2104531 (Refugee) - [2023] AATA 1036

2104531 (Refugee) [2023] AATA 1036 (20 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Madan Mohan Gaindhar (MARN: 0742778)
CASE NUMBER:  2104531
COUNTRY OF REFERENCE:                   India
MEMBER:Brendan Darcy
DATE:20 January 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 January 2023 at 9:23am
CATCHWORDS
REFUGEE – protection visa – India – political opinion – fears abduction, torture and killing by Maoists/Naxalites in home region – paid police informant – Naxalite assault of parents – credibility issues – authorities have generally contained Naxalite violence – parents’ ability to reside in same location for more than 10 years – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 46A, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 29 March 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 the Republic of India (India), applied for the visa on 12 August 2020. The delegate refused to grant the visa on the basis that the applicant did not have a real chance of serious harm or a real risk of significant harm arising from claims about Naxalite or Maoist violence, should he return to India.
The applicant appeared before the Tribunal on 15 December 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant[was] born in [Village 1], Kendrapara (Kendra Para) district of the Indian State of Odisha (Orissa), India; on [date].
Between [year range], the applicant attended [High] School, and successfully completed the Australian equivalent to Year [grade].
Copies of the applicant’s Indian passport, residential certificate and Indian issued birth certificate are attached to the applicant’s Departmental file ([number]).
The applicant speaks the Hindi language, although the Tribunal notes that the applicant stated their language preference to be Oriya (also known as Odia and which is spoken in much of Odisha and parts of Chhattisgarh, West Bengal, Jharkhand and Andhra Pradesh), at the applicant’s entry interview.
The applicant has [brothers]and one [sister]. The applicant is an adherent to the Hindu faith, and their ethnicity is recorded as NEC (‘Not Elsewhere Classified’).
The applicant claims that from 2007 until his departure in 2012 he worked as a [Occupation 1] (the applicant has no formal qualifications in this trade) in [Location 1], a one-to-two-hour commute via bicycle from his home village. During his SHEV interview the applicant claimed that he also resided on various work sites in [Location 1] during the nights because the lengthy commute was too long to return home every night.
Visa history
The applicant has a complex migration history. [In] February 2013, the applicant arrived in Australia by boat without lawful permission. Although he entered Australia by sea without a visa, his arrival into the migration zone was not at an ‘excised offshore place’. For the purposes of the Act, he is found to be a direct entry person (DEP) (see below for an outline of how this application affected by the DBB16 judgement: DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178.
The applicant participated in an arrival interview on 5 March 2013 and lodged an s 195A onshore Ministerial Intervention to grant a temporary protection visa.
The applicant was subsequently granted a Class UJ Subclass 449 Humanitarian Stay (Temporary) visa on 21 May 2013. He was also granted a Class WE Subclass 050 bridging visa E on 21 May 2013.
On 27 March 2015, the applicant lodged an onshore request for Ministerial Intervention to lift the s 46A bar, and another request for Ministerial Intervention to lift the s 91L bar. These requests were granted on 8 April 2015, with the s 46A bar and s 91L bar both lifted. The applicant was granted a Subclass 050 bridging visa on 16 April 2015.
On 27 November 2015, the applicant lodged a further onshore request for Ministerial Intervention to lift a s 46A bar, which subsequently occurred on 1 December 2015.
The applicant applied, and was granted, five separate bridging visas on 17 March 2016, 17 May 2016, 19 September 2016, 15 December 2016 and 29 March 2017.
On 4 April 2017, the applicant validly lodged an application for a Class XD Temporary Protection visa (subclass 785) (‘TPV’) and was granted an associated bridging visa.
On 6 August 2018, the Full Federal Court handed down judgment in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178 (the DBB16 judgment). The judgment determined that certain people who entered Australia via the Territory of Ashmore and Cartier Islands between 23 January 2002 and 1 June 2013 are not unauthorised maritime arrivals (UMAs) or fast track applicants as defined in the Act. As a result of the DBB16 judgment, certain applicants affected by the decision are barred from making valid visa applications as they are not UMAs, and as such, are subject to an ‘application bar’ under the Act. On 8 November 2019, the Minister decided to lift the application bars to allow certain persons affected by the DBB16 judgment to apply for a visa.
