2111464 (Refugee)

[2021] AATA 5664

2111464 (Refugee) [2021] AATA 5664 (14 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2111464

COUNTRY OF REFERENCE:                   India

MEMBER:David McCulloch

DATE:14 December 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 December 2021 at 11:50am

CATCHWORDS
REFUGEE – protection visa – India – fear of honour killing – anti-social conduct in Australia – shame brought on family – drug addiction – criminal offences – short-lived marriage not approved by family – father’s connection with police – relocation unreasonable – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Yao-Jing Li v MIMA (1997) 74 FCR 275
Luu & Anor v Renevier (1989) 91 ALR 39
Randhawa v MILGEA (1994) 52 FCR 437
Abebe v Commonwealth of Australia (1999) 197 CLR 510

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 23 August 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of India, applied for the visa on 13 July 2021. The delegate refused to grant the visa.

3. The applicant was invited to an interview with the delegate that was scheduled on 30 July 2021. She attended the interview by telephone from Melbourne Immigration and Transit Accommodation (MITA). She was represented by her migration agent but her migration agent did not attend the interview with her.

4. The applicant is currently living at MITA in the State of Victoria.

5. The applicant was scheduled to appear before the Tribunal on 13 October 2021 at 9.30am. On the morning of the scheduled hearing, the Tribunal was advised that the applicant had been taken to hospital from immigration detention and therefore the hearing could not proceed. Later contact with the applicant’s migration agent indicated that the applicant would need three weeks to recover and one additional week to be provided for preparation of the hearing, before it was requested that the hearing be rescheduled.

6. The Tribunal rescheduled the hearing for 23 November 2021 at 9:30am.

7. The Tribunal exercised its discretion to hold the hearing by video using Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted remotely, particularly considering that the applicant was in immigration detention. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

8. The applicant was represented in relation to the review by her registered migration agent. The applicant communicated in English.

   CRITERIA FOR A PROTECTION VISA

9. 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.

10. 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.

11. 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).

12. 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–5LA, which are extracted in the attachment to this decision.

13. 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

14. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

15. The Tribunal has before it the DFAT Country Information Report – India, 10 December 2020, a copy of which was provided to the applicant in advance of the hearing.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

17. The applicant was granted a TU 573 visa on 8 February 2015 and entered Australia [in] February 2015. The applicant was granted a TU 500 visa on 25 May 2018 that would cease on 30 August 2020. Upon cessation of her TU 500 visa, the applicant became an unlawful non-citizen until she was granted a Bridging visa E on 22 October 2020. The applicant’s Bridging visa ceased on 30 October 2020, upon which date she became an unlawful non-citizen. The applicant applied for a Protection visa on 13 July 2021.

18. The following information is apparent from the application for protection forms.

19. The applicant was born on [date] in Punjab, India. The applicant was married. The applicant’s mother, father and brother reside in India. Her sister resides in [Country 1]. The applicant is not in contact with them. The applicant lived at one address in Punjab, India from birth until February 2015. The applicant attended school from [year] (sic), graduating from [a secondary school] in [year]. The applicant attended [University] in Victoria from March 2015 until August 201 (sic) and [a named] Institute in Victoria from October 2015 until March 201 (sic). The applicant was employed by four different employers from September 2015 until December 2020. The applicant has since been unemployed.

20. In the application forms, the applicant claims that she left India to study in Australia. To question 76 that asks ‘Why did you leave that country/those countries? Please provide details’, the applicant responds as follows (not corrected for spelling or grammar):

    I CAME HERE AS A STUDENT IN FEBRUARY 2015 , HOLDING INTERNATIONAL STUDENT VISA . MY LIFE TRACK WAS GOING ALL GOOD TILL 2018 BEFORE I GOT MY WAY CROSS TO BAD HABIT OF ENDING UP IN DRUGS ADDICTION AND RESULTING UP IN SHOPLIFTING , TO SUPPORT MY DRUGS DDICTION. AND ENDING UP IN IMPRISONMENT OF 14 [DAYS]. AND AFTER I SERVE MY 14 DAYS IN PRISON, AND AFTER 7 MONTHS , I AGAIN END UP IN PRISON, BUT FOR DIFFERENT MATTER, WHICH HAVE ALREADY BEEN HEARD IN MEGISTRATE [COURT], RELATING TO MY FRIEND’S CAR , WHICH I HAVE PROVEN NOT GUILTY.

    MY FAMILY IS WELL AWARE OF MY EVERY STAGE OF GOING THROUGH THIS, INCLUDING TWO TIMES IMPRISONMENT , WHEN THEY GAVE ME A CHANCE, TO IMPROVE AFTER MY 14 DAYS SENTENCE . SO NO MORE CHANCE IS GIVEN BY MY FAMILY , AS THEY KNOW , AM END UP IN DETENTION CENTRE., NOW THEY GAVE ME A THREAT , IF I GO BACK TO INDIA, THEY NOT ACCEPTING ME ANYMORE,AND GIVING ME THREATS BY SAYING, AM ALREADY DEAD FOR THEM AND WILL KILL ME IF I EVER GO BACK TO INDIA . AS I AM FROM A VERY BIG FAMILY, OF 33 MEMBERS , INCLUDING MY GRANDPARENTS AND UNCLES, AND AUNTS, BROTHERS , SISTERS, MOM AND DAD. AM THE FIRST FAMILY MEMBER, WHO THEY TRUSTED TO SEND AUSTR

21. The applicant did not claim to have experienced harm in India. The applicant also did not move, or try to move, to another part of India to seek safety, although without providing any reasons.

22. To question 81 that asks, ‘Do you think you will be harmed or mistreated if you return to that country/those countries?’, the applicant responds as follows (not corrected for spelling or grammar):

    MY MOM

    MY DAD

    MY BROTHER

    MY UNCLE AUNTS

    MY GRANDPARENTS

    FAMILY OF MY MOM SIDE

    AND ALL RELATIVES WHO EVER I HAVE TRIED TO SEEK HELP AND THEY THREAT ME , TELLING ME THAT AM A BIG ASHAME FOR MY FAMILY’S REPUTATION AND TELL ME NOT TO SHOW THEM MY FACE AND THROW ME OUT OF MY FAMILY.

    WHENEVER I HAVE TRIED TO SEEK HELP FROM ANYONE I KNOW SO FAR, I DONT KNOW HOW THEY JUST KNOW ALL WHATEVER HAS HAPPENED AND DECLARED ME DEAD ALREADY FOR THEM AND FORGET ALL T

23. The applicant provided a written submission through her representative, dated 13 July 2021. The applicant’s claims are summarised below:

    -    The shame that the applicant has brought to her well-respected family as a result of her conduct in Australia may lead to extreme violence against her.

    -    The applicant’s family believes that she has deviated from her culture, tradition and those behaviours expected of her gender, therefore, bringing shame to her family. She believes she is not accepted by her society and may face mental affliction if she returns to her home country.

    -    The applicant fears that her ‘unexpected and unacceptable’ behaviours would trigger and provoke violence within her paternal and maternal families.

    -    The applicant also fears harm from her family stemming from her marrying a man of her choice who then abandoned her, and rejecting a marriage proposal from a relative.

    -    The applicant fears honour killing. The applicant provides an example of an honour killing that happened in Pakistan and claims that 1,000 women are honour-killed each year in India.

    -    The applicant’s brother and sister have told her not to call them. The applicant tries to speak with her mother sometimes who refuses to answer the calls.

    -    The applicant’s home country would be unsafe and her life would be at risk.

    -    The applicant’s father is a well-connected police officer which would make it not difficult for him to locate her in India should she return.

    -    The applicant’s home country is not safe for a single girl to live on her own which could subject her to sexual assaults and rapes.

    -    The applicant’s father’s colleagues gossip about her detention and drug-related matters.

    -    The applicant was told that her deeds might be the reason that her elder sister might not be able to get a good proposal of marriage from their own community.

    -    The applicant strongly fears a risk to her life or extreme physical violence and mental torture.

    -    The applicant has not committed any acts under s 36(2C)(a) of the Act.

    -    The applicant is not a danger to Australia’s security or to the Australian community within the meaning of ss 36(1C) and 36(2C)(b) of the Act.

    -    The applicant meets the criterion mentioned in s 36(2)(aa) of the Act, therefore fulfills the requirements of cl 866.211(2) of Schedule 2 to the Regulations.

24. In the interview with the delegate the applicant made the additional claim that she faces harm in India from the wife of a man, [Mr A], who had threatened her as a result of the relationship.

25. In an email dated 30 July 2021 from the delegate to the applicant’s representative following the interview, the delegate made a request for further information and documents. The delegate requested the following documents:

    -    [The applicant]’s marriage certificate with [Mr B].

    -    Evidence that the applicant’s parents were staying in an apartment that was separate to the one she was living in when they came to visit her in 2017;

    -    Evidence of threats made towards the applicant from [Mr A]’s wife;

    -    Copy of a video which the applicant claims was made by [Mr A] of his wife burning the applicant’s passport; and emails in which she made requests for them to return her phone;

    -    Evidence of the police report made by the applicant to advise the police that her passport had been stolen; and

    -    Evidence of threats received by the applicant’s family members to date (phone calls, messages, posts on social media, messages through social media etc.).

26. Documents provided on behalf of the applicant to the Department both before the interview and after the interview include:

    ·Several photographs.

    ·Victoria Police criminal conviction report dated [January] 2021 showing convictions for theft-related offences [in] October 2020, dealing with property suspected for being proceeds of crime [in] October 2020, and driving- and driver licence-related offences [in] October 2020.

    ·A tax invoice from [a medical centre] dated 9 March 2021 which shows a surgery consultation with [a doctor].

    ·A business plan of [a business] dated 16 February 2019.

    ·Confirmation of Enrolment (CoE) for [Course 1] at [College 1], starting from 24 September 2018 to 23 March 2019.

    ·A letter from [the] director of [Company 1], dated 25 June 2019, which confirms the applicant’s employment at [Company 1] from 24 September 2018 as [an Occupation 1]. The letter states that the applicant was a good worker and it also lists her duties and responsibilities.

    ·A lost property report dated 10 November 2019, which states that the applicant reported to [named] Police Station that her passport (No [deleted]) was lost in her car at [a] Shopping Centre on that day.

    ·A letter from Trades Recognition Australia (TRA) dated [October] 2019, which states that the applicant’s assessment for the occupation of [Occupation 1] was successful.

    ·A letter from [College 1] dated 21 April 2016, which confirms that the applicant was enrolled as a full-time student and invites the applicant to the commencement day.

    ·CoE for a Certificate III in [Course 2] at [College 1], starting from 11 July 2016 to 18 June 2017.

    ·CoE for a [Course 1] at [College 1], starting from 22 January 2018 to 17 June 2018.

    ·CoE for a [Course 3] at [College 1], starting from 23 July 2018 to 30 June 2020.

    ·A Statement of Attainment from [an educational institution] for [Course 1], dated 19 September 2019.

    ·A Statement of Attainment from [College 2], dated 11 August 2016.

    ·A documents request form from [School 1] which was completed by the applicant, dated 19 September 2019.

    ·A blank form from [School 1] which appears to be a request form for invitation letter, letter of leave for travel or testamur/academic documents.

    ·A tax invoice from Births, Deaths and Marriages Victoria showing payment [in] November 2015 for a standard marriage certificate.

    ·A handwritten letter from [the applicant’s cousin] dated 23 July 2021, which states that the author was willing to support the applicant with accommodation and financial support.

    ·An email from Melbourne Marriage Registry dated [November] 2015, advising the applicant on how to collect her marriage certificate.

    ·Numerous payslips in the name of the applicant from [Company 1] covering periods in 2018 and 2019.

    ·A TRA form signed by the applicant on 14 August 2019.

    ·Applicant’s testamur from [School 1] for a Certificate III in [Course 2], dated 10 May 2018, including academic transcript and notification letter.

    ·Applicant’s testamur from [School 1] for a Certificate IV in [Course 2], dated 15 May 2018, including academic transcript and notification letter.

    ·Applicant’s testamur from [School 1] for a [Course 1], dated 23 June 2018, including academic transcript and notification letter.

    ·Several screenshots of web pages from >

    On 12 October 2021, the day before the first scheduled Tribunal hearing, a submission was made on behalf of the applicant. This included details of the applicant’s criminal history. The submission sets out the basis on which it is claimed that the applicant faces harm in India as follows:

    ·Applicant states that her family is facing shame because of her anti-social conduct in Australia and there are high chances that the parents would not be able to tolerate her existence if she would return to her home country. Her parents are a well-respected people in their community. Their relatives are now fully aware of her addiction, smoking, prison, detention, bad company, shoplifting, stealing and police related matters which is matter of shame for everybody. Gossips about her drug addiction, detention, criminal charges in Australia has become a tool in the hands of people to shame and embarrass her family in her home town. Also, close relatives are exerting tremendous pressure on her parents to correct the situation by bringing her home. Applicant fears that this family pressure and effort to ‘save the face’ may lead to extreme violence against her. She believes that she may face brutal retaliation from her family as she has stained the family honor by bring a shame to it.

    ·Applicant states that he parents, siblings and extended family believes that she has deviated from the cultural or traditional norms and expectations. She is no more a good girl which the society in her home country expects a girl to be. She chose to marry a man of her choice and then was abandoned by him, rejected an arranged marriage proposal from a relative, fell into drug addiction, tried stealing to support her addiction, detained by the authorities—she has done everything forbidden in her society - bringing shame and dishonor to the family and any day this may make the situation volatile and the male members of the family may lose control over their minds and harm her. Her brother and sister have clearly told her not to call them. Applicant tries to speak with her mother sometimes who refuses to answer the calls. Applicant states that she is now sure that she will not be accepted in her society now and may have to face a lot of mental affliction if she returns to her home country.

    ·Applicant fears that her unexpected and unacceptable behavior would trigger and provoke violence in the members of both her paternal and maternal’ family.

    ·The threat of honor-killings is not exaggerated. Just a Google search and many stories can be found where even a perceived indiscretion by a woman is enough to warrant her a death sentence by the male members of the family. The family carries out the act without any guilt or fear because they believe that the woman “disgraced” her family in various ways. One most recent example was Qandeel Baloch of Pakistan. Honor based killings in applicants’ home country is also prevalent practice since centuries. There are reports of cases in almost. India but the state of Punjab, Haryana, Rajasthan and Uttar Pradesh are the regions where these incidents occur frequently. It’s estimated that 1,000 women are murdered each year in the name of honor in India. The family’s pride is everything and finishing the one who tarnished it would be looked at as bringing.

    ·Safety is the main argument against all suggestions that the applicant should return home. The applicant states that her home country would be really unsafe, in sharp contrast with Australia which at least assures of providing safety. Also, the applicant urges simply that returning to her home country means putting her life to risk. Applicant reiterates that lack of safety as a reason not to return.

    ·Applicant’s father is a well-connected police officer. He is aware of all the possible loopholes for escape if he decided to finish the root cause of the shame which has been brought to his family in the small town of Punjab. Also, he has good connections with officers in almost all major departments. It is not difficult for him to search, locate and find his daughter’s whereabouts in case applicant decided to live in some other state of her home country. At the same time, applicant’s home country is not safe for a single girl to live on her own in any other state, away from her family and relatives. Girls living on their own often become a victim of sexual assaults and rapes.

    ·Applicant was told that her father’s colleagues’ gossip in the department about his daughter’s detention and involvement in drugs related matters in Australia.

    ·Applicant was clearly told by her mother that she may be a reason that her elder sister may not be able to get a good proposal from their own community as every relative knows about their younger daughters’ deeds.

    ·Applicant states that she strongly fears a risk to her life or extreme physical violence and mental torture if she returns of to her home country.

1. Information as to the applicant’s criminal history provided to both the Department and Tribunal indicates that she has 31 priors between 1 October 2017 and 11 April 2021 as well as subsequent charges. The police information indicates that the applicant has become a recidivist offender. She has shown a blatant disregard for Community Corrections Orders and has failed to comply with their conditions and continued to offend in the community. She has also shown a blatant disregard for bail conditions. The applicant has continued to offend on bail. Police state that they have serious concerns for the safety of the community if the applicant is released on bail and that she will continue to offend.

   Independent information

2. The 2020 DFAT report on India provides the following information:

   Women

   […]

   3.116 The Protection of Women from Domestic Violence Act, 2005 (PWDVA) was enacted to provide more effective protection for female victims of any kind of violence occurring within the family, including physical, verbal, emotional, economic and sexual violence. The PWDVA defines domestic violence as any act, omission or commission or conduct of the respondent, which includes threat or actual abuse.

   3.117 Despite the plethora of laws to prevent crimes against women, in practice violence against women in India continues. Violence can occur throughout the life cycle from pre-birth to infancy, childhood, adolescence and adulthood, and can include sexual, domestic and dowry-related violence.[1]

   […]

   3.132 Although, in general, urban women from higher class and caste backgrounds tend to have better access to legal protections, these women may still be pressured by family to hide family violence for fear of maligning their family’s honour and reputation. Other factors that may affect the situation for a woman experiencing violence include the state in which she lives, her class, caste, ethnicity, religion, education and age. Access to services is typically better in urban areas than in rural regions. In addition to the geographic advantages of urban-based communities, education and the standard of literacy has a significant impact on access to services.[2]

   [1] DFAT, Country Information Report – India, 10 December 2020, p. 41, paras [3.116]–[3.117].

   [2] DFAT, Country Information Report – India, 10 December 2020, p. 43, para [3.132].

   Hearing, credibility, findings and assessment

3. 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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169–70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.

4. In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191] where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.

5. The Tribunal is satisfied that the applicant is a citizen of India and accordingly her claims will be assessed against India.

6. At the end of the hearing the applicant was given the opportunity, through her migration agent, to provide a written submission on issues raised by the Tribunal during the hearing. No submission was provided within the timeframe requested. Particularly given the reasonably proactive nature of the migration representation on behalf of the applicant, the Tribunal wrote to the applicant giving a further period in which submissions could be provided before the Tribunal would finalise its decision. No submission was forthcoming by that date.  Subsequently the migration agent indicated that a submission would not be forthcoming.

7. At the beginning of the hearing the applicant was asked whether there were any issues that would affect her ability to talk about her claims and answer the Tribunal’s questions. The applicant indicated that she has anxiety attacks and that her health is not good and that she is not feeling well. The applicant indicated that she is not currently under medical attention for these issues.

8. The Tribunal indicated to the applicant that it accepts that the hearing is a stressful process. Allowance is made for this. The Tribunal asked the applicant if she felt in a position to be able to articulate her claims for protection and to answer questions. The applicant indicated that she was able to do this.

9. During the course of the hearing the applicant mostly managed to respond meaningfully and articulately to questions and adverse issues put to her. The Tribunal does not consider from the applicant’s performance in the hearing that she was suffering from any overt significant health or mental impairment, at least to the extent that reasonably affected her capacity to give evidence.

10. The Tribunal has the following credibility concerns with the applicant, both in relation to her specific claims for protection and her credibility generally.

11. Firstly, the entry interview with the applicant when she first entered immigration detention indicates that when asked whether there are any reasons why she could not return to her home country, she indicated that she had a partner in Australia. Tellingly, the applicant made no claims that she could not return to India because of the harm that would be faced because of the various reasons now claimed, most particularly because of intentional harm from her family. This is undermining of the truth of those claims.

12. This concern was put to the applicant in writing by the delegate after the interview. In the response provided on the applicant’s behalf she indicated that at the time she was brought into the detention centre from prison she was still trying to make contact with her family hoping that they would support and help her, although she was aware of their anger and disappointment. The applicant indicated that she chose not to tell about threats from her family and chose only to talk about her partner in Melbourne. The applicant subsequently took the threats more seriously. Attempts to call family in May and June 2021 have not been successful. At this point she decided to declare that she fears harm due to the behaviour of her family and threats in the last few months.

13. This issue was discussed with the applicant in the Tribunal hearing. In response to the Tribunal’s concerns that the applicant had not indicated when first in immigration detention that she could not return to India for the reasons now claimed, the applicant indicated that at that point she hoped that her family would forgive her and that she was reluctant to mention the harm that she feared from her family.

14. The Tribunal noted that in the interview with the delegate the applicant indicated that she had told her family about her imprisonment on the second occasion and that they did not support her and instead were shocked, upset and disgusted. This therefore suggests that the applicant had the concern at the treatment by her family at the time she was interviewed in immigration detention, which the Tribunal thinks, if true, would have been indicated by the applicant to the officer at the detention centre as to a difficulty in returning to India.

15. The applicant indicated that she was not in a good state of mind when first in immigration detention as explaining why she did not mention this fear.

16. Despite these explanations, the Tribunal considers that if the applicant had serious concerns at the time of her entering immigration detention that her family in India would harm her, which she would have based on her prior evidence, that this would have been mentioned in response to a specific question as to any harm faced in India. The failure by the applicant to mention such a fear is undermining of the applicant’s credibility to hold such a fear now.

17. Secondly, information on Departmental systems indicates that the applicant was regularly in contact with her family in May 2021. There is evidence that the applicant has been in regular weekly contact with her sister in [Country 1]. This is inconsistent with the applicant’s claims in the interview that she has not been in contact with her family, with only attempts to contact the applicant’s mother, calls to whom have not been answered.

18. The delegate put this concern to the applicant in writing following the interview. In the response provided on the applicant’s behalf it is indicated that the applicant did try to contact her sister and family in May 2021. She tried to convince them that she would try to come out of her problems and should be given a chance to reconnect. The applicant indicated she then tried to connect with her family three to four times a week but no one in her family would speak to her or call her back. She was told that she should not call them as they want no connection with someone like her.

19. The submission seems to indicate that the applicant’s sister in [Country 1] was told that her parents would not discontinue to speak with the sister if the sister continued her contact with the applicant.

20. The Tribunal discussed this issue with the applicant in the hearing.

21. The Tribunal indicated that the written explanation to the delegate after the hearing did indicate that there had been contact by the applicant with family in May 2021, which is inconsistent with evidence in the interview that while attempts of contact had been made calls have not been answered. This therefore is an inconsistency in the evidence.

22. The Tribunal put to the applicant that it had credibility concerns that the applicant would maintain regular contact with her family three to four times a week if there had been an indication that her family would not communicate with her. The Tribunal indicated that it would consider that this message would have been conveyed in the initial call or calls and that would not be multiple calls continuing over weeks.

23. In response, the applicant indicated that there had not been regular contact. Three to five times she did connect with family but they told her not to contact them. The applicant indicated that her sister was trying to facilitate contact between the applicant and her family until her parents warned her sister not to contact the applicant.

