2104791 (Refugee)

2104791 (Refugee) [2022] AATA 4879 (27 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Muhammad Chaudhry (MARN: 1174774)
CASE NUMBER:  2104791
COUNTRY OF REFERENCE:                   India
MEMBER:Katherine Harvey
DATE:27 October 2022
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 October 2022 at 2:27pm

CATCHWORDS
REFUGEE – protection visa – India – threats of harm by drug dealers and distant relatives – pursued over unpaid debts – inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K, 5L, 5LA, 36, 65, 411, 499
Migration Regulations 1994 (Cth), Schedule 2
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 14 April 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant is a [age]-year-old man who claims to be a citizen of the Republic of India (India).
He arrived in Australia [in] July 2019 on a visitor visa and applied for the protection visa on 8 October 2019.
Claims
In a statement provided with his application, the applicant made the following claims.
In 2017, he paid 1 million rupees to be sent to [Country 1] or [Country 2] via [Country 3].
When he arrived in [Country 3], he was contacted by suspicious people and told to do drug trafficking.
He never wanted to do that, but he was trapped in [Country 3] and got scared. For that reason, he only stayed for about one month in [Country 3].
He got a ticket to leave [Country 3] the night before he left so that the people would not know he was leaving.
Once back in India, he asked for his money back because they had not honoured the deal.
Now those people have started to threaten him and have told him to keep his month shut or suffer the consequences.
All the time before he left for Australia his life was miserable. Therefore, he left India for Australia as he feared for his safety.
He strongly believes his life will be at risk if and once he goes back to India.
He will add more details later on.
There is no safety in India.
On 3 February 2021, the Department of Home Affairs wrote to the applicant requesting more information and documentary evidence, including details of why he claims his life is at risk, his employment history in India, how he has supported himself in Australia, why he could not live elsewhere in India and why he could not seek protection from the authorities.
On 3 March 2021, the applicant’s representative submitted a seven-page statement that included the following.
In June 2016, the applicant’s family’s land was divided and there was cheating and a bloody conflict in which he and his family was threatened, so he decided to leave the country. A distant relative suggested he could help the applicant get a visa to go to [Country 3].
When he returned to India, his distant relative [Mr A] and his people threatened him.
[Mr A] charged 500,000 rupee and sent him to [Country 3] with three other people who crossed borders to Europe, but the applicant got stuck in [Country 3]. [Mr A] phoned him and told him to take a bag to an unknown area but he declined as he was suspicious that the bag contained illegal substances. [Mr A] said he would be held accountable for the financial loss.
He was scared and returned to India [in] December 2017. [Mr A] demanded 1 million rupees for his loss and threatened the applicant and his family. Human smugglers falsely prosecuted the applicant for money owing which he had not borrowed.
He was unemployed in India and supported by his parents. When he returned he could not work because the people threatened him. Also the situation caused him a lot of stress and panic attacks and he has received neuropsychiatry attention.
He has worked various jobs in Australia from February to December 2020.
He fears harm in other parts of India. On 5 August 2018, he went to his maternal uncles’ house in another town. During his stay, he was attacked by four to five unknown men who caused damage to his car. He reported the matter to the police but no update has been provided.
He claims that he will be severely tortured or killed if he returns to India. [Mr A]’s previous pattern of behaviour of physical and verbal abuse will continue and escalate and he would not get support from immediate family or friends because of [Mr A's] pervasive influence.
The police continue to evoke fear and distrust among the people.
He could not relocate because [Mr A] has a lot of people working for him and powerful political contacts and contacts in the police. They will find him in every place in India. Corruption in India is all pervasive and it is a kleptocracy.
The applicant filed a complaint on 10 January 2018 at [Location 1] Police Station against the agent for fraud, smuggling and drug trafficking but no legal action was taken and the situation was settled with the applicant paying the agent for the loss. The applicant filed another complaint at [Location 2] Police Station on 5 December 2018 after his attack but no action was initiated.
India is a restless state in anarchy. The authorities do not have sufficient resources to cope with all the problems.
