2106332 (Refugee)
[2023] AATA 3888
•8 September 2023
2106332 (Refugee) [2023] AATA 3888 (8 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2106332
COUNTRY OF REFERENCE: India
MEMBER:Mr S Norman
DATE:8 September 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 08 September 2023 at 1:08pm
CATCHWORDS
REFUGEE – protection visa – India – Federal Circuit Court remittal – religion – Sikh – family’s and uncle’s political activity – Indian National Congress Party supporter – fear of harm from the Bharatiya Janata Party (BJP) – no intention of re-engaging in politics – no surrender of rights – fear of the son of a man killed by applicant’s first uncle – reasonableness of internal relocation – failed asylum seeker – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473
CRI028 v The Republic of Nauru [2018] HCA 24
CSO15 v MIBP (2018) 260 FCR 134
MIAC v SZQRB [2013] FCAFC 33
MZYXS v MIAC [2013] FCA 614
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
SZSZM v MIBP [2014] FCA 984Any 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 Immigration and Border Protection on 24 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The applicant who claims to be a citizen of India, applied for the visa on 14 July 2016.
The Department delegate’s decision was lodged with the Tribunal.
A previously constituted Tribunal affirmed the delegate’s decision (on 31 August 2020). That decision was subsequently set aside by Federal Circuit Court order dated [in] May 2021. The Court found the prior Tribunal had committed a jurisdictional error by failing to consider material evidence raised by the applicant at the Department interview, which had been conducted on 24 February 2017; including:
· The applicant clarified that he was not a member of the Indian Congress Party (ICP), rather he was a supporter; and he had
· raised a new claim to also fear harm on the basis that the Bharatiya Janata Party (BJP) had threatened to kill him because the applicant wanted to stand as a candidate for the ICP in upcoming elections
The Tribunal had some difficulties scheduling a hearing for this matter. However, the applicant eventually attended a final Tribunal hearing on 5 September 2023, and where he provided evidence and submissions. The Tribunal was assisted by an interpreter at hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, 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
For the following reasons, the Tribunal has concluded the decision under review should be affirmed.
The Tribunal notes the (unrepresented) applicant failed to respond to two s.424(2) letters issued by the presently constituted Tribunal (dated 24 September 2021 & 17 January 2022).
The applicant’s receiving country:
The applicant lodged a photocopy of the face-page of his Indian passport with the Department (expiry date [in] 2024[1]). The applicant’s passport was issued in [City 1] [in] 2014.[2] Based on this evidence, the Tribunal accepts he is a citizen of India, and that India is his receiving country.
[1] Department – folio 79.
[2] PDF 80 (‘PDF’ refers to the merged Department file on the Tribunal CASEMATE database).
The applicant’s migration history:
The applicant’s migration history (as recorded in the delegate’s decision) follows:
Date Event details 29 February 2016 Tourist (FA-600) visa application lodged offshore 8 March 2016 Tourist visa granted [Date] March 2016 Applicant arrived in Australia 20 April 2016 Permanent Protection visa (XA-866) application lodged onshore 13 June 2106 Tourist visa ceased with Bridging visa (WA-010) in effect 22 June 2016 Permanent Protection visa application invalid 14 July 2016 Permanent Protection visa (XA-866) application lodged onshore 29 July 2016 Bridging visa (WA-010) ceased and Bridging visa (WC-030) in effect
The applicant lawfully departed India from New Delhi airport on [date] March 2016.[3]
[3] PDF – p.80.
The Tribunal’s assessment of material claims:
At the Department interview, the applicant (DOB: [date] – currently [age] years) is recorded as claiming that in Australia, he had (predominately) resided in a Sikh Temple in [Suburb 1]. The applicant also claimed to be able to speak, read and write Punjabi and English.[4]
The applicant’s Sikh religion:
[4] PDF – p.72.
The applicant claimed to fear harm in India due to him being a practising member of a minority religion (Sikh). At the Department interview:
· when asked what he meant by saying he was subject to serious discrimination due to him being a Sikh, the applicant said the Congress party supported the Sikhs. He is recorded as then having nothing more to say
· the applicant also said the Indian authorities did not help anyone in India. When asked about freedom of religion in India, he is recorded as saying it was up to everyone to believe in their own religion
The gist of the following country information was put to the applicant at hearing:
2.4.17 Sikhs generally have freedoms to practice their faith, have access to education and employment and are represented in the political sphere. There are very few reported incidents of recent police mistreatment …
…..
