has not presented, either to the delegate or to the Tribunal, any evidence of First Information Reports (FIRs) to Indian police or any other supporting evidence in relation to claimed kidnapping attempts and threats.
At the Tribunal hearing, [the applicant] described his parents’ circumstances in India. He said his father is a retired beneficiary of a government pension, his mother [an occupation] in [an agency]. He said he is in touch with them every day via video calls, presumably using Internet applications (Apps). [The applicant] told me he has one brother. I note he mentioned this brother in evidence to the delegate. At that time, in 2018, he said his brother was aged [age] years, living with their parents in India and in a process of applying for a Student visa in [Country 1] for the same reasons that he himself claimed to have applied for a Student visa in Australia, being that he feared being persecuted by their uncle. I asked [the applicant] for updated information about his brother. In reply, he said his brother had left India “twenty-eight months ago,” which would have been at the end of 2018 or beginning of 2019, and gone not to [Country 1] but to [Country 2]. He later confirmed that his brother left India in 2018. He told me his brother was now applying for asylum in [Country 2]. He said his brother entered [Country 2] on a student visa. I sked him what his brother did on arrival in [Country 2], and he said his brother commenced studying [Course 1]. I asked [the applicant] how long his brother studied [Course 1] in [Country 2] and he said, “Six months.” I asked him to tell me what then happened to his brother next and, in reply, he said the college his brother was attending got “black listed.” In the absence of other information, I presume the college was shut for breaching rules under which it operated or something like that. [The applicant] appeared to change his evidence, telling me that his brother applied for asylum before the college was closed. He then appeared to change his evidence again, saying that his brother lodged an asylum application in [Country 2] even before he commenced studying [Course 1] there.
I checked with [the applicant] that the land dispute was resolved judicially in 2012 and that no further legal action in the matter had been taken. He said that his uncle had nevertheless been visiting his parents regularly for the last nine years looking for him and his brother. For three of those years, I note, [the applicant] was still evidently living with his parents, and his brother had lived with them for three years additional to those. I put to him that if his uncle had made regular visits to his family to try to harm him and his brother for some kind of extrajudicial leverage in the matter of the land dispute, he persistently failed over a long period while both brothers were still in India and evidently never changed his behaviour or approach, which appeared to give the facts here an air of unreality because he never got closer to what he allegedly wanted, but seemed to be setting himself up for defeat time after time, year after year, without appearing to learn from experience or change tack, as it were. In reply, [the applicant] said that his family used to know when his uncle was about to visit them and that he and his brother would then go to stay temporarily with the “auntie.” This was a new claim, not previously disclosed. I asked [the applicant] to describe to me by what means his family always knew in advance of his uncle’s imminent visits and he merely said that his uncle was “always paying visits now and then.” His evidence here seemed far-fetched and somewhat improvised, and generally unsatisfactory.
I put to [the applicant] that in view of who was named in the court proceedings, it would seem more logical that his parents would be targeted rather than him and his brother. [The applicant] indicated to me that his uncle had been trying to hurt his parents by harming their children. He also said that his father had transferred title in the land to him and his brother and his uncle had found out about the transfer. This was a new claim that [the applicant] would have been in a position to make in his original application or inn the interview with the delegate, but evidently had not. I asked [the applicant] when his father had transferred the land title to him and his brother and he said, “2015 or 2016.” I asked him if there was any evidence of the transfer and he said he had not been able to obtain any due to the Covid-19 pandemic. This did not strike me as satisfactory explanation given his purporting that the land had been transferred three or four years before the present pandemic occurred. I was concerned that he appeared to be improvising in trying to explain why this new claim was hitherto unsupported.
I asked [the applicant] when and how his uncle had found out about the land having been transferred. He said his uncle had still not found out until after his brother left India at the end of 2018; he said he did not know how his uncle found out. He said that after he came to Australia his parents changed addresses, thirty or forty kilometres from their original home, and his uncle did not find them until 2017 when he demanded that his father sign over the land to him, thus indicating that he did not know yet that the land no longer belonged to his, [the applicant’s], father. Throughout his evidence, he gave seemingly contradictory evidence about his uncle having powerful contacts and yet appearing to have networks that did not serve him well in the matter.
[The applicant] told me he had a normal education and lived with his parents right up until the time he came to Australia. I invited him then to focus on the period after he had slipped out of his uncle’s reach, as it were, leaving his brother at home with his parents. In reply, he said his brother never went anywhere while he lived in India. I put to him that in order to qualify for tertiary study in [Country 2], his brother must also have completed educational requirements at some level in India. He then said his brother was home schooled. I asked him how his brother could have been home schooled and he said that his “auntie’s” son, their cousin, was [in the teaching profession]. I asked him if he could provide any evidence to support the claim about his brother having been home schooled and he said that India is corrupt. I asked him if there were no documents evidencing a home schooling situation being recognised by Indian education authorities and he said there is only a “school certificate” which his brother has with him. He did not indicate that this would show his brother to have qualified through home schooling.
[The applicant] spoke to the issue of the apparent lack of any documentary evidence of attempts over more than a decade to engage the assistance and protection of the police. He said he had asked his family several times over a period of three years to try and obtain copies of FIRs, etc., from the police without any result.
[The applicant] described to me the time when, as alleged, an attempt was made to kidnap him and his brother. He said he was [age] years old and his brother [age]. Since [the applicant] was born in [year], I put this occasion in or around 2004. [The applicant] said it happened in “2003 or 2002” but he also said it happened “seventeen years ago” which would have been in 2004. He said that three of his uncle’s men tried to abduct him and his brother. I put to [the applicant] that the delegate had raised with him some concerns about an apparent discrepancy in his claims about the kidnapping attempt, in that in his written testimony, he claimed that he and his brother were nearly kidnapped by “gangsters, corrupt police officers and other people,” whereas at interview, he said there were only three unidentified men involved in the attempt who acted in a threatening manner which allowed the applicant and his brother to sense the danger and escape to their home. Replying to me, [the applicant] said that “what I want to say in my claims” is that three people tired to kidnap him. [The applicant] also told me that all three men were wearing civilian clothes, making it hard to accept that he could ever have perceived any of them as being corrupt police officers.

