2108825 (Refugee)

2108825 (Refugee) [2023] AATA 1778 (23 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Wimaleswaran Mylvaganam
CASE NUMBER:  2108825
COUNTRY OF REFERENCE:                   India
MEMBER:Katherine Harvey
DATE:23 February 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 February 2023 at 8:38am

CATCHWORDS
REFUGEE – protection visa – India – political opinion – supporter of the Khalistan Movement and Shiromani Akali Dal Amritsar – religion – Sikh – arrested by police – fear of harm by police and Indian security forces – insufficient evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 411, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 June 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a citizen of the Republic of India (India) and is [age] years old. He was born in [Village 1], Punjab, India. He first came to Australia as the holder of a dependent student visa [in] June 2009.
On 23 March 2018, the applicant applied for a protection visa.
On 29 June 2021, a delegate of the Minister refused to grant the visa.
On 8 July 2021, the applicant applied for a review of that decision. He provided the Tribunal with a copy of the delegate’s decision. The Tribunal is satisfied that the decision is reviewable under s 411(1)(c) of the Act.
On 26 October 2022, the Tribunal wrote to the applicant advising that it had considered all of the material before it relating to the application but was unable to make a favourable decision on that information alone.
The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 30 November 2022 and to provide all documents he intended to rely on to support his case by 23 November 2022.
On 7 November 2022, the applicant advised that he would attend the hearing.
On 21 November 2022, the applicant provided a pre-hearing submission.
On 25 November 2022, the applicant advised that he would not attend the hearing.
On 28 November 2022, the applicant confirmed that he would not attend the hearing and that he wished the Tribunal to make a decision on the papers before it.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION
The issue in this case is whether the applicant has a well-founded fear of persecution for a refugee nexus reason, or he is owed complementary protection, or he is a member of the same family unit as a non-citizen who is a refugee or is owed complementary protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant’s personal details are set out in his application for protection. He is [age] years old and was born in [Village 1], Punjab, India. At the time he made his application, he stated that he was in a de facto relationship with [named] and that he did not have any children.
The applicant provided details about his late father, his mother, and two brothers in India. He claimed that he had visited [Country 1] from [August] 2004 until [October] 2007 on a work permit.
Country of reference
The applicant claims he was born in [Village 1], Punjab, India and is a citizen of India. He provided a copy of the biodata page from his Indian passport with his application.
The Tribunal is satisfied that the applicant is a citizen of India and that India is the receiving country for the purpose of s 36(2)(aa) of the Act.
What are the applicant’s claims?
The applicant’s claims are set out in the application for a protection visa.
He claimed that he is a Sikh and a very strong follower of Shiromani Akali Dal Amritsar under the leadership of Shri Simranjit Singh Mann.
He claimed that his father was also a supporter of Mr Mann’s party, that he was involved in a protest in 2000 against the government, that the police reacted by attacking innocent protesters and his father suffered an injury and died in October 2000.
He claimed that Mr Mann has been arrested or detained more than 30 times after resigning his position as Commandant of the central Industrial Security Force in 1984 after the attack on the Golden Temple.
He claimed that in 1989 Mann was released and all charges dropped after spending five years in jail and in November 1989 he was elected to Parliament and has been fighting for an independent state.
He claimed that Sikhs have been persecuted over the centuries in India and that the 1984 anti-Sikh riots were catastrophic. The government reported 2700 Sikh deaths but human rights organisations and newspapers report the death toll to be 10,000 to 17,000.
He claimed that the Akal Takht, the governing religious body of Sikhism, considers the killings to be a genocide.
He claimed that the widespread violence could not take place without police help.
He claimed that when he was at University in the Punjab he was involved in the student movement that supported a separate state and the Khalistan Movement. He claimed that he attended rallies and meetings and tried to recruit other students to join.
He claimed that he did not complete his degree and he went to [Country 1] from 2004 to 2007.
He claimed that he returned to India in 2008 and recommenced his support for the Khalistan Movement. He claimed he was a very active member and attended rallies and meetings.
He claimed he came to Australia in June 2009 and returned to Punjab in October 2010 as he received news that the Movement was under great stress and needed its supporters to rally against its opponents. He claims that he had the support of his mentor Mr Mann.
He claimed that the homes of members were being raided and they were being imprisoned.
He claimed that Mr Mann told him that he could not guarantee his safety and he urged him to return to Australia, which he did in December 2010.
He claimed that many of the Movement’s members were gunned down by the police.
He claimed that he cannot return to Punjab as he will be persecuted for his political opinion as a supporter of the Khalistan Movement by the rival Sikh group and political supporters of Congress and BJP. He claimed the police will arrest him and he cannot rely on the authorities to guarantee his rights as a citizen.
He claimed that he will face significant harm from the Congress and BJP members and supporters, Dera Sacha Sauda supporters and also the police because of his imputed political opinion and religion.
The applicant provided four pages headed ‘country information’, which he had compiled.
On 13 April 2021, the applicant provided:
·   a copy of a letter from [name], Political & Media [Advisor], Shiromani Akali Dal dated [in] May 2018
·   an untranslated and unverified copy of a party identification card, and
·   a copy of a voter registration card issued in the applicant’s name by Sikhs for Justice, [Country].
On 21 November 2022, the applicant provided a six-page submission detailing how he disagreed with the delegate’s findings.
He claimed that he is a Sikh who is a strong and ardent supporter of Shiromani Akali Dal Amritsar under the leadership of Mr Mann and of the Khalistan Movement.
He claimed that even though he had been living in Australia since 2010, he continued his support of the Movement.
He claimed that he cannot return to Punjab as he will suffer persecution because of his political opinion.
He claimed that he fears harm from the police, Indian security forces, Congress Party supporters, BJP supporters and Dera Sacha Sauda (DSS), who view people like him as terrorists.
He claimed that if the delegate had issues with the authenticity of the documents he provided, the delegate should have had them vetted.
He claimed that the delegate did not have evidence for finding his testimony unconvincing and implausible.