24. The Tribunal maintains credibility concerns as to the applicant’s claims as a result of her initially indicating that she had not had contact with her family, when clearly she had had at least some contact.

25. Thirdly, the applicant has provided inconsistent evidence as to when her family knew about her problems in Australia and being in prison. In the written claims for the protection visa the applicant indicated that her parents knew about her imprisonment at the time of her first 14-day detention and they gave her another chance. This is inconsistent with the applicant’s evidence in the interview with the delegate that it was only on her second imprisonment that she told her parents everything. This inconsistency was put to the applicant by the delegate, the applicant agreed that her written claims did indicate that she told her parents of her imprisonment on the first occasion, but that this was not correct.

26. The Tribunal has some concerns as to the applicant’s credibility on key claims as a result of the shifting of this evidence.

27. Fourthly, evidence provided on behalf of the applicant to the Tribunal in relation to her Bridging visa E application is inconsistent with claims that the applicant is estranged from and at a risk of harm from her mother. In that application evidence had been provided by the applicant’s cousin [who] indicated that the applicant was going through a difficult period in her life with the applicant’s mother requesting that the cousin provide support.

28. The delegate wrote to the applicant following the interview noting that this information was inconsistent with her claims. It is inconsistent as to lack of contact, estrangement and a desire by the applicant’s mother to inflict harm on the applicant.

29. In the written response provided on the applicant’s behalf she indicates that she was desperately seeking financial support from family and friends. Her cousin spoke with the applicant in relation to financial assistance. The applicant’s brother tried to extend some help. The applicant’s mother contacted the cousin to see if the applicant needed some money. The applicant indicates that her mother does not speak with her. She only informed her relative so that he could speak with the applicant. The cousin was only asked if the applicant needed anything and nothing more than that.

30. As discussed in the hearing, despite the explanation, the Tribunal maintains concerns that the statement by the cousin as to being contacted by the applicant’s mother demonstrates that the mother had an adverse intention towards the applicant such that she would cause the applicant serious or significant harm. In fact, it suggests a supportive and helpful approach by the applicant’s mother towards the applicant. In response, the applicant indicated that her mother was not thinking about her welfare but just trying to find out what was going on and what the applicant was hiding.

31. The Tribunal does not agree with this and considers that the evidence is more consistent with the applicant’s mother wanting to provide assistance to the applicant, which is undermining of her claims.

32. Fifthly, the applicant has been inconsistent as to whether she has provided money to her parents in India from Australia. The applicant in the interview with the delegate indicated that she had not. However, there is evidence from the applicant’s financial records that she has sent money to her parents.

33. The delegate wrote to the applicant after the interview noting this inconsistency and that it undermined her credibility generally. In the response subsequently provided on the applicant’s behalf it is indicated that the applicant has never sent any money to her parents. Instead the money was transferred for her brother. The only way to get the money to the brother was through the parents’ account.

34. The Tribunal indicated that the comment that the money was intended for her brother seems inconsistent with evidence from the applicant that her brother would not speak to her because of her issues in Australia. Additionally, the Tribunal maintains concerns that the applicant would send money to the bank account of the parents given claims that they intend to harm the applicant, even if it was for the brother.

35. In response, the applicant indicated that money was provided earlier than when the difficulties started. This does not adequately explain to the Tribunal why the applicant would not have mentioned this when asked whether she had indeed provided money to her parents, even if its ultimate intention was for her brother.

36. Sixthly, the clear evidence of the applicant that she had, at least previously, a positive, supporting and loving relationship with her family prior to coming to Australia makes it unlikely that her family would cause her requisite harm on return to India, notwithstanding the issues faced by the applicant in Australia.

37. The delegate wrote to the applicant after the interview with the delegate on this issue. In the response provided on the applicant’s behalf, it is indicated that the applicant had a loving and supportive relationship with her family previously, and that the applicant managed to cover up her issues in Australia when her parents visited her here.

38. However, over the subsequent months bad stories about the applicant reached her family. Her father stopped speaking with her because of the shame. All relatives are now fully aware of the applicant’s situation. The applicant’s father would not tolerate the applicant in India. Close relatives are exerting tremendous pressure for the applicant to return home and for her to be married off to any boy. The applicant fears extreme violence from her family.

39. The Tribunal discussed with the applicant this issue in the hearing. The Tribunal put to the applicant that if the Tribunal were to consider that the truth of the situation as indicated in the applicant’s written claims that she told her parents about her imprisonment on the first occasion and that they were giving her another chance, together with the previously loving and supportive relationship of her family, it would seem unlikely that her family would be so negatively impacted in terms of other criminal issues facing the applicant, that they would turn against her to the extent that they have a desire to inflict on her serious or significant harm.

40. The applicant in response indicated that she was the oldest daughter and that her parents have been shocked by her behaviour.

41. The Tribunal maintains the difficulty of accepting that the applicant’s parents or broader family would inflict upon her serious or significant harm given the past loving relationship, even acknowledging a degree of shock and upset as to the applicant’s conduct and circumstances in Australia.

42. Seventhly, the applicant has been inconsistent in terms of the length of her relationship with her husband, [Mr B], who she claimed she married in 2015. In the interview, the applicant indicated that this marriage and relationship only lasted six months. However, in contrast later in the interview the applicant gave evidence at the time that her parents visited in 2017 she was still living with her husband, and had to make arrangements for her parents to live elsewhere so that they would not learn of the relationship.

43. When this inconsistency was put to the applicant in the interview, the applicant indicated that she had broken up with her husband in 2016 but this was not a long-term breakup. The Tribunal noted to the applicant in the hearing that this was inconsistent with evidence in the interview that the applicant was last in touch with her husband in 2016. The applicant in contradiction in the written response indicated that in fact she broke up with her husband the day after her parents had returned to India.

44. The Tribunal put to the applicant in the hearing that this was still inconsistent with the applicant’s evidence earlier in the interview that the relationship had ended after six months of marriage. This was not qualified to indicate that it was only a temporary breakup. There are therefore a number of credibility concerns for the Tribunal in relation to this evidence. In response the applicant indicated that it has been difficult for her in questioning to remember or recount precise dates. The Tribunal put to the applicant that it would not consider that the applicant would readily confuse whether the relationship with her husband had ended within six months of its beginning in 2015 or had continued until 2017.

45. The applicant maintained confusion over the inconsistencies. The Tribunal is not satisfied that the deficiencies in evidence on this issue are the product of understandable confusion. The Tribunal considers that the deficiencies are undermining of the credibility of the applicant.

1. Eighthly, there is a further inconsistency in evidence provided by the applicant in the interview with the delegate in terms of her relationship with her husband and his actions. In the interview, the applicant indicated that after her parents had departed from Australia in 2017 her husband contacted the parents in India and told the parents that the applicant was married to him, that they are engaging in sexual activity, and that they lived in the same house.

2. The delegate put to the applicant that this was inconsistent with claims that her husband and her broke up the day after her parents returned to India.

3. This inconsistency was put to the applicant in the Tribunal hearing. In response the applicant indicated that the phone calls from her husband to her parents occurred within the day that her parents returned to India when he broke up with her.

4. The Tribunal has significant doubts as to the truth of this. In any event, it is inconsistent with initial evidence that the relationship ended six months after it began in 2015.

5. Ninthly, the applicant has been inconsistent as to her relationship status at the time of the interview with the delegate. The applicant indicated in the interview that she was not currently in a relationship. However, Departmental records indicate that the applicant had informed detention officers that she is in a relationship with someone in detention and requested to be relocated to another accommodation to be with this person.

6. The delegate wrote to the applicant after the interview noting this inconsistency as undermining of her credibility generally and seeking comment. The written response provided on behalf of the applicant indicates that at this time she was single although had had a relationship with [a named person], who was a drug user. The applicant had stopped all communications with him for months. The applicant would not think about a relationship until she lived a sober life. The applicant refers to her good friend [currently] in immigration detention and that the applicant indicated that this person was her partner instead of saying her friend.

7. As put to the applicant in the hearing claims that she misstated her relationship with [her good friend] indicate a willingness to manipulate the truth. Albeit on a matter much more trivial than claims for the protection visa it is nevertheless undermining of the applicant’s general credibility.

8. In response, the applicant indicated that she told this untruth because of the connection she had had with this person in detention and wanting to have the support of this person during this difficult time. The Tribunal can understand this, and this is not an untruth which is given significant adverse weight albeit it does demonstrate a broader willingness of the applicant to manipulate the truth for her own purposes.

9. Tenthly, neither in the written application for the protection visa nor in the written claims made on the applicant’s behalf in advance of the interview is there any claim that the applicant faces harm in India that would be caused by the wife of a person with whom the applicant had an affair in Australia.

10. The Tribunal noted to the applicant in the hearing the failure to include such a claim as part of the written materials provided in seeking protection could be undermining of claims that the applicant has a genuine fear, or that there is such a requisite risk of harm on this basis.

11. On this issue, the Tribunal also put to the applicant that if it were to accept that the applicant had an affair with a married man and that this caused significant upset and consternation by the man’s wife, it nevertheless remained implausible that the level of upset by the partner would result in the partner taking steps to cause the applicant serious or significant harm on return to India. This is on the basis as to whether it is likely that such extreme steps would be taken or doubts as to the logistics that would be needed to cause such harm in India when the person who would seek to cause the harm is in Australia.

12. In response the applicant indicated that she is not very intelligent and cannot be expected to have provided precise details as to every issue. The Tribunal put to the applicant that whilst it does not expect perfection, if the applicant had a legitimate concern that this woman would cause her serious or significant harm on return to India that she would have included this not insignificant claim in her written claims.

13. The failure of the applicant to do so is undermining as to the seriousness with which the applicant holds this concern.

14. Eleventhly, the applicant has failed to provide supporting documentary evidence as to various of her claims, despite specific requests by the delegate after the interview for such information. No marriage certificate has been provided of the applicant’s claimed marriage to [Mr B] in 2015. No evidence has been provided to substantiate the fact that the applicant’s parents lived in a separate rented apartment to the applicant on their visit to Australia in 2017 to avoid the applicant’s parents finding out about the marriage. Most tellingly, the applicant has failed to provide any evidence as requested of threats having been received by her family by way of phone calls, messages, posts on social media and messages through social media.

15. The failure to provide any evidence as requested was put to the applicant at hearing as undermining as to the truth of various claims made. The Tribunal put to the applicant that it had the most significant concern over the fact that no text or social media evidence at all has been provided of threats being issued by her family. In response the applicant indicated that she has no written evidence in terms of threats from her family, it is only oral.

16. The Tribunal has some credibility concerns at the fact there is no text or social media correspondence expressing concern from the applicant’s family towards her actions in Australia or making threats to her. This is not a determinative credibility issue but the failure of the applicant to provide any written evidence in this respect buttresses more direct concerns.

17. Twelfthly, the extensive criminal history of the applicant in Australia and her non-compliance with a number of bail and Community Corrections Orders create concerns as to the willingness of the applicant to flout laws and create concerns as to her respect for law and official processes compounding credibility concerns on more specific matters relating to her claims.

18. In response to this issue in the Tribunal hearing the applicant indicated that her criminal history and adverse circumstances are as a result of her drug use. The applicant indicated that authorities inappropriately accused her and caused her to be convicted of stealing a car.

19. The Tribunal accepts the scourge of drugs and their ability to facilitate criminal and inappropriate behaviour by otherwise decent individuals. Nevertheless, the extensive criminal history and failure by the applicant to abide by bail conditions and community orders causes the Tribunal to form some degree of adverse concern in terms of the applicant’s overall credibility, opportunism and lack of intent to abide by law.

20. The Tribunal considers the above credibility issues. They are numerous and significant including some relating to key aspects of the applicant’s claims. Considering the concerns cumulatively the Tribunal is not satisfied that the applicant is a truthful or credible witness and/or that there is substance to her substantive claims.

21. The Tribunal is not satisfied that the applicant’s family in India are so aggrieved and affected by her conduct including criminal conduct in Australia that they have a desire, on the applicant’s return to India, to inflict upon her serious or significant harm. The Tribunal consider that, on the whole, the applicant’s family have tried to support her during her difficulties in Australia.

22. The Tribunal is not satisfied that the applicant’s family are so aggrieved at her marrying a man of her choice rather than a person with whom the family had arranged marriage that they have a desire to inflict upon the applicant serious or significant harm on return to India.

23. Whilst the Tribunal is prepared to accept that the applicant married a person in Australia as claimed in 2015, given inconsistencies in evidence of the applicant about how the relationship progressed, and the timing of the breakup of the relationship, the Tribunal is not satisfied as to any substantive claims by the applicant in terms of the relationship after the marriage in 2015. The Tribunal is not satisfied that the applicant hid the relationship from her family when they visited her in Australia in 2017. The Tribunal is not satisfied that the applicant’s husband phoned her parents after they had returned to India informing them for the first time about the relationship causing upset and surprise to the parents.

24. Whilst the Tribunal is prepared to accept that the applicant had a relationship in Australia with a married man and that this upset the man’s wife, the Tribunal is not satisfied that the level of upset of the wife is so great that she would either have the desire or ability to cause serious or significant harm to be inflicted upon the applicant on return to India.

25. Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm on return to India for any of the reasons claimed.

26. In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a reason set out in s 5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India that there is a real risk of her suffering significant harm.

27. 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).

28. 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).

29. 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 any of the criteria in s 36(2).

    DECISION

102.   The Tribunal affirms the decision not to grant the applicant a protection visa.

David McCulloch
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.

…