The applicant has a well-founded fear of persecution due to membership of a particular social group. There is a real chance of persecution as his family have been attacked on different occasions and he is not able to seek help due to his uncle’s political connections.
The applicant said he is suffering from depression and stress.
The submission included the following documents: an ‘investigation report’ dated 6 March 2018, ‘[Mr A] police report’, a ‘police report’ dated 20 March 2018, a ‘police report’ dated 5 December 2018 and ‘[Applicant’s name] Neuropsychiatry report’.
On 14 April 2021, a delegate of the Minister refused to grant the visa.
The review application
On 15 April 2021, the applicant applied for a review of the delegate’s decision.
The applicant’s representative submitted a pre-hearing statement dated 11 August 2022 that provided a more detailed description of the applicant’s experiences in [Country 3] and what happened after his return to India. This included that he was being prescribed with antidepressants on 16 December 2017, the incident on 15 December 2018 in [Location 2] and constantly receiving threats from [Mr A] and a Punjabi drug smuggling group.
The applicant appeared before the Tribunal on 12 August 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 and the representative attended the Tribunal hearing from interstate by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. Where relevant, the applicant’s evidence to the Tribunal is referred to below in the Tribunal’s analysis.
On 2 September 2022, the applicant’s representative provided a post-hearing submission containing documents with the file names ‘rent deed’, ‘prescription’, ‘psychiatry report’ and ‘translated police report’. No explanation or other information was provided with the documents.
On 5 September 2022, the applicant provided a three-page document called ‘translated police report 2’ dated 10 July 2017 with notary stamps and a date stamp of 2 Sept 2022. No explanation or other information was provided.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
The applicant provided a copy of the delegate’s decision with his application for review. The Tribunal is satisfied that the decision is reviewable under s 411(1)(c) of the Act.
Based on the applicant’s current passport sighted at the hearing, the Tribunal finds that the applicant is a national of India and assesses his claims accordingly.
The applicant was in Australia at the time of this decision.
As discussed at the hearing, it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
The Tribunal did not find the applicant to be a credible and reliable witness and for the following reasons has concluded that the decision under review should be affirmed. In reaching this view, the Tribunal had had regard to the significant inconsistencies between his application, his written evidence to the Department and his written and oral evidence to the Tribunal, as well as the shifting and unpersuasive nature of his oral evidence at the hearing.
In his application, the applicant said that he paid 1 million rupees to be sent to [Country 1] or [Country 2] via [Country 3]. He told the Tribunal that his brother runs a [shop] in [Country 2] and he wished to join him to work as a driver. In response to the Department’s request for further information about his claims, he said that his father paid [Mr A] 500,000 rupees, and that [Mr A] demanded 1 million rupees on his return to India. In the pre-hearing submission to the Tribunal, he claimed he paid an individual in [Country 3] 150,000 rupees. At the hearing, he said he and his father had paid [Mr A] 850,000 rupees and later that they had paid him 500,000 rupees and paid another 150,000 rupees (converted to Euros) to people in [Country 3]. The applicant said that he could provide documentation to verify the conversion of 150,000 rupees to Euros but this information was not provided in the post-hearing submissions or by the time this decision was written.
At the hearing, the Tribunal discussed its concerns with the inconsistencies in the amounts the applicant said he had paid to [Mr A] and others. The Tribunal explained that these concerns could lead to the conclusion that the applicant’s claims for protection were not genuine. After raising these concerns with the applicant, he said that the total amount he had to pay was 1 million rupees and, between he and his father, they had paid 650,000 rupees. Based on the information in the applicant’s passport, the Tribunal accepts that the applicant travelled to [Country 3]. The Tribunal accepts that the applicant and/or his father paid an agent to facilitate that travel. The Tribunal does not accept that the applicant or his father owe a debt to [Mr A] or anyone else that is related to that travel.