The Department determined that the applicant was affected by the DBB16 judgment. As the applicant was deemed not to be a UMA or a transitory person, and at the time of his application for a Temporary Protection (subclass 785) visa (TPV) he had not left Australia since ceasing to hold a temporary safe haven visa (a Humanitarian Stay (Temporary) (subclass 449) visa), his TPV application made on 4 April 2017 was deemed to be invalid.
On 8 April 2019, the applicant lodged an onshore request for Ministerial Intervention to lift an s 91L bar. This was granted, and the bar was lifted on 6 August 2020.
On 23 July 2020, the applicant was notified of the invalidity of his 4 April 2017 TPV application. Further notification was given to the applicant under s 91L of the Act on 6 August 2020.
On 12 August 2020, the applicant lodged an application for a Class XD Temporary Protection visa (subclass 785) and the applicant was granted an associated bridging visa.
A telephone interview was conducted by the Department of Home Affairs with the applicant regarding their TPV application on 10 March 2021.
Claims for protection
The applicant’s claims for protection are based upon a fear of harm from the Maoist/Naxalite insurgency in India. The claims can be summarised as follows:
·     The applicant was born and raised in [Village 1], Kendrapara district of Odisha State.
·     The applicant left India because he feared being abducted, tortured and killed by the Maoists/Naxalites.
·     Naxalites have been declared a dangerous terrorist organisation by the Indian authorities. Frustrated from the atrocities the Naxalites inflicted on his village people, the applicant started working with the local police as an informant.
·     He was first approached by the police to be their informant after the applicant complained to the police about the Naxalites attempting to recruit the applicant.
·     As an informant the applicant always kept an eye out for the Naxalites and phoned the police whenever they were in the area causing issues.
·     Somehow the Naxalites found out the applicant was an informant and since then the applicant has feared being caught by them and tortured. As a result of his fear, the applicant would not return home all the time and stayed mostly on worksites.
·     At the beginning of October 2012, the Naxalites came to the applicant’s home to catch him and informed the applicant’s father that the applicant must stop being an informant. The applicant became scared and stopped reporting to the police.
·     After this visit the Maoists/Naxalites phoned the applicant and asked where he was hiding and threatened him.
·     The Maoists/Naxalites returned to the applicant’s home, and also visited the homes of his friends and relatives looking for the applicant.
·     At the beginning of October 2012, the Naxalites visited the applicant’s home on numerous occasions and beat his father when they were unable to locate the applicant.
·     The final night they came to the applicant’s home was [date] October 2012 when the applicant was missing again. The Naxalites gathered the whole village, stripped his parents naked and tied them to trees. They declared that the applicant’s parents would receive the only punishment available for their son’s actions and that was death.
·     The applicant’s parents were beaten to the point of death and that night the applicant’s home was burnt to the ground.
·     The Naxalites stated that they would not rest until they found the applicant.
·     The following morning the applicant returned home and upon witnessing his parents’ state got very scared.
·     The applicant tried to relocate to other parts of the country, but the Naxalites are present everywhere and they have an extensive network throughout India.
·     The applicant claims the Indian government is helpless as they have not been able to address the threats posed by Maoist/Naxalites insurgents.
·     Police authorities are unable to take any action because they fear for their own safety.
·     In October 2012 the applicant decided to flee for his safety and departed India lawfully on a genuinely issued passport in his identity via Chennai Airport.
Interview with Department
A delegate acting on behalf of the Minister refused to grant the applicant a protection visa on 29 March 2021.
In making a protection obligations assessment, the delegate accepted the applicant is an Indian citizen born and raised in [Village 1], Kendrapara district of Odisha state, India; that Maoist/Naxalite insurgents have an active presence in the applicant’s home region; and that when the applicant departed India lawfully on a genuinely issued Indian passport in his identity, the applicant encountered no issues with the Indian authorities upon departure in 2012.
The delegate however did not accept the applicant was employed as a police informant; the applicant was a person of interest to the Maoist/Naxalite insurgents; the applicant’s family was captured and tortured by the Maoist/Naxalite insurgents; or the occurrence of events – leading up to and including the night of [date] October 2012 – that led to the applicant’s decision to depart India.
A valid application for review was lodged with the Tribunal on 10 April 2021. A copy of the delegate’s decision record was attached.
Evidence provided to the Tribunal
Prior to the hearing, the applicant’s representative submitted a number of submissions for the Tribunal to consider. This included:
·     A copy of the applicant’s resident/nativity certificate to certify that the applicant was a native and resident of [Village 1] in the district of Kendrapara. It was issued in 2008 by the local tahsildar (local tax office);
·     A certifying letter issued by the local tahsildar that a fire incident occurred at the applicant’s residence on [date] October 2012 and that it was due to Maoist activity. The purpose of the certificate from 2012 was to receive government assistance;
·     A signed statement by the applicant. Dated 6 December 2022, the statement outlines the events and reasons for departing India visa Chennai International Airport and for seeking protection in Australia. (It was accompanied by a signed declaration that the statement was true);
·     A letter from the sarpanch (local village or caste council) at Mahakalapada (subdistrict which includes the applicant’s home village). It is signed by multiple members of the sarpanch and is dated [November] 2022. The letter claimed to offer confirmation of an incident on [date] October 2012 in which the applicant’s parents suffered losses and physical violence, including their house being burnt by Naxalites because of the applicant’s activities as a police informant;
·     A letter to the superintendent of Odisha Police in Mahakalapada by sarpanch members requesting adequate protection against Naxalite violence towards locals, their houses and their amenities. It is dated [date] November 2012;
·     A letter from the Odisha Police at Mahakalapada in Kendrapara district. Dated [date] November 2022, the letter states that the applicant had been an informant regarding Naxalites ‘in important cases’, and that the police rewarded some money for his wellbeing;
·     Various articles about Naxalite violence:
o   Over 162 Security Personnel, 463 Civilians Killed in Naxal Attacks from 2018 to 2022: Report by Nivedita Singh dated 4 April 2021 (News18.com);
o   Maoist Attack on Police Convoy At Odisha-Andhra Pradesh Border, 7 Die, by Siddharth Ranjan Das from All India dated 2 February 2017 (All India);
o   BSF Playing Imp Role for Development, Security In Odisha, Ch’garh: Spl Ops ADG, by Haraprasad Das, dated 24 January 2022 (Pragativadi);
o   Malkangiri encounter: Serious blow to Maoist leadership in Andhra-Odisha border zone, by Rahul Pandita, dated 24 October 2016 (source unknown);
o   3 CRPF personnel killed in Maoist attack in Odisha’s Nuapada, by Press Trust of India, dated 22 June 2022;
o   Naxal Activity Coming Back in Odisha, Telangana: CRPF Director General by Press Trust of India, 19 February 2016;
o   4 Maoists Killed in Odisha Encounter Had Sophisticated Armer, Explosives, by Saurabh Gupta, 6 July 2022 (India News);
o   Twin Blasts Near CRPF Camp Site In Odisha, No Casualties, by Press Trust of India, 12 May 2019;
o   Naxalite Consolidation In Orissa, research by Sanjay Jha, Institute for Conflict Management, Outlook Web Desk, 3 February 2022;
o   Odisha: Red Irritant, by Deepak Kumar Nayak, 8 August 2022 (@indiablooms);
o   Madhya Pradesh: 2 Naxalites shot dead in Supkar Reserve forest area of Balaghat district, 1 December 2022 (no source);
o   Incidents of Naxal violence reduced by 55% over 8 years: MHA report, by Press Trust of India, 7 November 2022;
o   Delhi: Naxalite leader absconding for 26 years arrested for killing police officer, by Tanseem Haider, 10 April 2022 (no source); and
o   Major Naxal attack in Delhi-NCR averted, 10 ultras held, by Press Trust of India, 16 October 2016.
As mentioned above, the applicant appeared by the Tribunal to give evidence and present arguments as to the reasons he is owed Australia’s protection obligations. At the end of the hearing, the applicant’s representative undertook to provide a post hearing submission, and to do so by 15 January 2023.
[In] January 2023, a death certificate pertaining to [Mr A] indicating the person died [in] February 2013. Issued by the relevant authority from the State of Odisha, the death certificate does not indicate the cause of death.
No more submissions were received by the Tribunal. No non-disclosure certificates were attached to the applicant’s Departmental or Tribunal files.
