2106218 (Refugee)

2106218 (Refugee) [2023] AATA 2527 (7 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2106218

COUNTRY OF REFERENCE: India
MEMBER:Meena Sripathy
DATE:7 June 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 07 June 2023 at 3:07pm
CATCHWORDS
REFUGEE – protection visa – India – particular social group – young girls in India – vulnerable child – religion – Christian – backward class – gender-based harm – sexual abuse – identity documents – Indian citizenship for a child born overseas – stateless children – country of former habitual residence – access to education and healthcare – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 336F, 499
Migration Regulations 1994, Schedule 2
CASES
FER17 v MIBP [2018] FCCA 3767
FER17 v MICMA (2019) 269 FCR 580
SZEAM v MIMIA [2005] FMCA 1367
Tahiri v MIAC [2012] HCA 61
VSAB v MIMIA [2006] FCA 239
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 May 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of India, applied for the visa on 28 April 2020. The delegate refused to grant the visa on the basis of finding that, having considered all the claims individually and cumulatively, the applicant would not face a real chance of persecution if she were to return to India now or in the foreseeable future; and the delegate was not satisfied that there was a real risk she will suffer significant harm as outlined in s36(2)(aa) of the Act.
The applicant applied for review of the decision to the AAT on 10 May 2021.
The applicant (represented by her parents and legal representative) appeared before the Tribunal on 13 September 2022 and her parents and legal representative appeared on her behalf on 6 February 2023 to give evidence and present arguments. The hearing was combined with AAT case number 1700464, relating to the applicant’s sister, on the basis that the claims raised for each matter were the same, both rely on evidence provided on their behalf by the parents and they are both represented by the same representative. The Tribunal received oral evidence from both parents, [Mother A] and [Father A]. The applicants‘ legal representative was present at the hearings. A separate decision has been made in respect of case number 1700464.
The issue in this case is whether there is a real chance, if the applicant returns to India now or in the reasonably foreseeable future, that she would be persecuted for one or more of the following reasons: her race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to India, there is a real risk that she will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
Evidence before the Department
The applicant was born in [specified year] in Australia to Indian citizen parents. Her religion is indicated as Christian. Her family members, not included in the application, are her father, mother [and siblings] who had previously been refused a protection visa, and a [sibling] who resides in India. The applicant does not, and has never held, a passport.
In response to her reasons for claiming protection the following information is provided:
·The applicant will be at risk of gender based harm and sexual abuse amounting to serious and significant harm from members of the applicant’s family as well as the broader community, given the history of sexual abuse experienced by her mother at the hands of such people.
·The applicant fears such harm on the basis of her membership of her family group, and as a member of the group of young women in India and/or vulnerable child in India.
On 23 June 2020 the following documents were submitted in support of the application:
·Applicant’s NSW Birth Certificate
·Document entitled Statement of Claims made by [Mother A] dated 22 June 2020 in support of the applicant’s claims for protection – detailing a history of sexual abuse experienced by the writer at the hands of family members and others in India. The statement also provides information about the return to India of the applicant’s sister, [Sister A].
·Confidential report relating to [Mother A] dated 12 June 2020 by [Counsellor A], Sexual Assault Counsellor [at Health Service 1]
The applicant’s parent/guardian was invited to attend an interview by telephone with an officer of the Department on 16 September 2020. In response to this invitation the representative requested a face to face interview rather than by telephone due to the particular circumstances of the applicant’s parent’s past abuse history and state of mental health.
On 21 September 2020 the Department issued an Invitation to comment on information to the applicant. The particulars of the information were as follows:
·Copy of birth certificate of [Sister A] submitted by her parents with their previous protection visa application, indicating her biological parents as [Mother A] (the applicant’s mother) and [Father A] (the applicant’s father)
·Email correspondence from the applicants’ parents to the Department on 6 March 2015 stating that [Sister A] returned to India to live with their parents.
The invitation indicated the relevance of the above information was that it was inconsistent with information contained in the applicant’s mother’s statement in relation to harm feared from the applicant’s mother’s family in India and that [Sister A] is adopted and could lead to adverse credibility findings. The applicant was also invited to provide comments or further information regarding country information from DFAT before the Department about the risk of gender based harm to women in India.
On 19 October 2020 the applicant’s representative submitted the following documents:
·Response to Invitation to comment letter from [Mother A], explaining the history of her involvement and care of the child [Sister A] and response to the Department about [Sister A’s] return to India provided in March 2015.
·Documents and evidence supporting the above response, including screenshots of communications between [Mother A] and [a named official] at the hostel where [Sister A] resides; National Identity Registration for [Sister A] showing [an] address in 2015 at [Agency 1], [at an address in] Nagercoil; Confirmation of residence and guardianship of [Sister A] at [Agency 1 in] Nagercoil, Tamil Nadu from June 2014 to May 2019 and at [School 1 in] Nagercoil, from 2019-2020; evidence of email communication between [Mother A’s] father and [Father A] requesting money dated 20 April 2020; evidence of emails sent by [Father A] with a joint sign off “[Father A and Mother A]”; emails regarding travel arrangements made for [Sister A] in 2014; evidence of agreement between [Sister A’s] birth mother and [Ms and Mr A] for [custody] and care provided by Affidavit dated 19 January 2011.