The applicant claimed that he left [Country 3] because he was concerned that he would be used to smuggle drugs into [Country 2] or that he would be kidnapped and held for ransom. As discussed at the hearing, the applicant did not see any drugs and he could not say what type of drugs he was talking about. He said he thought people were putting drugs into the car in [Country 3] that was to take him to [Country 2], but he did not know if there were drugs in the car. He said the only reason he had for his concerns was what ‘the Pakistani guy’ in the club had told him. The Tribunal accepts that the applicant became concerned about how he would enter [Country 2] from [Country 3] and he decided to return to India. On the information before it, the Tribunal does not accept that the applicant returned to India because of concerns related to drugs or drug smuggling.
At the hearing, the applicant claimed he is now being asked to pay 10 million rupees because the people who arranged his travel lost this amount because he did not go to [Country 2]. When asked why he had not mentioned this in his initial application, he said at the time he was confused and not feeling OK as he did not want to stay in Australia and he did not want to return to India and he forgot to mention it. When asked why he did not mention it when the Department requested more information, he said he had not mentioned it initially so he did not know if he should mention it now or not. When asked why he had not included it in his pre-hearing submission dated the day before the hearing, he responded, ‘the reason is the same, because I didn’t mention it the first time and the second time, so why should I mention it the third time?’ As discussed at the hearing, the Tribunal was concerned about the credibility of the applicant’s new claim that was not raised in his application before the primary decision was made. When asked why he was only raising it at the hearing, the applicant said, ‘at the moment, I’m just explaining everything, what actually happened to me’. As discussed at the hearing, if such a request existed, the Tribunal would have expected the applicant to have raised it before. The Tribunal is satisfied that the applicant does not have a reasonable explanation why this claim was not raised before the primary decision was made. The Tribunal does not accept that the applicant is being asked to pay 10 million rupees.
The applicant said that he had suffered harm in India when masked people approached a car that he was sitting in and smashed the driver’s side window before he sped away. The applicant submitted a police report, purportedly reporting the incident. As discussed at the hearing, the Tribunal was concerned about the credibility of the police report and the other documents in the Department file, given the documents are in English on plain paper, not letterhead, and are unsigned, and the original documents were not supplied. The applicant undertook to provide authorised translations and the original documents. In the post-hearing submission, the applicant provided a copy of a two-page undated ‘translated police report’. It differs from the one on the Department’s file in that it contains the signature of the applicant, a number of notary stamps and a handwritten date on the second page of 24/8/22, and the second police station stamp that appears in the copy on the Department’s file is obscured. The original documents were not supplied. The Tribunal does not accept that the documents are genuine and the Tribunal gives no weight to these documents.
At the hearing, the applicant recounted an incident that he said occurred in Delhi in March 2019. He said two masked men on a motorbike, who he did not know but he thought from their motorbike and their behaviour that they were not good people, approached him and told him to do what they were saying, so it would be better for him. The applicant said he thought they were talking about the supply of drugs. The applicant had not previously mentioned this incident and the Tribunal does not accept that the incident occurred. Based on the information before it, the Tribunal does not accept that the applicant has experienced or been threatened with harm in India.
At the hearing, the Tribunal explained to the applicant that, on the information before it, there were not grounds for believing that as a necessary and foreseeable consequence of removal to India that there was a real risk that the applicant will suffer significant harm because there is no current threat. The applicant said when he came from India he was under threat and if he goes back it may happen again. He said that [Mr A] and the drug dealing gang may implicate him with false allegations or some deeds and that they may be looking for him at the moment. Based on the information before it, the Tribunal is not satisfied that there is a real chance that the applicant will experience serious harm or a real risk that the applicant will suffer significant harm in the foreseeable future from [Mr A], a drug dealing gang or anyone else.