Country information: India
The DFAT Country Information Report on India issued on 10 December 2020 states the following about the Naxalites operating in India:
Naxal Movement (Maoists)
2.79    The Naxal or Maoist movement originated in 1967 as a violent peasant uprising over land reforms in Naxalbari village in West Bengal. It uses guerrilla warfare against security forces to seek to overthrow what it perceives to be a semi‑colonial, semi‑feudal system that oppresses and exploits the masses. The insurgency ebbed and flowed during the 1970s and 1980s, but became stronger in 2004 when the Communist Party of India (Marxist-Leninist) People’s War—commonly known as the People’s War Group—joined forces with the Maoist Communist Centre of India. Violence escalated and the Naxal threat became a greater security concern for policymakers. Naxals continue to operate in central and eastern states including Andhra Pradesh, Bihar, Chhattisgarh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Telangana, West Bengal and Uttar Pradesh. Sources agree Naxal does not represent a political force that effectively challenges the Indian state and note a declining influence over the last decade.
2.80    Forced recruitment and village-level intimidation campaigns do occur, but the success rate is reportedly low. Insurgent groups reportedly ask each family in a village to provide one son to fight, but local sources say the groups rarely threaten families, as they do not want to lose their small support base. The philosophy of the movement mandates the support of the people. There have been reports in recent years Naxal Movement (Maoists) of Naxalite recruitment of children in Chhattisgarh and Jharkhand. DFAT is not able to verify these reports. The Indian government has a reintegration program for Naxal fighters who lay down their arms and surrenders do occur.
2.81    According to SATP, while there has been an overall decline in Maoist violence and activity across India, Maoist insurgents have a proven capability for resurgence and maintain significant operational and on-the-ground capacity. SATP reports 61 fatalities due to Maoist violence (18 civilians, 25 security force personnel and 18 Naxalites) in 2020 (as at 19 April 2020). These figures include the 17 security personnel killed on 21 March 2020 by Maoist rebels in Chhattisgarh in the deadliest attack in three years. In 2019, SATP reported 302 fatalities (99 civilians, 12 security force personnel and 47 Naxalites).
ASSESSMENT OF CLAIMS AND FINDING
Country of reference

The applicant claims to be a citizen of the Republic of India and provided a copy of his Indian passport and other identity documents to the Department with his protection visa application. With no evidence to the contrary, the Tribunal finds that the applicant is a citizen of India, and India is the applicant’s receiving country for the purposes of the refugee and complementary protection assessment.
For the same reasons outlined above, the Tribunal finds the applicant is a national of India for the purposes of the third country protection provisions relating to ss 36(3), (4), (5) and (5A) of the Act.
Under s 36(3), the Tribunal can consider that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside, whether temporarily or permanently, in a country apart from Australia, including countries of which the non-citizen is not a citizen. As discussed at the scheduled hearing, a key issue in this case may arise from the international bilateral agreement between India and Nepal known as the Indo-Nepal Treaty of Peace and Friendship of 1950.
However, as the Tribunal has made findings in this application for review that the applicant does not satisfy either s 36(2)(a) or s 36(2)(aa), it is not required to consider ss 36(3), (4), (5) and (5A) of the Act.
Credibility findings
The mere fact that a person claims to fear 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 reasons claimed. Similarly, the fact 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 the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative enquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself.
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
… care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees’ Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at paragraph 196.) However, the Handbook also states (at paragraph 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so, it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
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. (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The Tribunal accepts the following aspects of the applicant’s personal circumstances to be credible:
·     The applicant was born in [Village 1] in Kendrapara district in the Indian State of Odisha in [year] and that he remained there until he departed India, as claimed;
·     The applicant departed India on an Indian passport issued under the applicant’s name but had that travel document taken from him from a people smuggling syndicate;
·     The applicant’s educational attainment includes completing the equivalent of Year [grade] in the Australian system and completing an apprenticeship as a [Occupation 1] in India;
·     The applicant worked mostly outside of his home village as a [Occupation 1];
·     The applicant was brought up and continues to identify with the Hindu faith tradition; and that he belonged to the [name] caste;
·     The applicant has never married, been engaged for marriage or lived in a de facto relationship and has no children, as claimed;
·     The applicant speaks, reads and writes English, Hindi and Odia;
·     The parents of the applicant have lived continuously in the applicant’s home village, where they own a small farm used largely for subsistence farming and who currently receive some income support from the Federal government of India, as claimed at the hearing; and
·     The applicant is [one] of three siblings[who] are all married and living in India.
