2115408 (Refugee)

2115408 (Refugee) [2022] AATA 557 (18 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2115408
COUNTRY OF REFERENCE:                   India
MEMBER:Nicole Burns
DATE:18 January 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 January 2022 at 11:38am

CATCHWORDS
REFUGEE – protection visa – India – property dispute with uncle-in-law – several deaths in family and threats to applicant, mother and brother – credibility – expanding claims – limited evidence of deaths – no approach to police – delays in departing and applying for protection – applications for bridging visas on departure grounds – mother’s and brother’s visits to home country – returned failed asylum seeker with criminal record – convictions, pre-sentence detention, community corrections order and immigration detention – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 October 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of India, applied for the visa on 30 September 2021.
The applicant appeared before the Tribunal via video link on 5 January 2022.
The Tribunal exercised its discretion to hold the hearing by video, given the hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, 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 by video. The hearing proceeded without any apparent communication problems. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a [Age]-year-old man originally from the Punjab, in India. He last came to Australia [in] July 2018 holding a visitor visa. He claims to be a national of India and has presented his Indian passport to the Department. Accordingly, the Tribunal accepts he is a national of India and that is his ‘receiving country’ for the purpose of assessing his protection claims.
The applicant set out his initial claims for protection in his visa application. In it he claimed, in summary, as follows:
·When his father died on 7 January 2003 his property was divided between himself, his brother and his mother.
·The applicant’s brother moved to Australia in 2008 and his mother joined him when his wife became pregnant in 2013. The applicant stayed in India and lived alone. At that time his ‘dad’s sister’s husband’ made threats to kill him in order to take over his property.
·Concerned for his safety, the applicant moved to Australia in 2017.
·Someone killed his grandparents over a property dispute and his father got married and moved on.
·In 1996 someone poisoned the applicant’s father’s brother.
·Recently the applicant’s mother told him his father got sick instantly, they took him to hospital and the next morning he was pronounced dead.
·The applicant was traumatised and mentally affected by his uncle’s threats, which included putting a contract on their head to take over their property.
·He fears if he has to return to India, his uncle will find out and put a contract out on him again to kill him in order to take over the property.
·[In] July 2021 there was a shooting at his house in Australia and they think his uncle organised it; the applicant and the applicant’s car were robbed, then a couple of hours later they went to his house and started shooting.
·He does not think the authorities in India will protect him due to too much corruption and bribery.
·He is not safe anywhere in India because his uncle had good network connections with politicians.
Material provided in support of the visa application included:
·A translated and notarised copy of the applicant’s father’s death certificate registered on 17 January 2003 showing he died [in] January 2003; and
·Several notarised and translated property ownership transaction summary documents which mention the applicant’s [name] as son of ‘[Mr A]’ and his ownership of shares of properties in India along with others.
In his oral evidence to the Tribunal, the applicant set out his background, current circumstances, reasons for leaving India, and extant fears if he has to return there, summarised as follows. He said he comes from [Village 1] in the Punjab, where he was living before he last came to Australia in mid-2018. His brother moved to Australia in 2008 with his wife, as a dependant on her student visa. They are now Australian citizens, with [young children], who live in a house they own in Melbourne along with the applicant’s mother who came from India in 2013. Before being remanded into police custody (and whilst on bail before being detained) the applicant lived at the same house.
The applicant said his father died in 2003 and he has no relatives left in the Punjab except for his father’s sister and her husband, [Mr B], who has threatened to kill him and take his share of his land inherited from his father. Presently they live in [Village 2], Ludhiana district, in the Punjab.
The applicant said he owns a 1.5-acre share of 4 acres of farmland in his village, which is currently leased for farming purposes. His brother sold his share (1.5 acres) in around 2019 and his mother has sold 1 acre, leaving 0.5 acre (of her share) remaining. The applicant also co‑owns (along with his brother and mother) 40 acres of land in [Village 3] – located around 30 kilometres from their home village – which is also used for farming. This land was bought by his paternal grandfather around 40 years ago with money received from the Punjabi state government who bought their land which was then used for a national highway. The applicant said he and his mother and brother receive an income from leasing their farmland in India: around AUD1,500 per acre, every six months. When asked if he has plans to sell any of his land, the applicant said he does not, as it reminds him of his father.
The applicant said he, his brother and mother also own their family home in [Village 1] which is currently uninhabited.
The applicant said after his father died his mother gave his aunt and uncle, [Mr B], some land which they quickly sold then came back asking for more. His mother refused and thereafter they (himself, his brother and his mother) have been threatened by [Mr B] several times. He told the applicant he would hire hit men to kill him so he could take over his share of the land. If his uncle kills him, the applicant said he can put his fingerprints on paperwork and become the owner, noting it is easy to bribe someone to do so.
Additionally, in around 2016 the applicant’s uncle (and his son) came to his home in the village along with several armed men who started to build a fence claiming to take over the property and land. Police came and the applicant’s uncle was taken to the police station. The applicant said he gave a statement but the police did not do anything because his uncle gave them money.
The applicant said he has heard from his mother that his uncle has also been tricking people by taking buyers to their land in India, receiving a deposit for the land with the promise to send paperwork, then disappearing (and keeping their deposit). He bribes police to keep them off his back.
The applicant said his mother and brother have also been threatened by his uncle. His mother signed some paperwork (he agreed it is like a will) stating that if anything happens to her, her share of the land (and house) is to go to the applicant and his brother. This document is with a lawyer in India.
The applicant said his car was stolen by a group of people in Melbourne [in] July 2021 and four or so hours later that same group drove past his brother’s house (where he was living with his brother’s family and his mother at the time) and fired several bullets into the house. The assailants were later apprehended by the police and the applicant said he thinks they are currently in prison. He believes his uncle was behind the attack, noting that otherwise it makes no sense.
When asked who he is most afraid of if he has to return to India now, and why, the applicant said he is not afraid of anyone, and if his uncle tries to do something he will shoot him. He said he applied for protection because his mother is worried about him.
Fear of his uncle
The applicant claims to fear serious harm from his uncle, [Mr B], on return to India, who he claims wants to kill him to take over his share of land inherited from his father.
The Tribunal accepts the applicant owns 1.5 acres of farmland in his home village ([Village 1]) and a third of 40 acres of farmland in [Village 3], located nearby, both in Punjab, which he inherited from his father who died in 2003. His oral evidence to the Tribunal was reasonably detailed and overall credible in this respect and he has provided copies of land ownership documents to the Department as well as a copy of his father’s death certificate. It accepts he, along with his mother and brother, receives income from leasing the farmland.
The Tribunal accepts sometime after his father died, the applicant’s mother gave some land to the applicant’s father’s sister and her husband, [Mr B], which they later sold. It accepts his mother refused when they subsequently asked for more land. The Tribunal accepts this may have angered the applicant’s aunt and [Mr B] to some extent, they may have expressed their disapproval verbally, and as a result the relationship between the applicant’s aunt and uncle and his mother and brother and himself has broken down and they rarely contact one another.
However for the reasons that follow the Tribunal does not accept the applicant’s uncle has threatened to kill him (including by hiring contract killers) in order to take over his land in India as claimed.
First, the applicant remained living in his house in [Village 1] after his mother left in 2013 until he last came to Australia on 18 July 2018 despite claiming his uncle had told him he would hire contract killers to kill him. He confirmed at hearing that he had visited Australia on two occasions prior to that (in 2017 and 2018), yet failed to apply for protection then, instead returning to India.