·Written submissions dated 19 October 2020 by applicant’s representative, addressing the applicant’s claims for protection under the refugee and complementary protection criteria, relevant country information, state protection and relocation. The submissions also address the invitation to comment letter.
·Copy of report of Human Rights Watch, Breaking the Silence, Child Sexual Abuse in India, February 2013.
On 23 December 2020, in response to an invitation for the applicant’s father to attend an interview by telephone, a written Supporting Statement on Behalf of the applicant was provided by her father.
The applicant’s father was invited to, and attended, an interview by telephone with an officer of the Department on 1 March 2021. The Tribunal has listened to an audio recording of this interview included in the Department file.
The applicant’s representative provided a post interview submission dated 8 March 2021.
A decision to refuse the protection visa application was made by the delegate, having considered all the material before it, on 5 May 2021.
Evidence before the Tribunal
An application for review of the decision to refuse the visa was made to the Tribunal on 10 May 2021, together with the following documents in support:
·Statement of Claims for the applicant by [Mother A] dated 22 June 2020
·Supporting Statement on behalf of the applicant by [Father A] dated 23 December 2020
·A Confidential report relating to [Mother A] dated 12 June 2020 by [Counsellor A], Sexual Assault Counsellor [at Health Service 1]
On 6 September 2022 the Tribunal received from the applicant’s representative two documents titled ‘Discharge Summary’ from [a named] Hospital relating to attendances in May 2008 and February 2013, which it is submitted relate to incidents referred to in [Mother A’s] statement previously submitted to the Tribunal.
Tribunal hearing 13 September 2022
At the hearing the Tribunal took oral evidence from applicant’s mother, [Mother A], and her father separately. A summary of their evidence follows.
Evidence from [Mother A] (mother of applicants)
The witness gave evidence about her current living and employment circumstances. She lives at an address in [Suburb 1] with her husband and three children. She is not working, but is engaged in voluntary work through a charity she registered herself, providing food to people who need it. Her husband is working full time as [an occupation 1], he has been working for the past 7 years. The children are in [specified school grades]. She has another daughter, her adopted daughter [Sister A], who has returned to India.
The Tribunal asked about the circumstances of [Sister A] coming into their family. She first met her in 2010 at a children’s home in Tuticorin. She is the child of a [Nationality 1] woman, who had given her to be cared by her grandmother, because she was unable to care for her. The grandmother placed her in the children’s home. The mother lived in a place called [Town 1] in the far north of the country. The witness was living in Bangalore at that time and knew a woman at the children’s home in Tuticorin. She agreed to take the child into her care, following a visit from the grandmother and mother to her in Bangalore. [Sister A] came to live with her in 2011, in Bangalore. They tried to do an adoption process but they asked too many questions and the mother ran away. They were then given permission by the child’s mother to obtain a birth certificate for [Sister A] showing them as parents as an alternative to formal adoption. They approached a lawyer and obtained the paperwork.
On 23 October 2011 she came to Australia with her husband, [one child] and [Sister A]. [Sister A] had a number of health problems [details deleted] and had also started showing difficult behaviours including sexual behaviours and was behaving strangely with their [other child]. They were struggling financially and were concerned for the welfare of [the other child]. They contacted the [Nationality 1] officer in Tuticorin who acted as an intermediary for their arrangements with [Sister A] and explained that they would like to return her to India to a hostel. The witness explained that she found the hostel through her former classmates from college. Through these contacts they were able to obtain admission to the hostel/orphanage for [Sister A]. The Tribunal asked why they did not send her back to her grandmother. She said the grandmother had returned to [Town 1] and the mother’s family at that time did not want to accept her. They trusted her to do the right thing by the child. The witness said they sent her to the hostel and she remains there to date. She and her husband pay all the fees and costs associated with [Sister A’s] care and have done so since they sent her there. When asked what the plan is in future for [Sister A], the witness said her birth mother has recently been in contact with her and she now wants to know more about her. She informed her that her in laws recently passed away and she is now interested in re connecting with her daughter. This development occurred in May 2022. The witness indicated that she is okay for the birth mother to reconnect and potentially resume care responsibility for [Sister A].
The Tribunal asked the witness about other family members in India. She said she has her mother, father and sister in Tuticorin. Her sister has [children] who are [specified ages] old. She is not in contact with her now. She also has [another sibling] who is married with children. Her grandfather is still alive and she has numerous maternal and paternal aunts and uncles, all in Tuticorin and nearby places. The Tribunal asked about her contact with her family. She said her last contact was [number] years ago, to tell them she was pregnant with [the Applicant] and had some issues with her pregnancy. She has not had any contact since then. The Tribunal asked if her husband has had contact? She said he was previously in contact and sending money but that stopped now and he is not in contact with him anymore.
The Tribunal asked about the history of her marriage. She said she married in December 2006, in an arranged marriage. She was living and studying for her [Qualification 1] in Chennai for two years in that period. After her marriage she lived with her husband in Chennai but she also went back to Tuticorin because of mistreatment by her husband’s family. They mistreated her because of dowry issues, cooking and cleaning and would not let her sleep in the same room as him. When asked if they lived in the same house, she said she and her husband lived separately but he made them go to his family. When asked to clarify what family he had, she said he had aunts and uncles and a brother and a sister. His parents were already deceased. She said her husband travelled a lot for work to other parts of the country and that was also why she went to Tuticorin.