It is the dispositive claims of the applicant that after experiencing threatening and intimidating behaviour by Naxalite operatives and supporters in his home village within his home area of Kendrapara district, the applicant became a renumerated police informant. When his informing was discovered by local Naxalites, the left wing extremists targeted the applicant and his parents, culminating in the family house being burnt down, and forcing the applicant to flee the village.
During the hearing, the Tribunal asked the applicant to describe the ideology of the Naxalites, to which he responded that they claimed the forests and the land belong to them and that they oppose the government as they allow the wealth of mines to be taken from the people without providing hospitals and other services to ordinary people. He added the Naxalites wanted no interference from the State and Federal Government so they can run local affairs as a government and the right to control everything. On balance, the Tribunal accepts this to genuinely reflect his actual political opinions.
The Tribunal enquired into the reason he was motivated to oppose the Naxalites operating in his home village. The applicant said the Naxalites came into the village forcing families in their recruitment drives to attend protests against the government over a long period of time. They also were demanding money from and threatening villagers who did not donate to them. This happened to him and his family as well. The applicant stated he did not like their ideas and also mentioned that he witnessed Naxalites beat and humiliate people in the village. Killings of informants and dissenters also occurred in the village. The applicant then decided in 2008 or 2009 to work with local police as an informant and he received a small amount of money for the risk he was taking.
The applicant further claimed he experienced increased pressure to join the Naxalites in 2011 or 2012 when Naxalite violence was growing. Asked if any of his informing led to arrests, the applicant said the police would not tell him. He said that he received payments from the police in cash and that he was very discreet about it. The Tribunal asked, if this was the case, why the Naxalites suspected him of being an informant. The applicant was unable to nominate a specific incident. He then claimed he began to receive phone calls in October 2012 and that Naxalites came to his parents’ home to question them.
The applicant further claimed that on one critical occasion when he was working late, his parents were punished because the applicant was an informant to the authorities. The applicant said that punishment included taking his parents, naked, to the middle of town, and beating them in front of other villagers as a chilling warning to others. The applicant further claimed that his parents’ house was burned down by the Naxalites as part of the punishment. This specifically occurred on [date] October 2012. The applicant submitted a document from the local tahsildar as supportive evidence that his parents’ house was subject to arson by Naxalites. (The document was required to receive government compensation to rebuild.)
The applicant claimed that he was in [Location 1] on the night of [date] October 2012 and remained there for a few weeks while arrangements were made for him to flee to Chennai and to make his way to Australia through a people smuggling syndicate.
The applicant did not flee his home district with his parents and stated they have remained since his departure. The Tribunal enquired into the reasons his parents remained in their home village when he claimed them to have suffered beatings and public humiliation and that their residence was destroyed by the Naxalites to punish them and the applicant. The applicant claimed that they had no other life and that the government has rebuilt their house.
The Tribunal has some credibility concerns about the applicant’s claims to have been an informant against left wing extremists operating in his local area. Of particular credibility concern has been the incongruous and implausible behaviour of the applicant’s parents, who it is claimed suffered humiliation, beatings and arson by Naxalites because of the applicant’s role as a police informant but remained in the applicant’s local village where he claims the Naxalites continue to operate. That they did not relocate to another part of Odisha, or another state within India more generally, would ordinarily undermine the credibility of the applicant. Furthermore, that the applicant hid in a neighbouring town for several weeks before his departure from India via Chennai also indicated that the applicant’s fears of harm by Naxalites operating in the same area lacked urgency and veracity. Another credibility concern has been the prevalence of fraudulent and fraudulently obtained material emanating from India for migration purposes.
As the claims in this matter were not fanciful or far-fetched, the Tribunal has taken an alternative credibility approach to that of the delegate.
In part, it has been able to partially overcome its credibility concerns based on the country information. Country information supportively outlines that there was a surge of Naxalite violence between 2008 and 2012. The South Asia Terrorism Portal (SATP) made the following assessment in 2011:
Open source data compiled by the South Asia Terrorism Portal, indicates that Odisha recorded a total of 108 fatalities – including 62 civilians, 25 LWE and 21 SF personnel in – 44 incidents of killing in 2010, as against 81 fatalities – 36 civilians, 32 SF personnel and 13 LWEs – in 37 incidents of killing in 2009. Significantly, after registering a 38.63 per cent decline in overall fatalities in 2009 as compared to 2008, fatalities surged again, by 33.33 per cent in 2010, as against the preceding year.
(LWE is the acronym for Left Wing Extremist(s) or Left Wing Extremism.)
Furthermore, the Tribunal was able to locate a report from 8 April 2011 from The Indian Express which outlined women outnumber men in Naxalite affected districts in Odisha including Kendrapara, according to the recent 2011 recent census.[1] However, the Tribunal notes that a 2016 research paper describes Kendrapara (along with most coastal districts in that state) as one that is neither moderately nor highly affected by Maoist violence. This does not exclude Kendrapara from being marginally affected or not being affected at all.[2]
[1] In Orissa Naxal dists, women outnumber men, The Indian Express, 8 April 2011, Maoist Conflict in Odisha, by Anshuman Behera, National Institute of Advanced Studies, Bengaluru, >
As the claims in this matter were not fanciful or far-fetched, the Tribunal has taken an alternative credibility approach to that of the delegate. On balance, it has provided the applicant with the benefit of the doubt that he fled his home village because he was identified by Naxalites as an informant, which led to threats against him, the public humiliation and beating of his parents and the scorching of his parents’ home, as claimed. It is further accepted as credible that the neighbouring town, [Location 1], is where the applicant worked and often stayed for around two weeks when not commuting back to his home village on his bicycle, and where he was able to remain without being harmed. It accepts that he remained in [Location 1] while he arranged his departure from India through a people smuggling syndicate. It also accepts that the applicant borrowed money from a relative to depart India, as claimed.
It follows from these findings that the submitted statements from third parties, including from a police official and members of the sarpanch, to be credible and not bogus or fraudulently obtained.
During the hearing, the applicant claimed he borrowed the money for passage to Australia from [Mr A], a close and trusted relative, and that he no longer owed outstanding debts to his relative because he passed away. The applicant provided a death certificate pertaining to his relative to support this. The Tribunal accepts this specific claim and the death certificate to be credibly corroborative.
In accepting these claims and supportive documents and witness statements to be credible, the Tribunal accepts that he fled India because of a genuine and deep subjectively held fear of being seriously harmed by Naxalites, and that he continues to hold that subjectively held fear based on his political opinion and his former role as an informant, should he return to India, particularly his home area.
In making that finding, the Tribunal acknowledges country information from various sources indicate that Naxalites, after establishing villages as strongholds, do intimidate, harass, indoctrinate and extort money from the general population and persecute dissenters. There are also reports of villagers who are, or are suspected to be, informants with the authorities being killed by Naxalites. In 2020, it was reported that Naxals claimed to have killed 25 people for being informers in Chhattisgarh’s Bijapur district. The alleged informants were sentenced after the Naxals held jan adalat (Naxal kangaroo courts). The police admitted that 12 of those killed were informants or ‘coverts’.[3] The UN has also reported on its concerns about Naxalites recruiting children.[4]
[3] Naxals claim they have killed 25 informers in Chhattisgarh’s Bijapur, by PTI, The New Indian Express, 10 October 2022, Naxalites recruiting children: UN Report, The Hindu, 20 June 2012 and updated on 12 July 2016. (>
The Tribunal has considered whether there are objective reasons to consider that he has a well‑founded fear of serious harm to his home area of Kendrapara district now or into the foreseeable future.
The 2021 SATP assessment about LWE violence in Odisha is one that points to one of dwindling strength:[5]
An analysis of over ground and underground Maoist activities in Odisha also suggests a waning influence. According to SATP, in 2021, Maoist activities were reported from 10 Districts (Odisha has a total of 30 Districts). Six Districts (Bargarh, Bolangir, Kalahandi, Kandhamal, Malkangiri, and Rayagada), fell in the ‘moderately affected’ category, while the remaining four Districts (Koraput, Nabarangpur, Nuapada and Sundargarh) were ‘marginally affected.’ By comparison, in 2020, Maoist activities were reported from 12 Districts. Three Districts (Kalahandi, Kandhamal and Malkangiri) were ‘moderately affected’; while the remaining nine Districts (Bargarh, Bolangir, Ganjam, Koraput, Nabarangpur, Nuapada, Rayagada, Sambalpur, and Sundargarh) were ‘marginally affected’.
Yet, there are lingering worries. At least 10 Districts of the State – Bargarh, Bolangir, Kalahandi, Kandhamal, Koraput, Malkangiri, Nabarangpur, Nuapada, Rayagada, and Sundargarh – are still covered under the ‘Security Related Expenditure (SRE)’ scheme for conducting focused operations against the ultras, among 70 LWE-affected Districts in 10 States across the country, identified by the Union Ministry of Home Affairs (UMHA) for the scheme. Moreover, three Districts – Kalahandi, Kandhamal and Malkangiri – are included in the ‘25 Most Affected Districts’ in eight States across India. Koraput is classified as a ‘District of Concern,’ along with another seven Districts in five States.
[5] Odisha: Assessment 2022, SATP, >
The DFAT Country Information Report India 2020 also noted an instance of conversion violence in India whereby Naxalites acted against a vexatiously alleged informant.
Local sources report instances of violence linked to religious conversion. According to Indian non-profit organisation Persecution Relief, in February 2019, 40-year old Anant Ram Gand, a Christian convert, was beheaded in Raigarh tehsil, Odisha. Villagers who had opposed his conversion nine months earlier allegedly armed local Naxals to carry out the murder, claiming the man would reveal Naxal secrets to the police. A week before the attack, seven villagers had reportedly given Gand an ultimatum to renounce Christianity or face death. In February and May 2019 respectively, two men were killed in Chhattisgarh following opposition to their conversion to Christianity. On 24 October 2019, a Christian, Pastor Saanvi, was beheaded in Odisha after warnings to stop his ministry work.
While that is a disturbing example of Naxalite violence, the district in which it took place, Nabarangpur, remains a notably affected area by Naxalite violence over a long period of time, and it is a considerable distance from Kendrapara (by more than 580 kilometres).
The SATP has not mentioned Kendrapara district as being an area within Odisha that is even marginally affected by Naxalite or LWE violence over a long period of time. The Tribunal is unable to locate any recent articles about Naxalite incidents in the applicant’s home district. The applicant and his representative did not submit any articles indicating Kendrapara district as an area affected by recent Naxalite activities, despite them having the opportunity to do so in a post hearing submission.
Furthermore, the witness statements provided by the applicant do not indicate that Naxalite violence continues to cause problems for people living in Kendrapara, including his home town, or that he faces imminent danger in returning to his home village or district.
The applicant argued at the scheduled hearing that the Naxalite network operates throughout Odisha and India more generally in a manner where the authorities are unable to adversely impact on its reach. However, as the DFAT country information outlined above shows, there has been an overall decline in Maoist violence and activity across India. The SATP specifically states that Odisha has done incredibly well in the fight against the Naxalites over the past years, but the Naxalites are not yet a spent force. Strengthening the necessary administrative, developmental and security outreach, and addressing critical security deficits, will help contain the remaining threat.[6]
[6] Odisha: Assessment 2022, SATP, type="1">
By development outreach, the SATP was referring to anti-poverty programs operating in India to undermine some of the root causes underpinning Naxalite resilience, such as chronic poverty and the displacement caused by large scale projects like dams, mines and forestry in Odisha.
The Tribunal does not assess that Maoist insurgents do not have a proven capability for resurgence and maintain significant operational and on-the-ground capacity, including in Odisha. To that extent, the Tribunal accepts the applicant, if he returns to Kendrapara as his home area, has a chance of serious harm based on his political opinion and as a police informant.