Second, in Australia the applicant did not apply for a protection visa until 30 September 2021, over three years after he had arrived, despite claiming to fear serious harm at the hands of his uncle in India for several years prior to leaving India. Additionally, at hearing, the applicant confirmed that he had applied for and been granted bridging visas on departure grounds on three occasions (in 2020 and 2021) prior to applying for protection, claiming at those times an intention to return to India, and failing to mention he feared persecution for any reason there, including in relation to his uncle. At hearing, the applicant said he was on drugs (from sometime in 2019 until when he was remanded in prison, the first time in May 2021) and he did not know there was an option for applying for protection until he was in detention and heard about it. However even if the applicant was not aware of protection visas, his failure to raise specific concerns and instead his indication that he would return to India does undermine his claims to fear serious harm at the hands of his uncle at those times.
Third, as noted at hearing, even if the applicant was killed by his uncle, it does not necessarily follow that his uncle would then have ownership of his land, which undermines the alleged motive for the killing. The applicant stated at hearing that due to the prevalence of corruption in India, it would be easy for his uncle to use his fingerprints, bribe the relevant officials and take ownership of his land. The Tribunal accepts that bribery and corruption are common in India,[1] but for the reasons above and below it has concerns about the applicant’s claims that his uncle has hired a hit man to kill him to take ownership of his land in this way.
[1] DFAT Country Information Report, India, 10 December 2020 at 2.31
The Tribunal also notes that despite claiming his uncle plans to hire a hit man or contract killer to kill him in order to obtain his land, the applicant has failed to organise a will and/or attend the police station to report such threats in India. At hearing, the applicant confirmed he does not have a will, stating he has the land ownership documents. He said he has not gone to the police about his uncle’s alleged threats, noting ‘we’ have disputes about properties in India (he did not elaborate).
Fourth, the applicant’s claims that his mother and brother have also been threatened by his uncle, and that this was part of the reason his mother left India, are undermined to some extent by their return visits to India since moving to Australia. At hearing, the applicant said both his mother and brother have visited India and that after his first visit to Australia, his brother and his family returned with him to their family home in India (in February 2018) where they stayed for some time.
Fifth, the applicant’s claims about his uncle’s activities have grown in some respects. For example, at hearing he said his uncle had visited his house in his home village sometime in 2016 along with several armed men; started laying bricks to build a fence to take over the house; and paid off police after they had arrived and had taken his uncle to the police station (and the applicant had made a statement). However this incident is not mentioned at all in his protection visa application. The Tribunal considers this a significant omission.
Given these concerns, the Tribunal does not accept the applicant’s claims that his uncle has threatened to kill him in order to obtain his land (or property) in India. It does not accept his uncle threatened to hire a contract killer or that he tried to forcefully take over his land (along with several armed men) in 2016. Further, it does not accept his uncle threatened his mother or his brother in the past as claimed. The Tribunal also does not accept the applicant’s uncle cheated some people in India by showing them land owned by the applicant (and his mother and brother) and pocketing the deposit as claimed at hearing.
Accordingly, the Tribunal finds the applicant does not face a real chance of serious harm from his uncle for any reason including in order to take over his property and/or land on return to India. His fears of persecution on this basis are not well-founded.
Given this finding, whilst the Tribunal accepts there was a drive-by shooting targeting the applicant’s brother’s house (where the applicant was staying along with his mother) [in] July 2021, it does not accept that his uncle orchestrated the attack from India as suggested. It remains unclear to the Tribunal the motive for the shooting.
The Tribunal notes in his protection visa application form the applicant states that recently his mother told him his father got sick instantly, they took him to hospital and the next morning he was pronounced dead. At hearing, the applicant was asked how that is relevant to his case. He said on the night his father died, his mother had returned home from visiting him after the doctor had advised he was soon to be discharged from hospital. However his father died later that night and was only 26 years old at the time. The applicant was unclear about the cause of death and the Tribunal notes there is no indication as to cause of his father’s death on the death certificate provided. The applicant has indicated in broad terms that his father’s death was suspicious but provided very limited detail or context and the Tribunal finds such an allegation highly speculative. For these reasons, the Tribunal does not find the applicant faces a real chance of serious harm from anyone on return to India in the reasonably foreseeable future because his father died suddenly, in possibly suspicious circumstances, around 18 years ago.

Additionally, in the protection visa application form, the applicant states that someone killed his grandparents over a property dispute and his father got married and moved on. At hearing, he explained that his grandfather – who was a respected schoolteacher – was murdered when the applicant’s father was around 16 years old. His oral evidence was very vague: he did not know why his grandfather may have been killed and was unable to provide any further details or context. The Tribunal accepts the applicant’s grandfather was killed when his father was still young (around 16) but the circumstances remain unclear, and based on the limited evidence before it on this issue the Tribunal is not satisfied that the death of the applicant’s grandfather decades ago would result in the applicant facing a real chance of persecution from anyone on return to India in the foreseeable future.
Furthermore, the applicant states in his protection visa application form that someone poisoned his father’s brother in 1996. At hearing, he said his aunt found his uncle’s body at someone’s house, yet beforehand his uncle had been fine. He apparently died instantly, and the applicant noted if someone smashes up glass into a drink it would not show up in a scan. When asked who may have poisoned his uncle and why, the applicant said he is not sure but noted that people are killed in India every day. Based on the limited evidence before it on this issue, the Tribunal is not satisfied that the death of the applicant’s uncle over 25 years ago would result in the applicant facing a real chance of persecution from anyone on return to India in the foreseeable future.
Returnees and failed asylum seekers (including with a criminal conviction)
The Tribunal has considered if the applicant faces a real chance of serious harm from the authorities or others on return to India as someone with a criminal record in Australia and as a failed asylum seeker.
At hearing, the applicant confirmed he was arrested and charged with several offences that took place between March and May 2021 and that [in] September 2021 he was convicted of several offences including ‘receives stolen goods’ and ‘possess methamphetamine and amphetamine’. He received a three-month prison sentence (with 94 days pre‑sentence detention) and a community corrections order (CCO). He provided a copy of the CCO to the Department which states he is subject to the order for six months from 23 September 2021. He is presently in detention and indicated at hearing he is to contact relevant staff when released in order to organise assessments and possible drug and alcohol and mental health programs. He confirmed his criminal matters are finalised and his CCO will cease in around March 2022.
The applicant told the Tribunal the offending took place when he was taking drugs (heroin and methamphetamines) and he was stealing to fund his habit. He said shortly after he was remanded in prison he collapsed – due to severe withdrawals – and was hospitalised. There he was prescribed Suboxone to help manage cravings: initially weekly, then monthly, but not any more given he considers drugs are no longer an issue. He said he exercises and has a better diet.
When asked, the applicant said he does not hold any concerns about returning to India due to his criminal history in Australia, stating the government there will not care. He said his family in Australia know about what happened but the only relatives he has left in India are his aunt and uncle ([Mr B]) who he has no contact with. Given this and the fact he has not indicated any problems or concerns from relatives or community members due to his criminal history in Australia, the Tribunal finds remote the chance that he would face serious harm from relatives and/or the community due to his offending in Australia on return to India in the reasonably foreseeable future.
As discussed at hearing, country information indicates that double jeopardy is not imposed upon Indians who have expiated sentences abroad: section 300 of the Penal Code proscribes against police charging and courts trying people a second time in relation to offences already tried to conclusion and expiated abroad.[2] Given this, and the fact the applicant has completed his prison sentence in Australia, the Tribunal finds he will not be of adverse interest to the authorities in India on return there in relation to crimes he committed in Australia.
[2] The Code of Criminal Procedure, 1973 Act No. 2 of 1974, >
Also as discussed at hearing, DFAT in their most recent country information report on India state that they are not aware of any evidence of mistreatment of returnees, including failed asylum seekers, by the Indian authorities[3].
[3] DFAT Country Information Report, India, 10 December 2020 at 5.39
Based on such country information and given the applicant does not have any claim to be of any adverse interest to the Indian authorities, the Tribunal finds the applicant does not face a real chance of serious harm from the authorities on return to India as a returnee, a failed asylum seeker and a failed asylum seeker with a criminal record in Australia on return to India in the reasonably foreseeable future. His fears of persecution on these bases are not well-founded.
Other matters:-
The Tribunal notes at hearing the applicant spoke about an ongoing legal dispute he (and his mother and brother) is involved in with the Punjabi government in relation to the state government’s acquisition of his paternal grandfather’s land (nearly 34 acres) 40 years ago to make way for a national highway by the then chief minister. He said the land was acquired by the state government at a ‘low amount’ which was then sold to a [company] for a much higher price. His brother has given power of attorney to his mother to take forward the case after he left India and she has engaged an advocate to run the case. When asked the status of the case, the applicant said it is still running, in the Chandigarh supreme court, although he did not provide further details. When asked what they hope to achieve by taking this matter to court, the applicant said to get the land back or to get something more for it.
When asked if he has any concerns on return to India related to this case, the applicant replied ‘yes’ but could not articulate why. He then said he is not too concerned about himself but is worried for his mother, if something happens to him. He also noted the farmers protesting government land acquisition have been sitting in Delhi for more than a year.
The Tribunal accepts the applicant along with his mother and brother are parties to an ongoing court matter in India against the Punjabi state government in relation to alleged unfair acquisition of the applicant’s grandfather’s land around 40 years ago. The applicant has not claimed to have experienced any problems as a result, or his mother or brother, including threats or intimidation by the state authorities or anyone else. On this basis, the Tribunal finds remote the chance the applicant would face serious harm from the state authorities or anyone else on return to India due to this ongoing court case.
Conclusion – refugee grounds
Having considered the applicant’s claims individually and cumulatively, for reasons set out above, the Tribunal finds the applicant does not face a real chance of persecution on return to India for any refugee reason advanced and/or that arises on the material before it in the reasonably foreseeable future. His fears of persecution are not well-founded.
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 5J. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a).
COMPLEMENTARY PROTECTION
Given this finding, the Tribunal has gone on to consider whether or not the applicant faces a real risk of significant harm for the grounds advanced if returned from Australia to India as required under Australia’s complementary protection provisions.
The Tribunal finds the applicant is an India national and that India is his receiving country for complementary protection assessment purposes.
For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will suffer serious harm from his uncle or anyone else due to an inheritance dispute or for any other reason; or from the authorities or anyone else due to an ongoing court case against the Punjabi state government; or from anyone because his father died suddenly in 2003, his uncle died suddenly in 1996, or because his grandfather was killed when his father was 16; or from the authorities or anyone else as a returnee, failed asylum seeker, or failed asylum seeker with a criminal record in Australia if he returns to India now or in the foreseeable future. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[4] It follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from anyone for these reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to India.
[4] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342]
Having considered the applicant’s claims singularly and on a cumulative basis and for all the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk he 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.
Nicole Burns
Member

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

[2022] AATA 557

18 January 2022

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