The Tribunal asked if they lived anywhere else. She said they lived in Bangalore. After the incident in 2008 when she was taken by the police, she returned to her husband in Chennai and from there they went to live in Bangalore. Their [first child] was born in [year]. Her parents made her return to Tuticorin for the birth of her child. She stayed there for 2-3 weeks and then they returned to Bangalore with her husband. They lived in Bangalore from 2009 to 2011 and then returned to Chennai in 2011 and from there came to Australia.
The Tribunal noted that she has previously given information in her own reviews that she did not return to Tuticorin since 2008. She said in 2009 she did some work with colleagues of her husband [specified]. They wanted her help to obtain local information.
The Tribunal asked the applicant why she continued to travel back to Tuticorin after her marriage given the claims she is now making about the history of abuse from her family members and authorities there. She said her husband was not that attached to her and she just believed things would get better. She kept doing whatever her father asked of her because she was constantly seeking his approval and love. She explained she was not given much freedom and just did as she was told.
The Tribunal noted her own protection application was refused on the basis that her claims were not accepted and asked why she did not appeal that decision. She said she did not have any money at that time.
Regarding the hospital discharge documents submitted to the Tribunal, the witness said that she obtained this document soon after the hearing but it was too late. She submitted it as part of her Ministerial intervention request soon after that. The Tribunal asked why she did not mention these claims of sexual assault by her family members in her claims at her own hearing. She said she did not feel comfortable at that time talking about such things with a male lawyer and male tribunal member. It was only much later when she was in hospital [giving birth] that she started to open up about what she has been through and started the counselling. She started to see the [Agency 2] counsellor and told her about the family abuse. The witness then said she may not have mentioned it to that first counsellor. Subsequently, after her pregnancy with [the Applicant] she started seeing another counsellor and it was that counsellor ([Counsellor A]) that she first disclosed the family abuse to. She last saw that counsellor last year and is not seeing anyone now. She finds it very hard to keep speaking about these things. They have ruined her life.

The Tribunal asked the witness about her return to India in 2013. She said she returned because her sister’s [child] had died and her parents were not supporting her and she was so broken and suicidal so she decided to go back despite the risk to herself, to support her sister even though she does not have a good relationship with her sister. While there her father made her attend protests and they were arrested and she was subjected to further rapes.
The Tribunal asked the witness what she fears for her daughters. She was subjected to rape in India, her parents forced her back to Tuticorin for the delivery of her baby. She does not want her father to get his hands on her daughters. Her grandfather is still alive. She experienced abuse, harassment and assault at school. She does not want these experiences for her daughters. She also fears harm from her husband’s relatives. She has heard from his family members of abuse that they have experienced.
The Tribunal asked where she would live if they returned to India, given they have lived in Chennai and Bangalore in the past. In response she said she does not know, she is not happy to go anywhere because she is afraid of harm. The community in which they live is not safe for children. Her children grew up here and only know this world. Here they can be safe and are happy to go to school. There even if you go for tuition you can be abused.
The witness said she is afraid for her children, because as a person who has been through the trauma that she has been through, she is not certain she can protect them. She cannot guarantee their safety when they are outside.
The Tribunal asked the witness about the claim made in her statement relating to the man who stalked her prior to her marriage and asked why this person would be interested in her all these years later. She said she is concerned he is still trying to locate her and will seek her out. He is still connected to the family and attends family events.
The Tribunal asked if there is any other reason she fears harm to her children. She said she fears she is not in a position to work if she returns because of what she has been through. She fears her children will be exposed to the same kind of harms she was exposed to and will be damaged as she is. She fears due to their religion and caste they will be denied high profile jobs in India. Her husband was abused by the church and she fears harm for them for this reason also. He only opened up to her about this years after they married.
Evidence from [Father A]
The witness gave evidence, consistent with his wife, about his current living and work circumstances.
The Tribunal asked him about [Sister A] and how he came to know [Sister A]. He said his wife came into contact with her through a woman she knew who asked if she could help this young girl. This was after their [first child] was born. He was living in Bangalore at the time and was away for work quite a bit. His wife was living in Tuticorin with her parents. She lived with her parents quite a lot when he was away working.
They married in Chennai and lived at their own house in Chennai. From about 2008 they moved to Bangalore and lived there separately from family. His wife was not comfortable speaking the language in Bangalore and would go to stay with her family in 2008-2009. It was in this period that she came into contact with [Sister A]. They discussed adopting her but there were difficulties. He explained the child was born out of wedlock. Her grandmother was in Tuticorin and was taking care of her there. They agreed to take responsibility for the child and all the paperwork was done in Bangalore, after their [first child] was born. After [the birth] and they adopted [Sister A], his wife continued to travel to Tuticorin as she was involved in community work. Later in the hearing the witness clarified that after 2009, his wife did not return to Tuticorin. She remained with him in Bangalore until they came to Australia.
The Tribunal asked what the witness knew of his wife’s family. He said he had heard from her that she experienced a history of abuse. She told him that she was looking for an escape from her family. When the Tribunal pointed out to that this seems to contradict his evidence that she continued going back to Tuticorin after marriage, he made no further comment. The Tribunal asked whether she disclosed any abuse prior to marriage, he said she did not. She only told him after they married. He then referred to having some difficulties in their marital life. He said she never told him anything her grandfather did to her. She told him she was abused and bashed by her father, and that her paternal uncle groomed her and raped her. He said he is aware she had been through a lot in the past. He confirmed that they moved from Chennai to Bangalore and from there to Australia.
The Tribunal asked about the circumstances of sending [Sister A] back to India. He said they had to do that at the time because of their situation. The witness confirmed that they sent [Sister A] back with a person he only knew briefly. He paid for this person’s ticket and asked him to accompany the child. They had no further contact with this man. They sent [Sister A] to a hostel run by nuns. They are in regular touch with her there and send money for her accommodation and education. The witness said he is aware that there has been some contact with [Sister A’s] birth mother recently and she may be interested in making contact. The witness said they are happy to continue to provide financial support for [Sister A] and will take responsibility for her education and will then try and het her married. The witness indicated it was more his wife’s decision than his.
The Tribunal asked the witness what contact he has with his own family. He said he has little contact with them. His upbringing was mostly by the Church. He is not really in contact with his siblings. Regarding contact with his wife’s family he said he does not have regular contact with them since last year. Her father used to pressure him to send money but since February 2022 he has stopped sending money. Her family have little knowledge of the children. They had a little contact when the older [child] was very young but have had no contact with the youngest one. His wife is not in contact with her family.
The Tribunal asked the witness if he returns to India where would he go. He said it would depend on where he got work. He confirmed he had lived in Chennai and Bangalore previously. He said he has never lived or worked in Tuticorin and would have no reason to go there.
The Tribunal asked the witness why his wife returned to India in 2013. He said it was because of her sister’s stillbirth. It was a brief visit. The children remained with him. He is aware she got involved in some problems and was arrested by police and had to leave quickly.
The Tribunal noted that in his own protection visa application he made no claims of his own. He acknowledged that he did not make any claim relating to his own history within the Church. He said when his parents passed away, his aunties took control of his life and arranged his marriage through the church. His own experiences happened when he was very young and he does not think about it. His way of dealing with it was his decision to go into [his occupation].
The Tribunal asked the witness what his fears are for his daughters. He said he does not believe it is safe for them to be exposed to his wife’s family. He is also afraid of harm from his own family. When asked why any of them would seek to make contact, he said maybe not his family but her father is very influential. When asked to elaborate on the kinds of harm he fears from his father in law, he said he fears he will belittle them, and speak badly to them. Because of his girls’ gender, he fears they will be exposed to sexual abuse from family, school and everywhere.
The witness confirmed he has never harmed his children, but he cannot protect then 24/7 from all possible harm. Their religion as Christians and caste, which is classified as ‘backward caste’ will be barriers for them in their lives. Their caste will be mentioned on all their college applications. While acknowledging that they may get access to education, he fears adverse treatment and discrimination they will face from the community generally.
The Tribunal noted that the state of Tamil Nadu is one of the states in India which has laws against corporeal punishment. In response, he said despite this he experienced corporeal punishment in his childhood.
The Tribunal noted briefly at the end of the hearing there were some inconsistencies in their evidence, relating to when the applicant’s mother returned to Tuticorin after their marriage and her disclosures of certain matters to him. It indicated that, if this became more relevant to the decision it would consider putting these matters to them for comment in writing.
Following the hearing, on 20 September 2022 the Tribunal received the following further evidence and information:
·Post hearing submission from applicants’ representative addressing issues and concerns raised at the hearing.
·   Documents relating to 2014 Ministerial Intervention request attaching medical reports, to support [Mother A’s] claim that the 2008 and 2013 hospital reports were submitted at an earlier point in time.
·   Evidence of money transfers evidencing support given by [Father A] and [Mother A] for [Sister A] of around 1000 rupees per month; and transfers made by [Father A] to [Mother A’s] father until 2021.
·   Correspondence between [Mother A] and [Sister A’s] birth mother begun recently, as discussed at the hearing.
·   [Sister A’s] original birth certificate.
On 19 January 2023 the Tribunal invited the applicant to a further hearing on 6 February 2023 to explore an issue relating to the applicant’s’ nationality and country of reference.
On 3 February 2023 the Tribunal received a submission on the issue of the applicants’ nationality and country of reference, and a supplementary statement by [Mother A]. In brief the submissions are:
·The applicants’ births have not to date been registered with the Indian embassy.
·Their parents have concerns about approaching the Indian authorities in Australia to renew their passports and practical difficulties associated with renewal and therefore they cannot register the births with the embassy in Australia.
·While acknowledged that it may be possible for the applicants to apply for citizenship in India pursuant to section 5(1)(d) of the Citizenship Act, there is no certainty that this will occur.
·Assessment of the nationality of the applicants should be informed by the present circumstances, rather than a future, theoretical state of affairs. While the applicants may have a legal right to citizenship, there are barriers for them to avail herself of this right.
·Therefore the applicants are stateless in accordance with Indian citizenship law.
·The applicants fear harm if returned to India as stateless children, and their fears are supported by country information. The applicant’s mother has concerns they will be questioned by authorities on arrival due to their lack of identification documents. Their mother fears that they will not be able to access basic services including education and health care. Concern was expressed that their inability to obtain necessary documents means they will be unable to apply for an Aadhaar card which is entrenched in everyday life and is required for everyday services. Country information is provided to support claims that, despite it not being government policy to refuse education and health services to children without Aadhaar cards, it does occur.
·On this basis it is submitted the applicants face a real risk of being unable to access education and healthcare because they are stateless children.
At the Tribunal hearing on 6 February 2023 the applicants’ parents confirmed that neither of them hold a valid current passport. In 2012 their passports were stolen in a robbery at their home. At that time, they approached the Indian embassy and were issued replacement passports. For reasons unknown to them these passports were valid for only two years, to [2014]. Their previous passports had a longer validity period. After they expired, they have not applied for new passports.
When asked about this, the applicant’s parents told the Tribunal they were asked for reasons for why they held a BVE and to provide a letter from the Department. The Department declined to provide this letter, and they were also reluctant to disclose to the Indian authorities that they had applied for protection in Australia. They stated they tried again after [the Applicant’s] birth to register her but were told the same thing.
The Tribunal asked the applicant’s mother and father, if they had a valid current passport is there any other obstacle to register the applicants’ births, noting that independent information before the Tribunal indicates all that is required is the parents’ passports and a statutory declaration from them to confirm the children have no other nationality or citizenship. They agreed that as the children have no other citizenship there would be no other obstacle. When asked if they would do it, both the applicant’s mother and father said they would not. When asked why not, they said they have fears for the applicants’ safety in India and for this reason they would not apply for their citizenship.
The Tribunal discussed with the applicants’ parents the issue of Aadhaar cards. They confirmed that neither of them have this card themselves because they were not in widespread use prior to their arrival in Australia. The Tribunal noted that the Aadhaar card was introduced in 2009. They said it may have been but it took longer to be rolled out. More recently it has become mandatory for many things. In their day, they had ration cards to access education. The applicant’s father said he does not have his ration card any longer because it is tied to his residence which is now taken over by his brother. They said to apply for their children’s Aadhaar card would also require them to have a passport or Indian birth registration which they don’t have.
Without this card they would be denied education and health services. When asked why they believe this, they said this is what they have heard. Recently their adopted daughter lost her card and she had problems for that reason. The Tribunal noted the country information supporting their claims has been provided in the legal submissions and it would consider this.
The Tribunal discussed with the witnesses concerns it had about the credibility of the claims of historical sexual abuse raised in this application and continued reliance on previous political claims. These included delay as well as contradictions and inconsistencies in some of the evidence it has heard from them and whether the two sets of claims are reconcilable.
On 9 February 2023 the Tribunal received a further submission and supporting documents, requested at the hearing. The following documents were provided:
·Copy of the 2012 police incident report evidencing [Father A’s] report of their passports stolen during a break and enter, and copies attached of [Father A], [Mother A] and their [first child’s] stolen passports.
·Letter from [Passport Business 1] to [Father A] and [Mother A] regarding [the applicant’s sister’s] passport application in 2015.
·Bridging visa grant notification dated 8 September 2016 indicating [Father A] and [Mother A’s] reporting requirements which expected them to present valid passports
·Letter dated 22 March 2019 to the Status Resolution team at Department of Home Affairs outlines reasons why [Father A] and [Mother A] could not produce valid passports , enclosing copy of the passport application for [the Applicant] submitted in February 2019 and letter from [Passport Business 1] advising that [the Applicant] has to obtain birth registration prior to issuing a passport.
The representative’s submits that the evidence of [Father A] and [Mother A], as supported by the over documents, suggests that the Department’s inability to provide them a letter as required about the grounds for the bridging visa may be because it is not authorised to provide anything more than minimal personal details, and is specifically not authorised to disclose whether a person has made a protection visa, citing s336F(3) of the Migration Act. The representative indicated that [Father A] and [Mother A] consented to the Tribunal making enquiries in this regard with the Department.
On 15 February 2023 the Tribunal wrote to the Department to enquire whether it has a policy not to provide letters relating to a non-citizen’s Bridging visa status to Consulates and Embassies where requested for the purposes of passport renewal processes, and if so, the basis for this. If there was no such policy and a letter can be provided, the Tribunal invited information as to how this could be requested.
On 28 April 2023 the Tribunal received the following response to its enquiry: ‘’Persons who are granted a BVE are provided with a visa grant notice which includes the grounds (reason) for grant. BVE holders can request a copy of their visa grant notice from their Status Resolution Officer or through an FOI request.’’
FINDINGS AND REASONS
Nationality
A preliminary issue arising in this matter is determining the ‘receiving country’ for the purposes of the protection criteria. ‘Receiving country’ is defined in s5(1) of the Act as being a country of which the person is a national, determined solely by reference to the law of the relevant country; or if there is no country of nationality, the country of former habitual residence.
For present purposes the Tribunal is satisfied the issue of whether the applicant is a citizen of India effectively answers this question, acknowledging that while ‘nationality’ is not identical to ‘citizenship’, there is overlap between the terms.[1]
[1] VSAB v MIMIA [2006] FCA 239 at [48]–[53].
The applicant was born in Australia to parents who are Indian nationals and the holders of bridging visas. A copy of her NSW Birth Certificate is on the Department file.
Having considered relevant country information, Indian citizenship law and all of the evidence before it relating to the actions of the applicant’s parents to register her birth and submissions of the representative on this issue the Tribunal finds the applicant, as at this time, has not acquired Indian citizenship. Therefore she has no country of nationality and is stateless. The reasons for this conclusion follow.
According to information before the Tribunal, Indian citizenship is not automatic for a child born overseas to Indian citizen parents. The US Department of State report on human rights practices in India, states
By law parents confer citizenship, and birth in the country does not automatically result in citizenship. Any person born in the country on or after January 26, 1950, but before July 1, 1987, obtained Indian citizenship by birth. A child born in the country on or after July 1, 1987, obtained citizenship if either parent was an Indian citizen at the time of the child’s birth. Authorities considered those born in the country on or after December 3, 2004, citizens only if at least one parent was a citizen and the other was not illegally present in the country at the time of the child’s birth. Authorities considered persons born outside the country on or after December 10, 1992, citizens if either parent was a citizen at the time of birth, but authorities did not consider those born outside the country after December 3, 2004, citizens unless their birth was registered at an Indian consulate within one year of the date of birth. Authorities could also confer citizenship through registration under specific categories and via naturalization after residing in the country for 12 years.[2]
[2] India - United States Department of State US Department of State, Country Reports on Human Rights Practices: India 2021, Section 2. G

The 2020 DFAT Country Information Report India also makes reference to the issue of citizenship as follows :
5.49 Citizenship by descent has different rules based on birth date. Citizenship by descent requires registration within one year of birth unless approved by the central government; meeting of parental citizenship thresholds; and, since 2004, a declaration the minor does not hold a passport of another country…..[3]
[3] DFAT Country information Report India 10 December 2020 p67.
The Tribunal had reference to the relevant provisions of Indian citizenship law. Section 4 of the Citizenship Act 1955 (as amended in 2003), provides that a person born outside India on or after 3rd December, 2004 shall not be a citizen of India, unless the parents declare that the minor does not hold passport of another country and his birth is registered at an Indian consulate within one year of the date of birth or with the permission of the Central Government, after the expiry of the said period.[4]
[4] Foreigners Division, Ministry of Home Affairs 8-003a (indiancitizenshiponline.nic.in), see also Citizenship Act, 1955', Government of India, 30 December 1955, Citizenship_Act_1955_16042019.pdf (indiancitizenshiponline.nic.in)
Section 5(4) also states that Any minor child can be registered as a citizen of India, if the Central Government is satisfied there are special circumstances justifying such registration. Each case would be considered on merits.[5]
[5] ibid
The evidence before the Tribunal is that the applicant’s birth has not, to date, been registered at an Indian consulate. Her parents’ evidence is that, despite their efforts to register their daughter’s births, they have been unable to because of the requirement from the Indian authorities that they renew their own passports first. In order to do this, they claim they require a letter from the Department of Home Affairs to explain the basis for their current visa status and the Department would not provide them with this. The issue and steps they have taken were explored with the applicant’s parents at hearing as described above. They followed this up with supporting evidence of the efforts taken to date. The Tribunal also made its own enquiry of the Department to confirm their account and the obstacle they claim to face. The Department’s response, which was brief and not particularly informative, was that a bridging visa grant notice stating the grounds of the grant, would be available and can be obtained by the non citizen from their Status Resolution Officer.
It is not entirely clear to the Tribunal from the Department’s response nor the documents provided by the applicant’s parents demonstrating their past efforts to register the children and apply for passports, that the required information was, or is available to them. The letter provided from [Passport Business 1] to the children’s parents in 2015 does suggest ‘details on which the WE050 was obtained’ was required of them, and the copies of their 2016 BV Grant Notice provided does not appear to indicate the reasons for the BV grant.
The Tribunal accepts that the applicant’s parents are aware of the requirement to register the birth of their children with the consulate and have demonstrated that they have attempted to do so, on at least two separate occasions since their births. It accepts they have been unable to register their children’s births because of the issue of their own lapsed passports. It is not apparent to the Tribunal why, since 2015, the Department has not facilitated the process for them to renew their passports, particularly given the ongoing condition on their Bridging visa to present a valid passport. However, having regard to the Department’s recent response to the Tribunal’s own enquiry, it accepts the explanation for why they have been unable to progress this matter. The Tribunal also notes the testimony pf of applicant’s parents at hearing that even if they were able to obtain their passports, due to their fear of harm for their daughters, they would not register them at the consulate. This does not accord with evidence of having attempted to do so previously, but in the circumstances, appears to be a moot point.
For present purposes, the Tribunal accepts that the applicant’s birth has not been registered with the Indian consulate, and her parents have not provided the required declaration that she does not hold a passport for any other country. On the basis of the above country information, Indian law requires that the applicant’s birth be registered at a consulate within one year of her date of birth to be eligible for citizenship by descent. There is no evidence permission has been sought from the relevant authorities to register her since that time. Therefore the Tribunal finds that the applicant has not acquired citizenship by descent, pursuant to the requirements of s4 of the Citizenship Act 1955.
The Tribunal has considered whether the applicant can access citizenship by registration under s 5(1)(d) of the Citizenship Act [6] which lists “minor children of persons who are citizens of India” as one of the categories of person who may be registered as a citizen and/or s 5(4) which provides that the “Central Government may, if satisfied that there are special circumstances justifying such registration, cause any minor to be registered as a citizen of India”. The Tribunal accepts that the process of registration under either of these sections requires completion of ‘Form IV’ which, among other documentary requirements, requires evidence of the parent’s Indian passport.[7]The Tribunal accepts that at the present time, the applicant’s parents do not have valid passports and claim not to be in possession of birth certificates. The applicant’s birth is also not presently registered in India. For the purposes of this assessment, the Tribunal accepts that the applicant’s potential eligibility for citizenship by registration in India is a matter of speculation, given the documentary obstacles they face.
[6] 'Citizenship Act, 1955', Government of India, 30 December 1955, CISEC96CF15600
[7] 'The Citizenship Rules, 2009', Ministry of Home Affairs, Government of India, 23 July 2009, 20221013141537;
In FER17 v MICMA (2019) 269 FCR 580 the Full Federal Court confirmed that the terms ‘national’ and ‘nationality’ in [s5(1) of] the Act do not extend to someone who is not presently a national but has the capacity to become one. The Court found, on their ordinary and natural meaning, the words ‘national’ and ‘nationality’ refer to a status presently possessed. They do not encompass a status capable of being sought and acquired, but which is not presently held. [8] On the basis of this clear judicial authority the Tribunal is satisfied that the applicant’s potential eligibility for Indian citizenship or capacity to be registered at some point in future, is insufficient to establish nationality under the Act.
[8] (2019) 269 FCR 580 at [64]. At first instance, the Federal Circuit Court found that although the applicant was entitled to seek citizenship of Sri Lanka, according to Sri Lankan law he would not be a citizen of Sri Lanka until his birth was registered in the prescribed manner: FER17 v MIBP [2018] FCCA 3767 at [28].
Therefore, despite the applicant’s declaration in the protection visa application that she is an Indian citizen, in the absence of evidence of an Indian passport or evidence of registration of her birth at an Indian consulate, the Tribunal finds the applicant has not acquired Indian citizenship and therefore is not, at this time, an Indian citizen and therefore she is not a national of India under s5(1) of the Act.
There is no evidence she is a citizen of any other country, and therefore the Tribunal finds she is, at the time of this assessment, stateless and it will proceed to assess her claims for protection on that basis.
What is the applicant’s country of reference, or ‘former habitual residence’
Having found the applicant to be stateless, the next question for determination for the Tribunal is what is her country of former habitual residence’ for the purposes of the ‘receiving country’ in s5(1).
The Tribunal accepts that, as submitted by the representative on 3 February 2023, generally a person’s country of former habitual residence is determined on the basis of a broad factual enquiry, having regard to relevant factors such as the actual and intended length of stay in a state, the purpose of the stay, strength of ties to the state and to any other state (both past and current), and the degree of assimilation into the state.[9] However, in this case the applicant has never lived in any country other than Australia.
[9] Tahiri v MIAC [2012] HCA 61 at [16].
For an applicant who has never lived anywhere but Australia, a dilemma arises in ascertaining the country of former habitual residence in that it is open to find there is either no country of former habitual residence (having regard to the above mentioned relevant factors) or Australia is the only possible relevant country. Either of these conclusions would effectively be fatal to the application for protection, on the basis that there is no country against which to assess her claims or she is not outside her country of former habitual residence).[10]
[10] See for example SZEAM v MIMIA [2005] FMCA 1367
In this situation, having regard to the humanitarian purpose of the refugee definition in s 5H and the criterion in s 36(2)(aa) of the Act, the Tribunal considers it is also open, and more appropriate and logical, to assess the applicant’s claims against the country of nationality of her parents, India, particularly in this case given that is the country specified in the visa application as the country to which the applicant does not want to return and in which it is claimed she would suffer persecution, and where no other relevant country emerges from the facts. The representative has argued this is the most logical determination, as the applicant’s parents are not citizens of any other country and lived the majority of their lives in India. The Tribunal agrees with and accepts the representative’s submissions that the only ties the applicant has to a country other than Australia are to India through her parents.
Therefore, the Tribunal finds the applicant’s country of former habitual residence is India and it will assess her protection claims against India as the receiving country.
Protection claims
It has been submitted on behalf of the applicant that she faces a real chance of persecution on the basis of her membership of a social group, as a young girl in India; as a member of a family group, for reasons of Christian religion and associated caste classification, and her mother’s imputed and actual political opinion. Claims have also been made that the applicant faces harm upon return arising from her status as a stateless child and that she will face harm arising from that circumstance, including denial or difficulty in accessing basic services such as education and healthcare.
The applicant’s claims of gender based harm and sexual abuse at the hands of members of the family of both her mother and father as well as the broader community, including at school, if returned to India, are substantially based on claims that her mother has been subject to a long history of sexual abuse from her family and other men in positions of trust, including at school and the parents therefore fear their daughters are at risk of a similar fate.
It is submitted that the state is not willing or able to provide effective protection and there is nowhere she can go in the country where she will be safe from this harm.
It is submitted that the applicant’s profile relating to her gender, age and membership of her family group, are characteristics that she could not take reasonable steps to modify, as per Section 5J (3)(b) and (c)(i). All of these factors are relevant to her risk profile and should be considered individually and cumulatively.
Before assessing the risk of future harm faced by the applicant for the above reasons, the Tribunal makes the following findings on material facts relevant to the above claims arising from the evidence.
Findings relating to applicant’s gender, age, caste and religion
The Tribunal accepts the applicant is female, born in [year] and is presently [age] years of age.
The applicant’s mother and father claim to be Christian and that they were classified as belonging to the ‘backward class.’ They have not provided any documentary evidence confirming their religion or caste or class classification or certificate before the Department or Tribunal, however, despite this, it is prepared to accept for the purposes of this assessment, that the applicant’s parents are Christian as claimed and were classified as belonging to the ‘backward class’. The Tribunal makes this finding on the basis that there is no contradictory information about these matters, the parents’ have been consistent in their assertions regarding their religion including in their own protection claims and independent information regarding Christians and caste/class classifications in India considered by the Tribunal is not inconsistent with their claims.[11]
[11] See DFAT Country Information Report India December 2020, para 3.147-3.148, p45; also 8 key findings about Christians in India | Pew Research Center; Reservation for Dalit Muslims and Dalit Christians (legalserviceindia.com); and Kelsey Jo Starr and Neha Sahgal., Measuring caste in India | Pew Research Center | Decoded, June 29, 2021, also Nirajdoiphode, Reservation for Dalit Muslims and Dalit Christians (legalserviceindia.com)
By family association, the Tribunal accepts the applicant’s parents’ religion would apply to the applicant on return to India and therefore it accepts that she is Christian. Although the independent information indicates OBC status is separate to the Scheduled Caste and Scheduled Tribe categories and dependent on socio- economic status, and therefore it is not necessarily a given that the applicant would be classified as backward class on the basis of her parents historical classification (particularly given their current education and socio economic status on return to India), for the purposes of this assessment of her protection claims, the Tribunal will accept her claim that, as a member of the minority Christian religious community and child of parents who were classified ‘backward class’ she may be classified as ‘backward class’.
Findings relating to the applicant’s parents background and circumstances in India
The Tribunal makes the following findings on the evidence regarding the applicant’s parents’ background in India. According to their previous passports and evidence, the applicant’s mother was born and raised in Tuticorin, Tamil Nadu, India and her father was born in Chennai, Tamil Nadu, India. On the basis of their written and oral evidence, the Tribunal finds that they married in December 2006, in Chennai, India where the applicant’s father was living, and the applicant’s mother was studying for her [Qualification 1] at the time.
The Tribunal finds that after their marriage the applicant’s parents resided together in Chennai, separately from his family, and later moved to Bangalore, where they also lived separately from their respective families. This is based on the applicant’s father’s evidence to the delegate at interview, and both parents confirmed this in the oral evidence to the Tribunal. The evidence before the Tribunal is that the applicant’s father travelled around India for work during 2007-2008 and in this period the applicant’s mother travelled back and forth to Tuticorin. While there was some inconsistency in the evidence from the mother and father about whether the mother lived in Tuticorin with her family in this period, the Tribunal finds their evidence was consistent that by [year], following the birth of their [first child], they were living in Bangalore, separately from their families, until they came to Australia in 2011.
The Tribunal makes the following findings, for the purposes of the present assessment with regard to the applicant’s [Sister A]. The Tribunal accepts the applicant’s parents adopted [Sister A] in 2009 and she travelled to Australia with them as their daughter in October 2011. It accepts that they obtained a birth certificate for [Sister A] which named them as parents despite not having gone through a formal adoption process. It accepts that they arranged for [Sister A] to return to India in March 2014, and she now resides in a hostel there. It accepts that they pay her fees and costs for the hostel but are open to [Sister A’s] birth mother resuming responsibility for her.
Mother’s claims of history of sexual assault and abuse by family members

100. The applicant’s mother has made claims of an extensive and serious history of sexual abuse and physical and sexual assaults perpetrated by various family members going back to her childhood and up to the time she married, and physical assaults after marriage, as well as other incidents of sexual harassment in public places and sexual abuse by teachers at school. These claims were raised for the first time in this application in a Statement lodged on in June 2020 in the context of the present application. They were not mentioned or referred to in her own protection or earlier student visa applications including merits review processes or subsequent Ministerial intervention requests. There was also no mention of these claims before the Department in the protection visa application of the applicant’s sister (related case 1700464), although the identical Statement was submitted to the Tribunal in the context of that matter on 6 July 2020.
101. In the course of the present review the Tribunal has had the opportunity of hearing oral evidence from the applicant’s mother and father at two in person hearings. Taking into consideration this evidence, together with all the other material before it, the Tribunal is not without some doubts about the reliability of the full extent of her claims relating to this history. While prepared to accept her explanation for the delayed disclosure, given the psychological literature that shows delay is a common characteristic of both child and adult sexual assault, and particularly so in the context of family abuse,[12] the Tribunal finds the new claims are difficult to reconcile with the protection claims advanced previously by the applicant’s mother in her own protection visa application, where she relied on the protective role of her father and claimed to have a close connection with her family even after marriage. There was no reference to family abuse in the 2014 report of the [Agency 2] counsellor despite her disclosures of harassment, maltreatment and sexual abuse in the context of her [professional] work. There were inconsistencies in the oral evidence of the applicant’s mother and father before the Tribunal regarding certain material claims in her written statement (for example, relating to what and when she disclosed to him about previous sexual assaults by family members and time spent after marriage back with her family in Tuticorin). Perhaps most significantly, the Tribunal found difficult to reconcile the applicant’s mother’s return to India to her family in August 2013 with her claims of child sexual assault and fear of family members. It was also troubled by how and why the applicant’s parents’ sent back their adopted daughter [Sister A] to India in 2014 accompanied by a male person unknown to them, to live in a hostel, in light of the claimed history of abuse and fears for the applicant as a young girl in India.
[12] See for example, Australian Law Reform Commission Report 114, Family Violence -A National Legal Response, Chapter 11 Evidence of recent and delayed complaint | ALRC, para 27.296 and references cited therein.

Note: For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 2527

7 June 2023

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