However, given the lack of evidence of any LWE activities in Kendrapara district over a sustained period of time, the Tribunal assesses that the applicant’s home area is currently and into the foreseeable future an area that can be reasonably characterised as one that is not affected or is only marginally affected by Naxalite activities which target special forces, such as the local police. Furthermore, this finding is reasonably underpinned by the applicant’s parents remaining in the home area of Kendrapara for more than 10 years. Their lack of displacement cannot be solely or substantially attributed to resigning to the threat of LWE – as argued by the applicant – when it was reasonable for them to resettle to other parts of India, including with other adult children living outside of Kendrapara. Instead, the applicant’s parents took advantage of rebuilding their house through a government program. The Tribunal notes that the applicant does not claim his parents have continued to be harassed or threatened or even harmed any further since his departure or has provided evidence to support such a claim.
The Tribunal is satisfied that the authorities in Odisha and India more generally have contained Naxalite violence in the applicant’s home area to the extent that the applicant will be able to return to Kendrapara district as his home area to face only a remote, far‑fetched or insubstantial chance, but not a real or substantial chance, of serious harm for one or more than one of the reasons mentioned under s 5J(1)(a), namely his political opinion and other related reasons, such as his being a former police informant, should he return to it, now or into the foreseeable future.
In making this finding that the applicant does not have a real chance of serious harm based on his political opinion and his accepted history as a police informant about LWE activities in his home area of Kendrapara district in Odisha, the Tribunal is not required to consider whether the applicant is required to relocate to another part of his home state or India more generally.
Accordingly, the Tribunal is not satisfied that the applicant is a person who has a well‑founded fear of persecution for any of the reasons outlined under s 5J(1)(a) in regard to this set of dispositive claims about Naxalite violence, and the applicant does not satisfy the criterion set out in s 36(2)(a) based on the same set of claims.
The Tribunal has considered the applicant’s dispositive claims against the complementary protection provisions of the Act. In MIAC v SZQRB (2013), the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugees Convention definition.[7] Unlike the refugee criterion, s 36(2)(aa) does not require that an applicant hold a subjective fear.[8]
[7] MIAC v SZQRB (2013) 210 FCR 505 per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342]; reflected in the Complementary Protection Guidelines: see Department of Immigration, PAM3 ‘Complementary Protection Guidelines’, section 32, as re-issued 21 May 2015. The Court in SZQRB was considering an international treaties obligation assessment conducted by an officer of the Department of Immigration and Citizenship which had applied a test of ‘more likely than not’ when assessing ‘real risk’. Although that assessment did not directly apply s.36(2)(aa), the issue before the Court centred on the interpretation of ‘real risk’ for the purpose of the obligations codified in that provision. See also MZYXS v MIAC [2013] FMCA 13 (Riethmuller FM, 31 January 2013) (upheld on appeal in MZYXS v MIAC [2013] FCA 614 (Marshall J, 21 June 2013)) at [19] where the Court stated that the ‘real risk’ and ‘real chance’ tests appeared substantially the same.
[8] SZVVE v MIBP [2015] FCA 837 (Perram J, 13 August 2015) at [21].
As outlined above, the Tribunal has made findings that the applicant has a remote or insubstantial chance of serious harm, but not a real chance of serious harm, if returned to India. Given this finding and with consideration of the case law in MIAC v SZQRB, the Tribunal finds that the applicant only has a remote or insignificant risk, but not a real or substantial risk, of significant harm of any kind, including torture and the arbitrary deprivation of life, due to the applicant’s claims of persecution by Maoist extremists.
Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk of significant harm based on his claims about Naxalite violence, and he does not satisfy s 36(2)(aa).
Cumulative findings
The applicant did not advance any other reasons, including reasons relating to his religion, his ethnicity, or for a combined reason involving his religion and ecocity, including caste, his political opinions, his nationality or membership of a particular social group, or his socio-economic status, that have not already been addressed in the findings above.
There are no more residual claims to consider in this matter.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and in view of the findings above, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of his religion, membership of a particular social group, or any other reason mentioned under s 5J(1)(a), 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 as required by s 36(2)(a).
Accordingly, the Tribunal finds that he does not satisfy the criteria in s 36(2)(a) and s 5H(1) of the Act.
When cumulatively considering the applicant’s accepted circumstances, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm as defined in s 36(2A) of the Act.
Therefore, the Tribunal finds that he does not satisfy the criterion in s 36(2)(aa) of the Act.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Brendan Darcy
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.
…