He claimed that he did travel to [Country 1] in 2004 because of fear and that just because nothing happened in the past did not mean that nothing would happen in the future.
He claimed that he was arrested by the police in 2008 and 2009 and the fact that he was released and not charged on both occasions does not mean that it did not happen or that it would not happen in the future.
He claimed that it was his duty to return to India as a loyal party supporter and he had an inherent fear of being arrested, assaulted and detained and he left when he was told that his safety could not be guaranteed.
The applicant also provided news reports that he claimed affirmed and confirmed his fear of persecution. The headings in the nine-page document are:
·   ‘Tension grips Amritsar after death of Shiv Sena leader Sudhir Suri’, The Weekly Magazine, 5 November 2022
·   ‘Sikh preacher’ Amritpal Singh briefly put under house arrest’, The Indian Express, 6 November 2022
·   In mainland Punjab, since 2015, its terror activities are seeing a revival. 15 November 2022 (no title and no publisher)
·   ‘Bid to disrupt harmony; BJP schools SAD(A) Chief Simranjit Mann over his comments on J&K’ (no date or publisher listed)
·   ‘Alarm bells for Punjab as pro-Khalistan party SAD (Amritsar)’s Simranjit Singh Mann wins Lok Sabha seat on Bhagwant Mann’s home turf in Sangrur’, The Times of India (no date), and
·   Bathinda: The Shiromani Akali Dal (Amritsar) president Simranjit Singh Mann, along with party leaders, activists was taken into custody the moment he completed his address outside the grain market of Bargari town of Faridkot on Thursday afternoon. (no publisher, no date)
Assessment of claims and evidence
The Tribunal has before it a highly generalised claim in which the applicant claims that he is a Sikh and a political supporter of Shiromani Akali Dal Amritsar under the leadership of Mr Mann and of the Khalistan Movement and that he fears harm from the police, Indian security forces, Congress Party supporters, BJP supporters and Dera Sacha Sauda (DSS) because of his political opinion and his religion. The Tribunal accepts that the applicant is a Sikh.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have the responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[1]
[1] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169–70.
The Tribunal wrote to the applicant advising that it had considered all of the material before it relating to the application but was unable to make a favourable decision on that information alone.
In his 21 November 2022 submission to the Tribunal, the applicant did not provide any additional evidence to support his claims that he travelled to [Country 1] in 2004 in fear that he would be arrested by police, that he was arrested by the police in 2008 and 2009, and that he feared the police and members / supporters from Congress Party, BJP and the DSS. He did not provide further particulars about his specific claims and he did not provide corroborative evidence to support his claim that he holds a well-founded fear of persecution for a refugee nexus reason. Nor did he provide corroborative evidence to support his claim that there are substantial grounds for believing that as a necessary and foreseeable consequence of removal to India there is a real risk he will suffer significant harm.
The applicant provided media reports that he claimed affirmed and confirmed his fear of persecution but he did not explain how the reports did this. The reports dealt with the death of Shiv Sena leader Sudhir Suri and the arrest of Sandeep Singh; the house arrest of Sikh preacher Amritpal Singh; Pakistan intensifying its activities to link Khalistan terrorism to Kashmir-centric terror groups; BJP criticising comments by Simranjit Singh Mann about the condition of Jammu and Kashmir; the election of Simranjit Singh Mann to the Parliament of India’s Lok Sabha (House of the People); and Simranjit Singh Mann and party leaders being taken into custody. The applicant did not explain the relevance of the reports to his claims.
It is the responsibility of the applicant to provide sufficient evidence to establish his claim. The applicant’s decision not to accept the Tribunal’s invitation to attend a hearing meant that the Tribunal was unable to take oral testimony. The Tribunal has relied on the documentation on file, the applicant’s submission of 21 November 2022 and the country information.
The applicant has not provided any collaborative evidence to support his claim that his father was a supporter of Shiromani Akali Dal Amritsar who was involved in a protest in 2000 against the government, suffered injury and died in October 2000. Based on the information before it, the Tribunal does not accept that the applicant’s father was a supporter of Shiromani Akali Dal Amritsar, that he was involved in protests, injured and died in October 2000.
Based on the copy of the applicant’s passport provided, the Tribunal accepts that the applicant was issued five visas to work in [Country 1] from [August] 2004 until [August] 2007. Based on the information in the visas, from 16 September 2004, the applicant was employed as a [occupation] by [employer]. The applicant did not provide any corroborative evidence that he travelled to [Country 1] in fear that he would be arrested by the police. Based on the information before it, the Tribunal accepts that the applicant travelled to [Country 1] for work. The Tribunal is not satisfied that the applicant travelled to [Country 1] in fear that he would be arrested by the police.
The applicant claimed that he attended university and was involved in university student movements that supported a separate state and the Khalistan Movement. He claimed that he attended rallies and meetings and was involved in try to recruit students to join the Movement. He claimed that he recommenced his support for the Khalistan Movement in 2008 when he returned to India and that he was a very active member and got involved in attending rallies and meetings. The applicant did not provide any corroborative evidence to support his claim that he attended university or that he was and is an active supporter a separate state and the Khalistan Movement. The Tribunal is not satisfied that the applicant was or is an active supporter of a separate state and the Khalistan Movement.
The applicant claimed to be a strong supporter of Shiromani Akali Dal Amritsar under the leadership of Mr Mann and provided a copy of a letter dated [in] May 2018 from Shiromani Akali Dal, an untranslated membership identity card and a voter registration card from Sikhs for Justice. In his 21 November 2022 submission, the applicant said that the delegate concluded that s/he was unable to verify the authenticity of the documents provided and thus gave them little weight. The applicant said that he was aware of fraudulent documents being submitted and used and he claimed that the delegate should have vetted the documents and come to a conclusion based on that testing. The Tribunal notes that a decision maker is not required to make the applicant’s case for him or her and that the applicant is required to provide sufficient evidence to establish the claim. The applicant did not provide any evidence to support the documents’ authenticity nor any other evidence to support his claim to be a strong supporter of Shiromani Akali Dal Amritsar and Mr Mann. Based on the information before it, the Tribunal is not satisfied that the applicant is a strong supporter of Shiromani Akali Dal Amritsar under the leadership of Mr Mann.

The Tribunal notes that the applicant travelled to India in October 2010 for approximately two months. The applicant claimed that this was to serve his party in a time of need. As the Tribunal does not accept that the applicant is an active member of the Khalistan Movement nor a strong supporter of Shiromani Akali Dal Amritsar, the Tribunal does not accept that the applicant travelled to India in October 2010 to serve a party.
The applicant claimed that he had been arrested by the police in 2008 and 2009. In his 21 November 2022 submission, he said that ‘the fact that I was released and not charged on both occasions does not mean that it did not happen or that it would not happen in the future.’ He did not provide any corroborative evidence to support the claim. The Tribunal is not satisfied that the applicant was arrested by the police in 2008 and 2009. Based on the information before it, the Tribunal is not satisfied that the applicant has experienced harm.
In his 21 November 2022 submission, the applicant claimed to ‘still fear the supporters/members of the BJP/Congress and DSS and the police, given the police are the agents of the government who are making a crackdown on the rise of the Movement.’ The applicant did not provide any corroborative evidence to support this claim. As the Tribunal is not satisfied that the applicant was or is an active supporter of a separate state and the Khalistan Movement, or a strong supporter of Shiromani Akali Dal Amritsar under the leadership of Mr Mann, the Tribunal is not satisfied that the applicant fears harm from their political opponents, the supporters/members of the BJP/Congress and DSS, and the police.
The criterion in s 5J(1)(a) of the Act contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Based on the information before it, the Tribunal is not satisfied that the applicant has established that he will face a real chance of serious harm or a real risk of significant harm from the supporters or members of the BJP, Congress Party, DSS, the police and the Indian security forces if he returns to India now or in the foreseeable future.
Sikhism is the dominant religion in Punjab and ‘DFAT assesses Sikhs in India generally face a low level of official and societal discrimination and violence’.[2] The Tribunal considered the applicant’s profile as a Sikh who has not been politically involved in the past. The Tribunal is not satisfied that the applicant will face a real chance of serious harm or a real risk of significant harm as a Sikh if he returns to India now or in the foreseeable future.
[2] DAFT Country Information Report India, 10 December 2020, 33.
The applicant has not claimed to fear harm from any other source, and no other claims are apparent on the information before the Tribunal. The applicant has not claimed, and there is nothing to suggest, that he has a well-founded fear of persecution for any other reason listed in s 5J(1) of the Act.
Therefore, the Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, that there is a real risk that the applicant will suffer significant harm.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Katherine Harvey
Senior Member

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

[2023] AATA 1778

23 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Standing