2.4.35 Whilst there are some reported incidents against members of the Sikh community, relative to the size of the Sikh population in India, they are, in general, unlikely to be subject to treatment or discrimination by non-state actors that is sufficiently serious by its nature or repetition to amount to persecution or serious harm … [though, each] case must be considered on its own facts …[5]
[5] UK Home Office, Guidance – Country policy and information noted: Religious minorities and scheduled castes and tribes, India, November 2021, Updated 30 November 2022.
Further country information stated:
3.62 India has a Sikh population of 20.8 million people (2011 census). The growth rate of Sikhism declined since the 2001 census. Sikhism is the dominant religion in the state of Punjab (approximately 16 million people) with significant populations in Haryana (1.2 million), Delhi NCR (570,581), Rajasthan (872,930), Uttar Pradesh (643,500) and Uttarakhand (295,530).
…..
3.67 According to information cited by the Immigration and Refugee Board of Canada (IRB), since the late 1980s, Sikhs living outside Punjab mostly do so safely and integrate economically and socially into their communities. …Sikhs may face difficulties integrating in areas where a Sikh community does not already exist, and may face discriminatory treatment from law enforcement and government officials for wearing the kirpan.
3.68 DFAT assesses Sikhs in India generally face a low level of official and societal discrimination and violence.[6]
[6] DFAT COUNTRY INFORMATION REPORT INDIA 10 December 2020.
The applicant claimed to have been a resident of Jammu and Kashmir in (far north) India (and not where Sikhs constituted a significant population). The area where he lived shared a border with Pakistan. Regarding Jammu and Kashmir, the country information stated:
2.67 On 5 August 2019, the Indian government revoked the ‘special status’ of the state of Jammu and Kashmir (J&K) by abolishing Article 370 of the constitution… With the abolition of Article 370, J&K is now subject to all Indian laws, including in relation to citizenship and land-ownership. This allows, for the first time, Indian citizens to permanently settle, buy land and hold local government jobs in J&K. Local media claims the government wants to change the demographic character of Muslim-majority Kashmir. …
2.68 Around the time of the revocation announcement, Indian authorities deployed thousands of additional security personnel to the region, detained political leaders and activists, restricted public gatherings, and shut down the internet and telephone lines …..
…..
2.71 Terrorism-related activities and fatalities in J&K have been decreasing. In part, analysts attribute this to the lockdown of J&K following the abolition of its special status on 5 August 2019. … Overall, the number of terrorism-related incidents reduced from 598 in 2018 to 369 in 2019.[7]
[7] DFAT COUNTRY INFORMATION REPORT INDIA 10 December 2020.
At hearing, the Tribunal said that based on the country information considered, without more, it did not appear that Sikhs generally, or the applicant in particular, had a real chance of suffering serious or significant harm for reason of his Sikh religion.
The applicant then had referred to other feared harm (discussed below). However, neither the applicant’s claims nor the country information considered, satisfied the Tribunal that Sikhs in general, or the applicant in particular, have a real chance of suffering serious or significant harm in India, for reason of their religion.
The applicant’s family and uncle/s’ political activity:
With his PV application and from the Department interview, the applicant claimed:[8]
· his family were/are staunch supporters of the Indian National Congress Party (‘Congress Party’); and his family and ancestors had been involved with the Congress Party and are active members
· the Congress Party support the Sikh community, and the Bharatiya Janata Party (BJP) support the Hindus
[8] Department – from folio 31.
When his family’s claimed support/activities for the Congress Party was discussed at hearing, the applicant claimed his uncle (the first uncle) shot an opposing (BJP) Party member in 2002 (discussed below), that his family voted for the Congress Party, that he (then [age]-[age] years old) would occasionally tell his school friends to tell their families to vote for the Congress Party (but only in the 2-3 months leading up to the 2014 election). He initially claimed that was all the support his family provided the Congress Party.
Later in the hearing, the applicant recalled that his father had attended some Congress Party rallies with the first uncle in or around 2002 (along with many other Congress Party members); that another uncle (the second uncle) unsuccessfully contested the 2014 election (for the Congress Party); and that the son of the man his first uncle shot in 2002, was supporting one of his own uncles, who also unsuccessfully contested the 2014 election for the BJP.
Regarding the principal political parties in India, the country information stated:
2.56 For much of the post-independence era, the Indian National Congress Party … was in power. However, the Bharatiya Janata Party (BJP) led by Narendra Modi won 282 seats out of 543 elected seats in the 2014 general election, the first time a single party obtained a parliamentary majority since 1984. In May 2019, securing a second election victory, Modi became the first non-Congress prime minister in India to return to power after a full five-year term.
…..
3.84 India has hundreds of political parties registered with the election commission, with a small group registered as national parties. The BJP and its rival the Indian National Congress … party are the largest among them. Since independence, the Congress party has dominated the national movement for ending British rule and has formed most of India’s governments. The party, which has lost successive general elections to BJP since 2014, is currently led by Sonia Gandhi …[9]
[9] DFAT COUNTRY INFORMATION REPORT INDIA 10 December 2020.
The applicant continued:
· He did not know the name of the person his first uncle had shot in 2002
· the applicant also said he had never met his first uncle as he was in hiding from the time the applicant was very young (the shooting incident in 2002, occurred when the applicant was [age]-[age] years of age)
At the hearing, the applicant told the Tribunal the first uncle remained hidden in India for some time after the 2002 shooting, but that later he and his family had settled in [Country 1].
At the Department interview, the applicant continued:
· as an act of revenge, the BJP kidnapped and killed the applicant’s father in 2004 - but no charges were laid against the person/s responsible – and neither were the perpetrators found
· however, from 2002 there was peace in Jammu and Kashmir (as the Congress Party held power)
· the applicant then completed his Year [level] at school in April 2015 - at which time he was [age] years old
At hearing the applicant explained that his own father had never contested any election in India. However, after his father’s death, the father’s family was entitled to and received a pension. That pension had been arranged by the first uncle, while he had remained in hiding. The delegate noted the applicant did not provide any corroborating evidence about his father or first uncle. As well as this pension, the applicant also claimed his immediate family remaining in India (mother and brother), also received income from farming land they leased. The country information stated:
3.91 …The risk of political violence between rival supporters increases during parliamentary and state elections, especially in states where results are tightly contested. However, in general, given the scale of the Indian election process, elections are conducted peacefully. DFAT assesses people who publicly express views critical of the government face a moderate risk of official discrimination. This may include arrest, harassment and prosecution.[10]
[10] DFAT COUNTRY INFORMATION REPORT INDIA 10 December 2020.
The delegate referred to the claim the applicant did not know the name of the person his uncle had murdered. However, the delegate noted the following article from the Hindustan Times on 20 December 2002:
Pampore: An MLA of Jammu and Kashmir''s ruling People’s Democratic Party (PDP) was shot dead in his home village of Konibal on Friday evening. A lone killer put a single bullet through 55-year-old Abdul Aziz Mir''s chest as he met people after Friday prayers at the central mosque in the village. … The killer escaped in the melee immediately after the shooting … An unknown militant outfit called the Save Kashmir Movement has claimed responsibility and threatened a similar fate for everyone who worked to strengthen Indian rule in Kashmir … A veteran National Conference (NC) leader, Mir had switched to the PDP after being denied the NC ticket from Pampore …[11]
[11] CX346767F8716 Terrorist guns down PDP MLA Abdul Aziz Mir, Hindustani Times 20 December 2002.
The applicant was a minor ([age] years) at the time the first uncle shot the BJP party member, and he was a minor at the time his own father was killed ([age] years). The Tribunal accepts the PDP was affiliated with the BJP,[12] and this Hindustan Times article may relate to the applicant’s first uncle (though the applicant was unsure).
[12] BJP-PDP AllianceTimeline Of BJP-PDP Alliance In Jammu And Kashmir (ndtv.com), 19 June 2018, accessed 31 August 2023.
Be that as it may, given the country information considered, the Tribunal accepts that Indian politics may turn violent, particularly during campaigns leading to an election. The Tribunal also accepts it is plausible (and now finds), that the applicant’s father had attended some Congress Party rallies (along with many other Congress Party members) with the first uncle in or around 2002; that the first uncle shot a BJP member in 2002; that the first uncle then ‘disappeared’, eventually travelling to [Country 1] with his family; that the applicant’s father was killed in 2004 (as an act of revenge); and that the first uncle had then assisted in securing the applicant’s family a pension.
The Tribunal also accepts that for around ten years, between 2004-2014, the applicant and his extended family appeared to be able to reside peacefully in Jammu and Kashmir.
The applicant’s political activities/support (including for his second uncle):
The applicant continued:
· He completed [education level] in April 2015
· He said he was not a member of the Congress Party prior to departing India (at hearing he said he was too young to join in 2014 – he also said he was ‘pressured not to join’) – and that the written claim to the contrary in his PV form was not correct
· The Tribunal accepts the applicant was not a member of the Congress Party – and that he was only a supporter
· In 2014, the BJP came to power. The applicant’s family again started to be targeted. Due to him being active, he became a prime target. The applicant was subject to various threats to his life and he had been beaten by goons and locked up. The applicant then escaped India
At the Department interview, the applicant is also recorded as claiming:
· he would be killed if he returned to India by people from the BJP who were involved with his father’s death. He had a lot of enemies in India
· He said this danger had existed since 2014. When asked by the delegate how he might be in danger, he said ‘they’ would wish to kill him – due to his and his family’s political activities
Regarding his claimed political activities, the applicant continued:
· While at secondary school he would speak with other students and advise them to tell their families to vote Sikh (Congress Party). He said he was also promoting the Congress Party and sometimes, at election times, there were BJP people on the road and conflict may arise
· He said there were two occasions when he went to a police station and he was beaten. He said he was also beaten by people from the BJP and told not to support the Congress Party
· the applicant explained he had gone to a police station in 2014 when he was gaining support for the Congress Party and he was tortured. The applicant could not recall the dates when he attended the police station but he thought it may have been in April or May 2014
· he then explained the police asked ‘why are you supporting the Congress Party’ – and he said that was what he meant when he said they were ‘torturing him’
· he had been imprisoned on two occasions. He said false allegations had been made against him. When asked for information about the false allegations, the applicant repeated that he had been tortured by them saying (words to the effect) ‘I’ve done this, I’ve done that’. When then asked to explain exactly what had been alleged against him, he is recorded as saying ‘they said he was only a kid and should not be involved in this’. The applicant then said he was released
· The applicant said he had lodged a First Incident Report (FIR) with the police (relating to an attack on him), but he did not have a copy of the FIR and no further action had been taken by the police
In support of the PV, the applicant said that as a consequence of his and his family’s activities, there had been animosity between the applicant’s family and the BJP (who were also said to want to make Hindu the leading religion and did not want to give other communities equality), with regular attacks against his family and threats to their life.
When discussed at hearing what the ‘regular attacks’ on his family involved, the applicant claimed (principally) the family were told he would be killed by the son of the man his first uncle had killed (though there was no evidence the applicant’s younger brother – [number] years younger than the applicant – was ever threatened in this manner).
When also discussed at hearing, the now [age] year old applicant claimed that he (then [age]-[age] years old) would occasionally tell his school friends to tell their families to vote for the Congress Party (but only in the 2-3 months leading to the 2014 election). The Tribunal accepts this is correct. However, based on the subsequent evidence provided, the Tribunal does not accept the applicant’s immediate family (with the exception of the death of his father in 2004), were subject to regular, or any, attacks as was claimed.
Next, the applicant later recalled that he was threatened by supporters of the BJP on two occasions, and on one of these occasions he was ‘pushed around’ (no medical attention was subsequently needed). He reported both incidents to the police. He was never subject to other serious or significant harm either by the BJP or the police. The police did say ‘he was only a kid and should not be involved in this’ – being in the lead up to the 2014 election campaign (these elections were held between April/May 2014[13]). However, no arrests or charges were ever laid or threatened, either on the applicant or his assailants. The Tribunal accepts this is correct.
[13] ‘India’s 2014 elections: the BJP’s victory’, India’s 2014 elections on JSTOR, accessed 5 September 2023.
The Tribunal then noted the applicant continued to reside peacefully in his own home (in Jammu and Kashmir) and he also had attended his usual school, from just after the April/May 2014 election, until he departed Jammu and Kashmir in or around April 2015.
After some discussion, the Tribunal understands the applicant then said a second uncle unsuccessfully contested the 2014 election (for the Congress Party); and that the son of the man his first uncle shot in 2002 was supporting one of his own uncles who also unsuccessfully contested the 2014 election for the BJP.
The Tribunal acknowledges these events occurred nine years prior to the Tribunal hearing, and at which time the applicant was a minor. However, they did constitute significant events in the applicant’s life, and they had allegedly caused him to ‘flee’ Jammu and Kashmir.
That being said, I understand the applicant claimed to have supported the second uncle (which was why he told his school friends to tell their families to vote for the Congress Party), but he did not otherwise participate in the election campaign. His second uncle (along with other Congress Party supporters) had ‘got into a fight’ with the son (the ‘son’) of the man his first uncle shot in 2002 (and with other BJP supporters).
The applicant also later recalled the ‘son’ had threatened the applicant, and after the applicant departed Jammu and Kashmir he had told the applicant’s mother he would kill the applicant the next time he saw him. The applicant also remembered this ‘son’ had ‘teased’ the applicant after the BJP won the 2014 election. The applicant also said that sometime after the second uncle ‘lost’ the 2014 election, the applicant and his family had conflict with this second uncle and had little if any ongoing contact with him. Though the applicant understands that sometime later the second uncle may have departed India.
After discussing same at hearing, and notwithstanding the apparently recent introduction of the new evidence about the second uncle and the son of the man the first uncle shot in 2002 (from the unrepresented applicant), the Tribunal will accept the second uncle unsuccessfully contested the 2014 election on behalf of the Congress Party, and that sometime later the second uncle departed India.
The Tribunal will also accept there may have been some very limited teasing of the applicant by the aforementioned ‘son’ (who was about [number] years older than the applicant). Though, there was no incident or other serious or substantial issue with the ‘son’ (or anyone else) after the April/May 2014 election campaign had been finalised. That is why between 2004-May 2014, and May 2014 and April 2015, neither the applicant nor any immediate (or possibly even extended) family member, took any steps to protect or otherwise hide himself. The Tribunal will also accept that very shortly after April 2015 (at which time the applicant finished his secondary education), the applicant travelled around India until he departed for Australia in March 2016. The Tribunal therefore does not accept the applicant’s departure from Jammu and Kashmir after April 2015, had anything to do with his fear of the ‘son’ or anyone else.
Furthermore, and given the adverse credibility findings herein, the Tribunal also does not accept the applicant’s family were warned by the son of the man whose father was shot by the first uncle, at any time. Neither does the Tribunal accept the applicant has any risk of being killed by the people from the BJP who may have been involved in the death of his father.
Next, at the Department interview (24 February 2017) the applicant claimed his brother ‘had a [recent] problem and his mother is tortured about the applicant’s whereabouts’ (in his PV form, he said he was able to contact his family members outside Australia by telephone[14]).
[14] Department – folio 54; or 22.
At hearing, and when asked what he discussed with family members in Jammu and Kashmir (including his mother, now [age]-year-old brother who was studying, and some uncles, aunts and cousins) in the 4-5 years prior to the Tribunal hearing (held on 5 September 2023), the applicant said (words to the effect), their health and well-being etc. When the Tribunal then specifically referred to any problems the brother may have experienced in 2017, the applicant did not indicate there were problems. The Tribunal now does not accept the applicant’s brother or mother have been harmed, harassed or even questioned about the applicant, in any way that might indicate he is a person in respect of whom protection obligations arise.
Next, at the Department interview the applicant is recorded as claiming that prior to his departure from India, he had wanted to contest an election in India but he was told not to. At hearing, the (now [age] year old) applicant told the Tribunal he may stand as a candidate for the Congress Party in a future election in India. As at 2023, the Tribunal understands the Congress Party rule four Indian States (Himachal Pradesh, Chhattisgarh, Rajasthan and Karnataka[15]). Further, the (still opposition) ‘Congress Party won 52 seats in 2019, after having been reduced to 44 seats in 2014’.[16]
[15] Which are the States Indian National Congress Ruling in 2023 - Government (mapsofindia.com), accessed 31 August 2023.
[16] DFAT Country Information Report India, 10 December 2020, at [2.56].
However, and when discussed near the commencement of the hearing, the Tribunal notes the applicant had not claimed to have engaged in any political activities in the approximately one year he had lived in India prior to his departure for Australia in March 2016; and neither had he engaged in any political activity since arriving in Australia (when asked, he said that in Australia he principally worked, and he engaged in some specified physical pursuits). The Tribunal accepts this to be correct.
When the Tribunal then suggested it may find he was no longer interested in politics and should he return to India, he would focus (possibly solely) on finding gainful employment, the applicant said he had wished to join the Congress Party when he was in India but he was too young. He also said he feared the aforementioned ‘son’ (the Tribunal has discussed the ‘son’ above).
In SZSZM v MIBP, the Federal Court accepted the submission that the principles in S395 only apply to modifications or suggested modifications which involve the surrender of the rights protected by the Convention.[17] Based on the accepted evidence, the Tribunal does not accept the applicant would wish to ‘contest an election’ or otherwise re-engage in politics, should he return to India. I am satisfied he would instead focus on furthering his career and or assisting his family (to whom he remits money from time to time).
[17] SZSZM v MIBP [2014] FCA 984.
The Tribunal is therefore satisfied the applicant would not need to surrender his rights should he return to India – as I am sufficiently satisfied he has no real interest in re-engaging in political activities.
Based on the accepted evidence, the Tribunal finds the applicant does not have a real chance of suffering serious harm in his home area of Jammu and Kashmir in India.
Complementary protection & relocation within India:
That said, and with the exception of the above finding that the applicant has no intention of re-engaging in politics should he return to India, the Tribunal proposes to ask ‘what if I am wrong?’ and assess whether the applicant may safely and reasonably relocate within India.
A ‘decision maker’ may be satisfied that an applicant is a person to whom Australia has protection obligations because the ‘decision maker’ 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 (the applicant) will suffer significant harm (see s.36(2)(aa) and s.36(2A) and of the Migration Act).
In MIAC v SZQRB [2013] FCAFC 33 (20 March 2013), Lander and Gordon JJ, stated (in part) ‘In our opinion, the [real risk] test is as for s.36(2)(a) [of the Act] … is there a real chance that SZQRB will suffer significant harm’. [246]
For the purposes of this assessment, the Tribunal will find the applicant has a real chance of suffering significant harm in his home region of Jammu and Kashmir, for reason of his family’s political support of the Congress Party. Based on the country evidence considered, and particularly during election campaigns, that harm would constitute cruel or inhuman treatment or punishment; and there would be an intention to cause this harm to the applicant personally.
Can the applicant safely relocate within India:
Under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
That being said, the applicant explained that from shortly after April 2015 until he departed India in March 2016, he did not live at his usual home (in Jammu and Kashmir) – the applicant said he finished his secondary education in Jammu and Kashmir in April 2015.
The applicant also said he had then ‘moved from place to place every 15 days’ or so after leaving Jammu and Kashmir, and he had moved around by train. He explained he travelled to Delhi, Calcutta and the Punjab - he lived in Temples all over India, including Amritsar, Delhi and Calcutta. He was unable to remember any of the specific addresses he had lived at during this time.
The delegate noted the applicant said he was threatened and tortured in each location so he had to continue to move. The Tribunal notes the applicant claimed to have been able to depart India lawfully (from New Delhi) on a passport in his own name.[18] When then asked why he was unable to safely relocate to another part of India, he had said it was because he was always located by the BJP and he feared he would be tortured and/or killed.
[18] Department – folio 53.
The Tribunal understands this claim contradicted the evidence in the PV form that the (unrepresented) applicant had resided in his usual home in Jammu and Kashmir up to the time he departed India.[19] That said, the Tribunal also understands that a risk may not be properly regarded as localised if relocation requires an applicant to live ‘discreetly’ to avoid persecution: SZFDV v MIAC (2007) 233 CLR 51; Appellant S395/2002 v MIMA (2003) 216 CLR 473. Though as set out above, the Tribunal remains not satisfied the applicant would wish to re-engage in politics should he return to India.
[19] Department – folio 18; and in what appeared to be another prepared and lodged PV form, at folio 50.
Next, the gist of the following country was put to the applicant at hearing:
5.29 India has a long history of internal migration; however, in practice, it remains predominantly intra-state rather than interstate. … [20]
And:
3.62 India has a Sikh population of 20.8 million people (2011 census). … Sikhism is the dominant religion in the state of Punjab (approximately 16 million people) with significant populations in Haryana (1.2 million), Delhi NCR (570,581), Rajasthan (872,930), Uttar Pradesh (643,500) and Uttarakhand (295,530).
…..3.67 … Sikhs may face difficulties integrating in areas where a Sikh community does not already exist, and may face discriminatory treatment from law enforcement and government officials for wearing the kirpan.[21]
however:
3.67 … Sikhs living outside Punjab mostly do so safely and integrate economically and socially into their communities. ….
3.68 DFAT assesses Sikhs in India generally face a low level of official and societal discrimination and violence.[22]
[20] DFAT Country Information Report India, 10 December 2020.
[21] DFAT Country Information Report India, 10 December 2020.
[22] DFAT Country Information Report India, 10 December 2020.
Furthermore, the country information stated that in India, ‘Tracking and surveillance systems appeared to be limited’,[23] and:
5.39 … India does not have a centralised registration system in place to enable the police to check the whereabouts of inhabitants in their own state, let alone in any of the other states or union territories …[24]
And:
According to some reports, if a person seeks to escape the attention of local police and is not of interest to central authorities, then internal relocation is feasible. Only hard-core militants appear to be of interest to central Indian authorities. According to a US government report, holding pro-Khalistani views would not make someone a high-profile militant …[25]
[23] UK Home Office, Country Policy and Information Note India: Internal relocation Version 1.0 January 2019.
[24] DFAT COUNTRY INFORMATION REPORT, INDIA, 10 December 2020.
[25] 'India: Feasibility of Relocation of Sikhs and Members of the Shiromani Akali Dal (Mann) Party', Law Library of Congress, 1 June 2018, p.1, 20200923180700.
Further country information stated:
5.11 DFAT understands if a person of interest is being sought by another state, the states would work together in securing the arrest of that person. There is no state extradition requirement. DFAT understands state police do not have sophisticated online databases to track offenders; such work would be done manually. In general, there is a good degree of cooperation between state police services.[26]
[26] DFAT COUNTRY INFORMATION REPORT, INDIA, 10 December 2020.
As noted above, the applicant said that after departing Jammu and Kashmir shortly after April 2015, he had to move from place to place, never staying in the one place more than two or three weeks (which he agreed to at hearing). He said he was threatened and tortured in each location so he had to continue to move. He said he moved because he was always located by the BJP and he feared he would be tortured and/or killed.
However, the threat to the applicant appeared to have allegedly been from principally if not solely the son of the man his first uncle had killed in 2002 (though no harm came to the applicant from just after the April/May 2014 election until he departed Jammu and Kashmir in April 2015 – and neither did he seek to protect or otherwise take steps to hide himself during this period). Further, based on the accepted evidence, the Tribunal was not satisfied there was any deterioration of this relationship prior to or after, the applicant departed Jammu and Kashmir shortly after April 2015.
The Tribunal then said it also did not appear the applicant was sufficiently important (to the BJP and/or the son of the man his first uncle had shot in 2002) to use any resources to even attempt to trace him within India, and or that there was any real basis the aforementioned ‘son’, or his associates including from the BJP, could trace the applicant even if they had wished to. The applicant did refer to the ‘son’ warning his mother that the applicant would be killed by the ‘son’ if he was located, though the Tribunal has rejected this claim above.
Therefore, and given the accepted evidence herein, the Tribunal is not satisfied this is plausible, and I now find it to be false. More importantly, neither does the Tribunal accept the ‘son’ or his associates, could even trace the applicant should he safely relocate within India, outside Jammu Kashmir, and to an area where there is a sizeable Sikh community. The Tribunal also understands the applicant could safely access such an area without passing through Jammu and Kashmir.
Also, the Tribunal does not accept the applicant was tortured and or otherwise subject to any harm, during the time he travelled around India between April 2015 and March 2016. Neither am I satisfied he was subject to a real chance of suffering significant (or serious) harm for any reason during this period.
Next, the applicant had been recorded as saying that should he return to India he would return to his home in Jammu and Kashmir where his mother lived – though the Tribunal notes he had not principally resided there since April 2015, being approximately one year prior to his departure from India. However, the Tribunal understands it can assess whether it is safe and reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. And while identifying a home area or region may help in determining where a person will return or be returned to, the question is what place (or places) the applicant is likely to return to (as per CSO15 v MIBP (2018) 260 FCR 134 and CRI028 v The Republic of Nauru [2018] HCA 24).
In the present case, and given the applicant had not resided in Jammu and Kashmir since approximately April 2015, the Tribunal is not satisfied the applicant would return there. I am satisfied his younger brother could continue to assist their mother, and the applicant would focus on finding employment and continue to provide the apparently irregular remittances he provides to his mother from Australia (she also receives money from her husband’s pension and the farming land she leases). I am therefore satisfied he would likely return to any of the locations he had travelled to between April 2015 and May 2016, or to any area within India and outside Jammu and Kashmir, where there is an established Sikh community.
Accordingly, the Tribunal is satisfied the applicant could safely return to an area within India and outside Jammu and Kashmir, and where he would not have a real chance of suffering significant (or serious) harm.
Can the applicant reasonably relocate within India:
As noted above, the Tribunal understands that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. The country information stated:
5.31 According to the World Bank, factors that may limit interstate relocation include non-portability of entitlements, preferential norms in educational institutions, and domicile requirements for state government jobs. Other factors, some historical, that limit mobility/interstate migration include: the prevalence of the caste system; traditional values; the diversity of language and culture; exploitation and political exclusion; lack of education; limited access to financial services and resources; and predominance of agriculture and semi-feudal land relations in India.
5.32 Inability to access social protection is a further deterrent. …
5.33 The absence of informal social networks that would normally assist with accommodation, employment and informal social protection may also limit relocation. Where local language and culture is different from region of origin, Indian nationals may also face harassment and political exclusion. Multiple sources told DFAT relocation in India is not straightforward, and many cultural, socio-economic and gender-based obstacles, in addition to language differences, prevail.[27]
[27] DFAT Country Information Report India, 10 December 2020.
Regarding health, the country information stated:
2.32 India’s health system faces a number of challenges including a diverse health profile, an acute shortage of infrastructure and a lack of skilled health sector workers. …a large disparity exists between the services and health outcomes of each state, and between urban and rural areas……[28]
[28] DFAT Country Information Report India, 10 December 2020.
Regarding the economy, the country information stated:
2.23 India’s economy is of global importance. It has been one of the world’s fastest-growing large economies in recent years – although 2019 marked a slowdown… Boosting private sector investment and FDI has been a key focus for the Modi government in its first and second term, and it is charting an ambitious economic reform agenda. This has resulted in India rising in the World Bank’s Ease of Doing Business rankings from 130 in 2016 to 63 in 2020.
2.24 India’s economy has been impacted sharply by the COVID-19 pandemic, resulting in it entering its first ever technical recession in its second quarter of FY2020-21. Its recovery continues to gather pace, however, and is widely expected to return to sustained levels of growth from 2021 onwards ….
2.25 The Indian Government has passed three fiscal stimulus packages in response to COVID-19. ….
2.26 Unemployment rates pre-COVID-19 were high, particularly among the youth. …[29]
And:
2.49 The vast majority of working people are employed in the informal sector. Individuals in this sector experience low job and income security, as well as lower coverage by social protection systems and employment regulation. … many of those who are more educated, particularly graduates, cannot find suitable employment. In 2019, graduates aged 20-24 years reported an unemployment rate of over 60 per cent, with non-graduates in this age-group reporting 37 per cent unemployment.[30]
[29] DFAT Country Information Report India, 10 December 2020.
[30] DFAT Country Information Report India, 10 December 2020.
Regarding corruption, the country information stated:
2.29 Prime Minister Modi has publicly expressed a zero tolerance policy for corruption in government and punitive action has been taken against bureaucrats in departments such as revenue, income tax and customs. Mainstream media and opposition parties, however, have criticised a perceived lack of commitment to take action on high-profile alleged graft cases.[31]
[31] DFAT Country Information Report India, 10 December 2020.
Regarding security, the country information stated:
2.64 The security situation in India varies over time and from place to place due to its size and diversity. Civil unrest, including violent rioting, is not uncommon. Drivers of civil unrest are complex and varied and may include: tensions between different religious, social and ethnic communities … insurgencies, terrorist attacks or protests motivated by ideological or political objectives; tensions along disputed border areas; and tensions within communities over issues such as land ownership and marriage-related disputes.[32]
[32] DFAT Country Information Report India, 10 December 2020.
When discussed at hearing, the applicant did not claim to fear that relocating within India would be unreasonable. He only feared relocation for the reasons discussed above (and about which the Tribunal has already made findings). He also said his father was deceased and he needed to assist his sick mother.
The Tribunal notes the Federal Court in MZYXS[33] has accepted the ‘issues which arise when considering the reasonableness of relocation in the refugee context are the same which arise in the complementary protection context.’[34] The Tribunal understands this guidance may also assist in assessing a post 16 December 2014, visa application. That said, the Tribunal understands each case still needs to be considered according to its merits.
[33] MZYXS v MIAC [2013] FCA 614 (21 June 2013), Marshall J.
[34] MZYXS [37].
The Tribunal also notes that what may be reasonable need not be considered solely based on what an applicant may be able to access in a first world society. Regarding whether relocation was reasonable, the Tribunal understands that Gageler J’s[35]reference to the ‘simple lowering of living standards or worsening of economic status’, without more, would not necessarily render relocation unreasonable, remains correct.
[35] MINISTER FOR IMMIGRATION AND BORDER PROTECTION V SZSCA [2014] HCA 45 (12 NOVEMBER 2014), SEE GAGELER J (IN DISSENT) AT [44].
However in the present case, the Tribunal accepts the present applicant was able to have resided in various areas around India, in the 12 months prior to his departing in March 2016 (principally residing in Sikh Temples). He appeared to have had access to residence and the ability to work and or otherwise access sustenance in his Indian travels. He also appeared to have been able to establish himself in Australia (again often residing in a Sikh Temple), a country with a language, history and culture substantially different to his own. There does not appear to be any reason he could not locate work commensurate with any of his skills in India, by again utilising networks within the Sikh community in India (as he was able to do when seeking accommodation in Sikh Temples in India). There did not appear to be any other material basis the applicant would not be able to reasonably relocate within India, should he return.
Accordingly, the Tribunal is satisfied it is reasonable for the applicant to safely relocate within India.
Failed asylum seeker:
As noted at hearing, the country information stated:
5.39 DFAT is not aware of any evidence of mistreatment of returnees, including failed asylum seekers, by Indian authorities … The Department of Home Affairs is required to notify Indian authorities prior to the arrival of escorted removals from Australia but does not track returnees after their arrival in India. Home Affairs does not routinely notify Indian authorities of unescorted returns and removals. UK Home Office reporting notes tracking and surveillance systems appear limited.[36]
[36] DFAT COUNTRY INFORMATION REPORT, INDIA, 10 December 2020.
When discussed at hearing, the applicant did not claim to fear harm in India for any reason other than that which is discussed above. After considering the accepted evidence and the country information, the Tribunal is not satisfied the applicant would suffer serious or significant harm in India, if returned as a failed asylum seeker.
For the reasons given above, the Tribunal is not satisfied 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 considered the alternative criterion in s.36(2)(aa). For the same reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion 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.
Mr S Norman
MemberATTACHMENT - 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.
…
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