It is noted that when I asked [the applicant] to tell me when his uncle attempted to have him kidnapped, he only mentioned this one occasion seventeen years ago.
At one stage in the hearing, [the applicant] said that his parents always had him and his brother living away from home with other relatives, but this is inconsistent with claims about their only having stayed away from the family home during visits from the uncle, his brother staying at home even for schooling and, in his own case, having had an arguably normal home and school life between 2012 and the time he came to Australia.
[The applicant] also claimed that his uncle had succeeded in having his parents groundlessly jailed in 2018. He then changed this claim, saying it happened only to his father. He said his father was detained overnight by police who let him go the next day because they had nothing against him.
I asked [The applicant] about his delay in lodging a protection visa application in Australia, particularly after his student visa was cancelled. He explained how his visa was cancelled because he stopped paying fees. The prospect of that occurring is generally made known to all student visa candidates and recipients, but [the applicant] claimed to me that he did not know about the existence of the protection visa stream until he was detained by the Department. This claim did not appear to sit with the claim about coming to Australia in the first place for the sake of gaining asylum. By the time [the applicant] knew he could no longer attend college here, some six months after he arrived, he would have been in a position to find out about what options he might have to stay. Responding to this concern he told me his “agent” here misled him, but his this explanation lacked detail and struck me as being ultimately unsatisfactory.
[The applicant] told me he has a partner in Australia with whom he is in an ongoing relationship. He said they have a child with special needs. He told me the child had [an] injury at [age] and has had to undergo years of therapy with some progress observed. He said he wants to be a good father to his child here. He said his partner and child are Australian citizens.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[1] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[2]
[1] MIMA v Rajalingam (1999) 93 FCR 220.
[2] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[3] Section 5AAA of the Act makes clear that 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 or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[4]
[3] 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
[4] Sun v MIBP [2016] FCAFC 52 at [69].
[The applicant’s] substantive claims relate to a personal dispute between family members over ownership of land. On their face, these claims do not involve any of the five criteria in s.5J(1)(a) of the Act. [The applicant] did not suggest that they have any nexus with s.5J(1)(a). I did consider whether “political opinion” might be an essential and significant factor in the harm feared, due to the claim about the uncle enjoying some impunity due to connections in “politics,” but I have concluded that it is not. I have also considered whether [the applicant’s] claims might be claims relating to “membership of a particular social group,” the group in question being [the applicant’s] family, but have concluded that this is not the case for two reasons: no other member of [the applicant’s] family faces or claims persecution for a reason given in s.5J(1)(a); and, in evidence to me, [the applicant] claimed that the focus of the persecution was now on him, with his parents facing ongoing demands from his uncle for information as to his whereabouts.
In having no nexus to s.5J(1)(a) of the Act, [the applicant’s] claims cannot succeed as refugee claims. He is not a refugee.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
"Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that [the applicant] is a citizen of India, I find that India is the “receiving country” in this case. I find that the harm [the applicant] identifies in his claims appears to include “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.
Treating all of [the applicant’s] claims as complementary protection claims, I accept that he is a former student from Punjab and Haryana state and a national of India. I accept that there was a land dispute between his uncle and his parents (& Anor). I accept that the dispute was resolved in favour of [the applicant’s] parents and the other person in 2012.
However, I find that [the applicant’s] evidence about an ongoing threat from his uncle is undermined by inconsistency and fabrication including factual embellishment and improvisation. I do not accept that the dispute with the uncle moved, to any potentially significant extent, out of the courts after 2012, let alone in the manner described by [the applicant]. I do not accept on the evidence before me that his uncle and/or people associated with his uncle are seeking to harm him.
While I can accept that [the applicant] had never heard of the protection visa stream until after he was detained by the Department, this leads me to conclude that he was not genuinely interested in trying to find out what his rights in regard to non-refoulement might be. I give this failure on his part some weight.
On [the applicant’s] poor performance as a witness in this matter, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that [the applicant] will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
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, he does not satisfy the criterion in s.36(2).
S.417 of the Act
[The applicant] has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so
In this case, [the applicant] has identified the interest of his Australian citizen partner and their Australian citizen child, in particular the latter who has special health and development needs, both of whom would be significantly affected by his removal from Australia.
The Tribunal has considered [the applicant’s] case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417 and s501J)’ and will refer the matter to the Department.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
Member

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

[2021] AATA 2510

20 May 2021

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