The applicant had said in his submission to the Department that there was a family dispute over land and he and his family had been threatened and that was the reason he went to [Country 3]. He claimed that there had been a bloody conflict when the land was divided in June 2016. At the hearing, the applicant explained that his father is now farming on their farm, having reached the age of [age] and being required to leave his previous job. He also said that nothing had happened to his family since he had left India and that the court case between his father and members of his father’s family is continuing. In post-hearing submissions, the applicant provided a copy of a lease showing that his father is renting a house in the village where he says that his family lives. The applicant did not provide any information to support his claim that there is a land dispute between his father and his father’s family or that there is an ongoing court case. The Tribunal accepts that the applicant’s family has not experienced harm since he left for Australia. On the evidence before it, the Tribunal does not accept that the applicant and his family have experienced harm in the past or been threatened in relation to any land dispute. The Tribunal finds that there is not a real chance that the applicant will experience serious harm or a real risk that the applicant will suffer significant harm in the foreseeable future for reasons of his membership of his family in connection with any land dispute.

In his application, the applicant claimed that he has a well-founded fear of persecution due to membership of a particular social group. When discussed at the hearing, the applicant claimed that he was seeking protection for a refugee reason as [Mr A] has friends who are politicians. He said that they had not allowed his complaint to be registered. The applicant provided no evidence to support this claim and documents purporting to be about the complaint are among those that the applicant submitted in his application. The Tribunal does not accept that the applicant has experienced or been threatened with harm in India. The Tribunal finds that there is not a real chance that the applicant would be persecuted for the essential and significant reason of his membership of a particular social group, political opinion, race, religion or nationality.
The applicant claimed that the situation in [Country 3] caused him a lot of stress and panic attacks and he had received neuropsychiatry attention three days after his return from [Country 3]. As discussed at the hearing, the applicant had not submitted information to support a claim that he suffers from depression. In his post-hearing submission to the Tribunal, the applicant provided copies of two handwritten sheets written in English with the file names ‘psychiatry report’ and ‘prescription’. These documents had also been provided to the Department in a two-page attachment with the file name ‘[Applicant’s name] Neuropsychiatry report’. The document called ‘psychiatry report’ contains handwritten dot points written on a notepad for [named] Neuropsychiatry Clinic. It is dated 16 December 2017. It is not a medical report with a diagnosis and it is unsigned. The ‘prescription’ is dated 21 December 2017 and is handwritten on a plain sheet of paper. It does not contain a signature or the name of a medical practitioner. The handwritten dot points do not contain a clear information about a prescription for medication. The copy provided to the Tribunal differs from that provided to the Department in that it has a stamp of public certification issued on 26 August 2022 to the applicant, two additional handwritten notes, being the name of the applicant’s father and ‘Do not fill this prescription’ and various notary and other stamps. The applicant did not provide any information to suggest that he has current mental health issues. The Tribunal does not accept that the documents are a medical report or a prescription for treatment. Based on the information before it, the Tribunal does not accept that the applicant has suffered a mental health issue in the past. Based on the information before it, the Tribunal does not accept that the applicant has a current mental health condition that will affect him now or in the reasonably foreseeable future if he were to return to India.
For all of the above reasons, the Tribunal finds the applicant not to be a credible, truthful and reliable witness. His evidence shows a propensity to tailor evidence to achieve his own purpose. The Tribunal finds that the applicant has fabricated and concocted his claims to achieve a favourable migration outcome. The Tribunal, therefore, does not accept that the applicant and/or members of his family were threatened or harmed by [Mr A], a drug dealing gang, members of his father’s family or anyone else. The Tribunal does not accept that the applicant and/or his father are being pursued for unpaid debts. The Tribunal does not accept that the applicant has experienced harm in India. The Tribunal is not satisfied that there is a real chance that the applicant will experience serious harm or a real risk that the applicant will suffer significant harm if he returns to India now or in the foreseeable future.
Conclusion
After considering all of the applicant’s claims, both individually and cumulatively, the Tribunal finds that there is no real chance that the applicant will face serious harm in India for the reason of his race, religion, nationality, membership of a particular social group or political opinion. The Tribunal finds that the applicant does not have a well-founded fear of persecution. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of ‘torture’ in s 5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s 5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s 5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty. The Tribunal, therefore, is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Katherine Harvey
Senior Member

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

[2022] AATA 4879

27 October 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing