2204383 (Refugee)
[2025] ARTA 2255
•25 August 2025
2204383 (Refugee) [2025] ARTA 2255 (25 August 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship
Tribunal Number: 2204383
Tribunal:General Member R Hampson
Date:25 August 2025
Place:Brisbane
Decision:The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that
(i) the first named applicant meets s 36(2)(a) of the Migration Act; and
(ii) that the other applicants satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Statement made on 25 August 2025 at 12:25pm
CATCHWORDS
REFUGEE – protection visa – India – particular social group – Indian people in an inter-caste marriage – political opinion – Dalit empowerment – anti-government – widespread corruption in law enforcement and government – harassed and pressured by politically affiliated lenders to increase loan repayments – targeted and attacked – new claims – inter-caste love marriage – pressure to marry own caste – disowned by family – debt in applicant’s name – ostracised from society – honour crimes – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J–5LA, 36, 56, 65, 359A, 369, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FER17 v MIBP [2018] FCCA 3767
FER17 v MICMA (2019) 269 FCR 580
SZEAM v MIMIA [2005] FMCA 1367
Tahiri v MIAC [2012] HCA 61
VSAB v MIMIA [2006] FCA 239Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 March 2022 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be nationals of India, applied for the visas on 22 November 2018. The delegate refused to grant the visas on the basis that they are not persons to whom Australia owes protection obligations.
The applicants appeared before the Tribunal by MS Teams video on 30 June 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages who also appeared by MS Teams video.
The issue in this matter is whether the applicants are persons in respect of whom Australia has protection obligations.
BACKGROUND AND RECEIVING COUNTRY
The applicants claim to be both [age] year old nationals of India. The applicants were married in India in 2013 and the couple now have [an age] year old daughter.
The first applicant claims he was born in Ahmedabad, Gujarat, India and his ethnicity is Indian and his religion is Hinduism. The second applicant claims she was born in [Town 1], Mehana, Gujarat, India and her ethnicity is Indian and her religion is Hinduism. Their daughter was born in Australia.
The applicants came to Australia first [in] April 2016 for one month on visitor visas then returned to India. The applicants returned to Australia again [in] November 2018 on visitor visas. They applied for a protection visa on 22 November 2018 and were granted Bridging visas on 15 January 2019.
The applicants provided a copy of the biodata page of both of their Indian passports as part of the protection visa application. The delegate accepted that the applicants are citizens of India and there is no information before me to the contrary. I find that the applicants are citizens of India, and that India is their receiving country for the purposes of assessing their claims for protection.
Evidence before the Department
Protection visa application
In their protection visa application, the applicants claimed that they left India because, extracted as the words of the first applicant:
‘I and my father borrowed some money from my father's politician friends. We were paying regular instalments but suddenly those two lenders demanded money overnight. It was impossible for me and my father to manage [amount] INR overnight. We requested them to give some more time but they denied. Later we came to know that they started demanding money because they were pressurised by BJP top leaders of the state Government to do so. They later put a condition that they will stop asking for money only if I and my father withdraw support to Jignesh Mewani. Jignesh Mewani is a famous Dalit leader and is working for the rights of Dalits and poor and downtrodden. When we denied, they told us to do that anyhow’.[1]
[1] Applicants protection visa application dated 22 November 2018.
In response to the question about suffering harm in India, the first applicant claimed,
‘We were pressurized. Goons were sent to us. My house was attacked simply because we supported Jignesh who was raising his voice against the state government. He was supporting Dalits in their fight against the brutalities of the state government. I and my father supported him so we became the target of Government…I will definitely be killed as I was mainly involved in supporting Jignesh. I was the core support if my father. They know if I come back, my father will start supporting the campaign by Jignesh. I will definitely be attacked. We went to police but police denied registering our complaints. Rather, we were treated like criminals. It is the Government and police authorities which were harassing and torturing us. BJP is ruling state as well as central Government so even if we had moved anywhere else, we would definitely have been traced. They have their goons everywhere’.[2]
[2] Ibid
The applicants were not invited to attend an interview with the delegate.
The delegate wrote to the applicants on 7 February 2022 with a s56 request for further information regarding their background history and the details of their claims. The delegate did not receive a response to this letter from the applicants.
The applicants did not provide any further supporting documents to the Department apart from their passports.
The delegate, in their decision record stated,
‘the applicant has not adequately explained or provided any substantial details of his claims, his experiences in India or what he fears on return. He has not provided any evidence to corroborate his claims. The applicant’s failure to provide further details about his claims in his application raises concerns about the credibility of his claims’.[3]
The delegate did not accept the applicants claims either individually or cumulatively and as such rejected the claims in their entirety.
[3] Delegates decision record, p5, dated 8 March 2022.
The delegate found that the applicants are not refugees as defined by s 5H(1) of the Act and that they are not persons in respect of whom Australia has protection obligations as provided for in s 36(2)(a) of the Act. The delegate also found that they were not satisfied that the applicants are persons in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
Evidence before the Tribunal
The Tribunal sent a prehearing form to the applicants on 6 February 2025 requesting they provide details with regard their attendance at a hearing if it were to be scheduled and details of their claims. The applicants completed and returned this form on 13 February 2025 and included further information, extracted below, about their claims:
‘I am seeking protection in Australia because returning to India would put my life in serious danger. My father and I supported a political leader advocating for marginalized communities, which led to targeted threats from individuals connected to the ruling party. They falsely accused us of financial dues and demanded a large sum of money. Even after we paid what they initially asked, they continued to harass and pressure us for more. After I arrived in Australia, my father had no choice but to sell our family home to pay them in full, hoping to put an end to their threats. However, despite clearing the payments, they are still demanding more, leaving my family vulnerable and in fear. Seeking police protection was futile, as authorities refused to help us and instead treated us as criminals. Moving within India was also impossible, as the ruling party controls both state and national governments, ensuring we would be tracked anywhere we went. With my family already displaced and the threats continuing, returning to India would put my life at immediate risk. I have no security there, and I urgently seek asylum in Australia to live without fear of persecution or harm’.[4]
[4] Prehearing information form dated 13 February 2025.
The first applicant also furnished a skilled migration assessment letter dated 2 August 2024.
Oral evidence at hearing
Preparation of the Protection visa application and AAT application
When asked about the preparation of the protection visa application the first applicant said a friend in India helped them with it as their English was not fluent but they were aware of the contents of the application.
Background in India
When asked about his family background the first applicant stated his parents live in Ahmedabad, Gujarat, India and have lived at a new address for the past 6 years which is about 30 kilometres from where the family had lived previously. His sister is married and lives in a small town in Gujarat and his brother lives with his parents and is [age]. The first applicant’s family are from Rajasthan but moved to the state of Gujarat. He is in contact with his mother and sister but has no relationship with his brother and father.
The second applicants family are Gujarati and live in Ahmedabad also. She has a sister who is married.
The applicants stated that they married in secret in 2013 as theirs was a ‘love marriage’ and not approved or condoned by either of their families or their community or culture. The first applicant had been party to an ‘arranged marriage’ since the age of 3 and refused to enter this marriage when he was of age.
The applicants explained that because they are both from different castes and different states and ethnicities their marriage would be rejected by their families as the custom is for marriages to be arranged within the same caste and ethnicity. Therefore, they married but continued to live with each of their own families until 2016 when they applied for visitor visas and came to Australia. The first applicant said that when he and his wife had been in Australia for a month his mother and grandmother were hospitalised with the stress of him having left India and having been married and living a lie. The applicants then returned to India. The first applicant explained,
‘there was no support for me because of this life, I must live away from the caste, I was not allowed at any social function. Religion has power and everyone needs to follow community members who get together and make a decision. They are all male. My father cannot bribe the local police. The higher authorities threatened my family. My sister’s, father in law said I am not allowed to visit my sister at their home. There is no study option for me either, so when others have tried to do this, they run out of money and rely on family so they have to come back. If you allow your son to do this you will be as a whole family removed from the caste system, they beat me and try to force me to divorce’.
The applicants each then returned to live with their own families of origin until 2018 when they again returned to Australia on visitor visas. The applicants also holidayed together in 2018 in [Country 1] for one week. They applied for the protection visa on 22 November 2018.
The first applicant completed [grade] in India and [Course 1] in Australia. The second applicant completed [Course 2] in India. She now has completed [Course 3] in Australia.
When living in India the first applicant worked with his father and brother in a [business 1] until 2016. Since arriving in Australia, the first applicant worked in [two work areas]. For the past 14 months he has worked at [another workplace].
The first applicant said that when they initially came to Australia in 2018, he could not pass the English language proficiency test but is now quite fluent in English. He has also applied for a 491 business startup visa but missed the allocation for 2025 and cannot apply again until 2026.
The second applicant did not work in India but since arriving in Australia has worked in [two workplaces] and has worked in [a specified workplace] for the past 9 months.
Reason for leaving India
At the hearing the applicants reiterated the information they had included in their protection visa application but wove into this history the complexity of their ‘love marriage’ as part of new claims. These claims will be addressed individually and then cumulatively.
Debt to the investor
When asked why they left India the first applicant stated,
‘we (referring to he and his father) borrowed money from a friend’s father. I did not like the state government but preferred the independent party who had no finances and my father supported him (the independent candidate) with some funds to assist the lower caste. The ruling government target people who support the independents.
I used to work with my father and then the love marriage and my father then stopped the funding. He said, ‘first you did this one and now this (referring to the love marriage and the funding of the independents)’.
His father, he said, was angry with him and was also now in debt but essentially framed the first applicant saying, ‘you borrowed the money and now you pay it back’. His father, he said, ‘sold the family home but they wanted more money. They kept making different conditions about funding and then they found out about the love marriage and they wanted their money with interest right now or take our land’. He said his father then removed him from the company, with no position for him and giving him nothing as of 2016. He explained that,
‘when went back I was not allowed in the house if with my wife. I had no money of my own and they say the debt is my problem. So, I worked as a contractor between 2016-2018 outside of my family on commission. If I stay home there is a problem with my family and with investor. If I leave my parents’ house, there is no support. I thought I could fool them that I will sort it out and get a divorce. They pressured me for 1.5 years did not allow me at any social functions. I stayed with my family to get time and work out something for my future and then came back to Australia. I can’t pay the money in India. The investors son and the Home Minister are good friends and this is where the pressure has come from.
It was paid to my father’s account and he didn’t pay any of it back to make me financially weak so that I would go back and marry into the caste and they regain the respect they have lost’.
I asked whether the investor had been paid, the first applicant explained,
‘my father is giving [Product 1] to the investor and paying some amount (his father owes the investor about $[amount] AUD which has now become the first applicants debt). They are working on [Project 1]. The investor is still demanding money from me. My father is pressuring me and has passed this pressure onto me to punish me. He wants to force me to marry someone else with money and power without my consent. Mewani, the independent leader needed campaign funding and doing booth work. The investor is from the BJP party and he is not happy my father is supporting someone else and if Mewani won he may have some political power and ability to complain and they may take action. Can’t really trust any politician’.
When asked about if the applicants were harmed whilst living in India and what they feared if they were to return to India, the first applicant said,
‘the investor had thugs beat my family many times and my father tried to force me to marry before 2016. After that they came to my work and abused me asking me for money. I went to the police but there was no action. I have a friend in the police but he refused to help me because of who it was (the investor). They (thugs) came to our house and threatened us and wanted more money. They ignored the contract. They abused my father, I went out to them and they called me to come here, they slapped me on the street, to take any opportunity to show we have power. If I come to a public function, they abuse me and slap me’.
When asked if he thought the police and or the authorities in India could protect him, he said,
‘I went to the police station but because I borrowed money with my father and my father will not give me any support, we paid the interest and must finish the project. My father put all the pressure on me and told me to divorce my wife. But when they (the police) learnt the name of the person of the loan is powerful they refused to assist me as they (the investor) are untouchable. I cannot post anything online then it is gone. I use a different identity on Instagram’.
I asked if there was anyone else or any other authority he could go to for protection, he said,
‘after the 2014 election all positions were filled by BJP leaders. CJI higher authority in the court top of the supreme court. BJP axes everything opposing them and you are sent to jail or convert to BJP. Can’t say anything against them on the street or on social media or someone will beat you or you end up in jail. Opposition leaders are the same they pretend they are different but are just making money. I complained about the dust as I ride a bike, they say they will fix it, but a local BJP leader abused me and told me never complain again, we know what we are doing. As the smallest person in the system and my police friend explained how it is impossible.
I asked the applicant if they could relocate to another part of India to be safe from the harm, the first applicant said,
‘I had to delete all social media. They will track me down. Rajasthan is more religious and my relatives there are religious. We are from the Banjara community and there are more problems there next to each other there are stricter rules there’.
I asked about the south of India as an example to relocate, the first applicant explained,
‘the investor can’t pay it right now have paid some but have said I didn’t pay anything. I can’t trust the authorities in the airport my name is on a list. Relocation to Delhi for example, the chief minister but he lost the election in Gujarat and now has lost Delhi as well. The BJP is still the ruling party in 90 percent of the country. The same everywhere’.
I asked the applicant about relocation to any other part of India and he did not answer the question directly but said that the BJP owns the Adani company and they run half of the airports in India and therefore they would know he had returned to India.
When I asked if the applicants had anything further, they wished to discuss with me about their claims the first applicant said,
‘when our passport expired, we went to the Indian embassy and someone from there came outside and abused me and asked me why are you making claim and gave me a piece of blank paper to withdraw your application and then we will decide to give you a passport or not’.
The ‘love marriage’ and refusal of the arranged marriage
The applicants told me they married in secret in 2013 after going to a lawyer and filling out the marriage paperwork and ensured nothing was sent to their respective homes such as their passports. The first applicant said he bribed the postmaster to stay quiet and to ensure relevant mail was not sent to their homes.
The applicant explained,
‘the community head came to our house to make the decision to force your son to marry in the community. My family tried to force me. Granma and mother hospitalised with stress. I feared losing them so I went back (to India from Australia) to try to explain. My mother accepted but does not approve. After baby was born, they are now communicating. My father blames my wife. The community leaders spied on me then. Friends helped me pack my bag and we worked as normal and switched off our phones and they think we are at work but we went to the airport, we told family we were on overtime so they didn’t worry until we arrived in Brisbane. We told them don’t need to try to find us’.
The first applicant explained his father has now refused any relationship with him, set him up with the debt of his company as a punishment. His brother, who is also a partner with his father in the company, has also disowned him but has also made threats to him and abused his mother for having any relationship with the first applicant. The first applicant fears reprisal from his brother and father for bringing shame to the family but also for not following through on the arranged marriage as this was also a business relationship and was arranged when the first applicant was [age].
The first applicant couple’s this fear with the now lumbering of the significant debt of the business to his name to which he states he has no chance of clearing. He said his father is still in a business relationship with the investor and provides him with [Product 1 for Project 1] and this goes towards the debt but there are still many years left on the [project] and as such the debt remains.
The second applicant said her family is supportive of her but do not approve of the marriage as she is from Gujarat and he is from Rajasthan. Her parents also do not approve of how the couple now live as her parents do not believe she should be studying or working but supported by her husband in an arranged marriage of their choosing to a Gujarati man.
When asked why they did not include information about their ‘love marriage’ in the protection visa application they said they didn’t know what to include and a lawyer cost too much and their did not have good enough English to understand the complexity of what to include and not in the form.
The applicants did not provide nor were they requested to provide any evidence or material post hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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.
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include marriage.
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.
REASONS AND FINDINGS
The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations.
For the following reasons, the Tribunal remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the refugee criteria in s 36(2)(a) of the Migration Act.
Nationality
On the basis of the applicants’ passports presented to the Department and in the absence of evidence to the contrary, I find that they are each a national of India. I find their daughter, born in Australia is also an Indian national and will discuss my reasons for this point further below.
A preliminary issue arising in this matter is determining the ‘receiving country’ for the purposes of the protection criteria. ‘Receiving country’ is defined in s5(1) of the Act as being a country of which the person is a national, determined solely by reference to the law of the relevant country; or if there is no country of nationality, the country of former habitual residence.
For present purposes the Tribunal is satisfied the issue of whether the applicant is a citizen of India effectively answers this question, acknowledging that while ‘nationality’ is not identical to ‘citizenship’, there is overlap between the terms.[5]
[5] VSAB v MIMIA [2006] FCA 239 at [48]–[53].
The applicant was born in Australia to parents who are Indian nationals and the holders of bridging visas. A copy of her Queensland Birth Certificate is on the Tribunal file.
Having considered relevant country information, Indian citizenship law and all the evidence before it relating to the actions of the applicant’s parents to register her birth. The applicant parents have registered the child applicant’s birth [date] with the Indian government and she now holds an Indian [passport].
According to information before the Tribunal, Indian citizenship is not automatic for a child born overseas to Indian citizen parents. The US Department of State report on human rights practices in India, states
By law parents confer citizenship, and birth in the country does not automatically result in citizenship. Any person born in the country on or after January 26, 1950, but before July 1, 1987, obtained Indian citizenship by birth. A child born in the country on or after July 1, 1987, obtained citizenship if either parent was an Indian citizen at the time of the child’s birth. Authorities considered those born in the country on or after December 3, 2004, citizens only if at least one parent was a citizen and the other was not illegally present in the country at the time of the child’s birth. Authorities considered persons born outside the country on or after December 10, 1992, citizens if either parent was a citizen at the time of birth, but authorities did not consider those born outside the country after December 3, 2004, citizens unless their birth was registered at an Indian consulate within one year of the date of birth. Authorities could also confer citizenship through registration under specific categories and via naturalization after residing in the country for 12 years.[6]
[6] India - United States Department of State US Department of State, Country Reports on Human Rights Practices: India 2021, Section 2. G
The 2020 DFAT Country Information Report India also makes reference to the issue of citizenship as follows :
5.49 Citizenship by descent has different rules based on birth date. Citizenship by descent requires registration within one year of birth unless approved by the central government; meeting of parental citizenship thresholds; and, since 2004, a declaration the minor does not hold a passport of another country…..[7]
[7] DFAT Country information Report India 10 December 2020 p67.
The Tribunal had reference to the relevant provisions of Indian citizenship law. Section 4 of the Citizenship Act 1955 (as amended in 2003), provides that a person born outside India on or after 3rd December 2004 shall not be a citizen of India, unless the parents declare that the minor does not hold passport of another country and his birth is registered at an Indian consulate within one year of the date of birth or with the permission of the Central Government, after the expiry of the said period.[8]
[8] Foreigners Division, Ministry of Home Affairs 8-003a (indiancitizenshiponline.nic.in), see also Citizenship Act, 1955', Government of India, 30 December 1955, Citizenship_Act_1955_16042019.pdf (indiancitizenshiponline.nic.in)
Section 5(4) also states that any minor child can be registered as a citizen of India, if the Central Government is satisfied there are special circumstances justifying such registration. Each case would be considered on merits.[9]
[9] ibid
The evidence before the Tribunal is that the applicant’s birth has been registered at an Indian consulate. On the basis of the above country information, Indian law requires that the applicant’s birth be registered at a consulate within one year of her date of birth to be eligible for citizenship by descent. There is evidence permission has been sought from the relevant authorities to register her since that time. Therefore, the Tribunal finds that the applicant has acquired citizenship by descent, pursuant to the requirements of s4 of the Citizenship Act 1955.
In FER17 v MICMA (2019) 269 FCR 580 the Full Federal Court confirmed that the terms ‘national’ and ‘nationality’ in [s5(1) of] the Act do not extend to someone who is not presently a national but has the capacity to become one. The Court found on their ordinary and natural meaning, the words ‘national’ and ‘nationality’ refer to a status presently possessed. They do not encompass a status capable of being sought and acquired, but which is not presently held. [10] On the basis of this clear judicial authority the Tribunal is satisfied that the applicant’s potential eligibility for Indian citizenship or capacity to be registered at some point in future, is insufficient to establish nationality under the Act.
[10] (2019) 269 FCR 580 at [64]. At first instance, the Federal Circuit Court found that although the applicant was entitled to seek citizenship of Sri Lanka, according to Sri Lankan law he would not be a citizen of Sri Lanka until his birth was registered in the prescribed manner: FER17 v MIBP [2018] FCCA 3767 at [28].
Therefore, the applicant’s declaration before the Tribunal that the applicant child is an Indian citizen, considering the of evidence of an Indian passport the Tribunal finds the applicant child has acquired Indian citizenship and therefore is, currently, an Indian citizen and therefore she is a national of India under s5(1) of the Act.
There is no evidence she is a citizen of any other country, and therefore the Tribunal finds she is, at the time of this assessment, an Indian national and it will proceed to assess her claims for protection on that basis.
What is the applicant’s country of reference, or ‘former habitual residence’
Having found the applicant to be an Indian national who has never lived in India, the next question for determination for the Tribunal is what is her country of former habitual residence’ for the purposes of the ‘receiving country’ in s5(1).
The Tribunal accepts that, generally a person’s country of former habitual residence is determined on the basis of a broad factual enquiry, having regard to relevant factors such as the actual and intended length of stay in a state, the purpose of the stay, strength of ties to the state and to any other state (both past and current), and the degree of assimilation into the state.[11] However, in this case the applicant has never lived in any country other than Australia.
[11] Tahiri v MIAC [2012] HCA 61 at [16].
For an applicant who has never lived anywhere but Australia, a dilemma arises in ascertaining the country of former habitual residence in that it is open to find there is either no country of former habitual residence (having regard to the above mentioned relevant factors) or Australia is the only possible relevant country. Either of these conclusions would effectively be fatal to the application for protection, on the basis that there is no country against which to assess her claims or she is not outside her country of former habitual residence).[12]
[12] See for example SZEAM v MIMIA [2005] FMCA 1367
In this situation, having regard to the humanitarian purpose of the refugee definition in s 5H and the criterion in s 36(2)(aa) of the Act, the Tribunal considers it is also open, and more appropriate and logical, to assess the applicant’s claims against the country of nationality of her parents, India, particularly in this case given that is the country specified in the visa application as the country to which the applicant parents do not want to return and in which it is claimed they would suffer persecution, and where no other relevant country emerges from the facts. The applicant’s parents are not citizens of any other country and lived most of their lives in India. The Tribunal accepts that the only ties the applicant child has to a country other than Australia are to India through her parents.
Therefore, the Tribunal finds the applicant child’s country of former habitual residence is India and it will assess her protection claims against India as the receiving count along with her parents.
Consideration of claims
The applicants claim that if they return to India, they will be the subject of threats and harm at the hands of thugs employed by the main investor in the first applicant’s family [business and project] they are a part of. The investor is wealthy and well connected to government of the ruling BJP and as such the police are not willing to investigate any of the first applicants claims regarding assaults on him.
The investor is owed money by the first applicants father, who has disavowed himself of the responsibility of the debt rather blaming the first applicant as has the first applicants brother who is also a partner in the business. The first applicants father has taken this course of action because the first applicant has refused an arranged marriage that was favourable to his families business rather marrying his wife in a ‘love marriage’. His father believes this has bought shame and dishonour to his family and as such his son, the first applicant should be punished and this is his course of punishment to remove him from the family business and shoulder him with an ongoing debt such that he could not pay as he would be unable to earn enough money living in India to pay it back.
In new evidence at the hearing the applicants claim they will be harmed because of their inter caste ‘love marriage’ that has also gone against both of their families and their community leaders wishes and has brought shame to the families as the first applicant was subject of a long ago arranged marriage.
To properly and fully consider the applicants claims for protection I will now address each of the claims individually and then cumulatively in their findings of fact, credibility and in consultation with relevant, reliable country information.
Credibility
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
I have had regard for the information the applicants provided in their protection visa application which is largely consistent with what they have talked with me at hearing. However, they did not include the significant component of the ‘love marriage’ in their claims for protection to the Department even when the delegate asked for further information from them in a s56 letter. They did not respond to this letter. When asked about this at hearing and informed about the Tribunal’s ability to draw an adverse inference under s 359A because this was not presented to the delegate and is classified as a new claim. Section 359A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.
The first applicant said they did not think of it at the time, did not really understand the application process and could not afford to engage a lawyer, did not have good English and they were more concerned about the threat from the investor.
I found both applicants testimony at hearing to be consistent and free flowing, they did not rely on each other for information but spoke in a logical manner. I accept the visa application process is difficult to understand without a good grasp of the English language and the ability to engage a lawyer immediately on arrival in a new country is expensive, daunting and difficult. As such I have not drawn an unfavourable inference with regard the applicants new claims about the ‘love marriage’. I accept the difficulty this has caused in both of their families and indeed their local communities in India from a cultural and a business perspective given the first applicants father wanted him to marry someone else as it was a positive business arrangement between two families. I will discuss this claim in further detail under its own heading.
The debt to the investor
I found the applicants explanation of the business he was in with his father and brother plausible along with the establishment of a significant debt to the investor which was explained to be paid off over time as [Project 1] was completed. The applicant has also added debt in his support of the independent political party to which his father seemingly has taken issue with as the first applicants support of the independent leader Mewani[13] is in contradiction to his father’s business connection with the investor who is a supporter of the BJP, India’s ruling party.
[13] ‘Jignesh Mevani (also spelt Mewani) is an Indian politician, lawyer, activist and former journalist serving as the representative of the Vadgam constituency in the Gujarat Legislative Assembly since 2017. He is a member of the Indian National Congress party. He is the convener of the Rashtriya Dalit Adhikar Manch (RDAM)’
The applicant claims he has been assaulted by thugs sent by the investor demanding he repay the monies owing. He has also said his father is still in business with the investor and is supplying [Product 1] to pay off the debt and keep the relationship going. The applicant claims he has been unable to report these assaults because of who the investor, the local police will not investigate the matter. The first applicant did not provide any further detail about the assaults on him by these alleged thugs and I found these points of his claim lacking in detail.
DFAT acknowledges Indian people generally hold little faith or reliance on police to investigate matters as do the police themselves and even when a matter is deemed to be investigated a bribe must be paid for this to occur.[14]
[14] DFAT Report on India, September 2023, p 47. s5.4.
The first applicant has provided no other evidence to support his claims stating anything he did have was on his phone which he left in India.
As such I have given limited weight to the claims regarding the investor as there is little to demonstrate this apart from the first applicants oral and written testimony.
Whilst I have said I find the first applicants explanation regarding the debt and his father and brother’s stance regarding the family business plausible, I also note the claim lacks substantial detail and is confusing in how much money is actually outstanding, and if the applicant were to return to India how much would he be required to pay. I understand the applicants have not lived in India for many years and this information may well be an unknown. I accept the claim regarding the debt on the basis the applicants have provided consistent, plausible evidence in their written applications and in their oral evidence at hearing.
The ‘love marriage’ and arranged marriage
I have had regard to country information about marriage in India and particularly in Gujarat and Rajasthan. The current 2023 DFAT Report on India comment that inter-caste and interfaith marriages whilst legal, many Indian families still prefer to arrange their children’s marriages to someone in the same caste and faith. Those that engage in marriages outside of their caste and or faith may experience shunning and or violence from their own families depending on the strength of their beliefs and conservative values. These types of honour crimes in response to interfaith or inter-caste marriages range from acid attacks to person being detained in their own home and or hiding from their own family for fear they may harm or even kill them[15]. DFAT also notes that state protection for couples subjected to such family violence sometimes exists, sometimes with the payment of a bribe[16].
[15] Department of Foreign Affairs and Trade report for India, September 2023, p35.
[16] Ibid.
The first applicant has claimed to be from the Banjara community. Thew Banjara tribe are originally from Rajasthan where the first applicant claims to be from. They were originally a nomadic tribe moving cattle and camping where the cattle were[17]. The Banjara have been considered by the Indian government as an Other Backward Class (OBC) because of their nomadic status and as such faced significant discrimination over time. A 2021 news article from the Times of India reports,
‘the man is a part of the Banjara community, which regards inter-caste marriage as a 'punishable offence'. Anyone who opts for inter-caste marriage is ostracised from the society. The community is asked to turn a back towards the persons involved and to cut all ties with them. Initially, Praveen's family was ostracised by his village but were later asked to pay a fine worth Rs 5,000 to prevent the shunning’[18].
[17] 23394.pdf ‘The History and Legend of Banjara’, International Journal for Multidisciplinary Research, Mallikarjun M, Vol. 6, Issue 3, May-June 2024, accessed 25 August 2025.
[18] 'I had thoughts of quitting marriage': Couple ostracised for inter-caste marriage returns home | India News, February 9, 2021, accessed 25 August 2025.
I have also had regard to the DFAT Report of 15 July 2015 as this is pertinent to when the applicants were living in India. This report states,
‘arranged marriages continue to account for the overwhelming majority of marriages across India. Parents and/or significant family members are often solely responsible for making a decision about who children marry, particularly in north India. Many parents consider arranging a marriage for their children a right and duty and may not accept modern marriage practice such as a son or daughter choosing their own spouse. There is enormous social pressure for women to marry by their mid-20s and men by their mid-30s. Although the divorce rate has increased in recent years, particularly among the affluent middle classes, India has one of the lowest divorce rates in the world at an estimated one in 1,000 marriages.
There is also significant social pressure for individuals to marry within their own caste and/or religion. While statistics for inter-caste and inter-faith marriages can be variable, an India Human Development Survey conducted in November 2014 reported that just five per cent of Indian women had married a husband from a different caste, with inter-caste marriage being most common in Gujarat and Bihar (over 11 per cent) and rarest in Madhya Pradesh (less than one per cent). Since the election of the Modi government in May 2014, Hindu right-wing groups that claim proximity to the BJP have stepped up social pressure and violence against inter-faith marriages involving Hindus. In rural India, village councils have played a role in upholding conservative community views about marriage and relationships. In January 2014, the Supreme Court intervened after a woman in West Bengal was allegedly gang-raped on the orders of a village council as punishment for having a relationship with a man from a different caste. So-called “honour killings”, committed by the families and communities of those involved in inter-faith and inter-caste relationships, are particularly prevalent in villages and small towns in north India. It is estimated that at least 1,000 honour killings take place each year in India. Members of lower castes are vulnerable to violent reprisals if they are perceived to have entered relationships with members of higher castes.[19]
[19] Department of Foreign Affairs and Trade report for India, 15 July 2015, p 13.
Having considered the above country information which is consistent with the applicants claims regarding their families vehement disapproval of their marriage, the first applicants family particularly because the arranged marriage was part of a business dealing also. Although the country information indicates women do marry men from a different caste and or faith and Gujarat is one of the states where this occurs this only accounts for 11 percent.
DFAT also reports couples who engage in inter caste or interfaith marriages (love marriage) maybe affected in where they can live by their financial capacity, the degree to which their families will assist them, their education, employability, support network and whether they are ‘visibly different’. This point will be examined further when considering relocation.
According to the Pew Research Centre, more than 60 percent of Indians say it is very important to stop people from marrying outside their caste, although the prevalence of this view varies regionally[20].
[20] Religion in India: Tolerance and Segregation, Pew Research Centre, 29 June 2021, p29, accessed 15 August 2025.
DFAT in their 2023 report notes an example stated as follows,
‘one couple told Aljazeera in 2018 that they experienced discrimination in finding rental accommodation, for example. The interfaith status of their relationship was obvious because of their surnames. Another couple mentioned in the same article reported discrimination in accessing education for their daughter, again because their names revealed that they were an interfaith couple[21].
[21] Ibid.
After considering the country information and the applicants oral evidence at hearing I give moderate weight to their claims regarding their love marriage. The first applicant fears harm from his brother who has threatened him physically, made statements about his contact with their mother and grandmother threatening harm. According to the first applicant’, his father has ostracised him from their family business and shunned him in their community as he has brought shame to the family because of the love marriage. His father has also, he claims to have shouldered him with a significant debt which would be financially crippling if he were to return to his home area in India in the foreseeable future and attempt to pay off as he would be unable to obtain work proportionate to the debt and maybe discriminated against in obtaining work, housing and daily needs because of the love marriage.
Whilst the second applicant has said she has contact with her family in India they do not accept the marriage and if she were to return to India their wish would be for her to divorce the first applicant. The first applicant has said he now has some limited contact with his mother and grandmother because of their daughter, but he has no contact at all with his father and brother. He is fearful of what retribution they may bring upon him if he were to return to his home area of India, where they still reside and conduct business. This harm maybe in the form of physical harm and or sabotaging his ability to make an income, shouldering him with the debt and ostracism from the community.
I have given moderate weight to the applicants claims regarding the harm they fear because of their love marriage as this harm may not only be threats and action of a physical nature but may extend to deprivation of the ability to make a living, seek appropriate housing and services and schooling for their child and a social network for them as a family in their home area of India.
Cumulative effect of claims
I have then considered the cumulative effects of the applicants claims regarding the debt to the investor and the love marriage if they were to return to their home area of India in the reasonably foreseeable future. I accept that, cumulatively these claims can be considered as a real chance of harm to the applicants.
The applicants now have [an age] year old daughter who was born in Australia and has an Indian passport and is registered with the Indian government, and whilst she is not considered individually in this application, she is a member of the family unit of the first applicant and because of her age she is considered vulnerable.
Does the applicant satisfy the refugee criterion for protection?
I must now consider if the applicants face a real chance of harm if their were returned to their home area of India I the reasonably foreseeable future. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Considering the cumulative effects of the applicants claims I accept there is a real chance the applicants would be persecuted if they were to return to their home area of Gujarat, India in the reasonably foreseeable future. I accept this real chance is one that is not remote or insubstantial or a far fetched possibility.
100. I must then consider if the harm is serious harm as set out in s 5J(5), noting the instances of harm in that section are not an exhaustive list. I have accepted the applicants claims regarding significant physical harassment of the first applicant by thugs employed by the investor. I accept the applicants together may suffer significant economic hardship that threatens their capacity to subsist and that they maybe denied access to basic services which then threatens their capacity to subsist and they may be denied the capacity to earn a livelihood where the denial threatens the applicants capacity to subsist. The harm the applicants may suffer I accept and consider as serious harm as set out in s 5J(5).
101. I must then consider if the harm is for one of the reasons set out in s 5J(1)(a). These are the reasons of race, religion, nationality, membership of a particular social group or political opinion. I accept the applicants are members of a particular social group namely ‘Indian people who are in an inter caste and or interfaith marriage’. I must then consider if this is an essential and significant reason as required by s 5J(4)(a). I accept the persecution of the applicants is for an essential and significant reasons as required by s 5J(4)(a).
102. I have then considered whether the harm is systematic and discriminatory as required by s 5J(4)(c). I accept the harm is systematic and discriminatory and as such meets the criteria set out in s 5J(4)(c).
103. I have considered whether the harm relates to all areas of the receiving country as required by s 5J(1)(c. I have considered the applicants claims individually and then cumulatively regarding whether they would be at real chance of harm if they were to live in another area of India. I will now address this with regard each claim and the claims cumulatively.
104. Having regard for the claim regarding the debt to the investor, I spoke with the applicants about the possibility of living elsewhere in India than in their home area in Gujarat or the first applicants family of origin state of Rajasthan. The first applicant told me that because of the amount of money still owing to the investor he believes the investor would seek to reprise himself of this by using his societal and financial position to find out where the applicants had relocated to and would seek them out to cause them harm.
105. I discussed with the applicants the vast geographical expanse of India and the extensive population particularly in larger cities, even the capital of Mumbai or New Delhi. The applicant commented that this was reasonable but he would be fearful that the investor may contact his family and or friends and they will know where the applicants are and will be threatened to disclose the details.
106. I asked the applicants why their families and friends would know they were in India where they were living and they said that ‘maybe after 6 months we would want to emotionally connect with our family and this becomes a small thing but then others find out and it becomes a big issue’.
107. I accept the applicants explanation of the difficulty in returning to India and not telling their friends who live there and their families, with the hope of future reconciliation, however this is a decision around their safety.
108. The first applicant claims he will be in immediate danger upon returning to India in the airport as his name is now on a list of wanted persons and he will be taken to Gujarat against his will. The applicant claimed the investor is a high ranking member of the BJP and the BJP through the Adani corporation own half of the airports in India and this is how he would be found. He stated, that when his passport expired, he went to the Indian embassy and an official came outside and abused him and asked him why he was making these claims and gave him a piece of blank paper to withdraw your application and told him then we will decide to give you a passport or not.
109. I do not accept the harm from the investor relates to all areas of the receiving country as is required by s 5J(1)c). I acknowledge the DFAT report commentary with regard widespread corruption in all levels of Indian law enforcement and government and as such the applicants claims regarding the investor finding him if he were to return to his home area of India is plausible if the impetus by the investor was of such urgency. However, I have also considered the capacity and capability of the Indian police force and government to locate and deal with this applicant with regard a debt that appears to have been paid in its original fullness but now is treated as an ongoing threat of more a political vein. The investor is a supporter of the ruling BJP and the threat from the applicants telling is more because of his following and financial support of Jagnesh Mewani an independent politician. The applicants father and brother continue to be in business with the investor and this leads me to believe the danger to the applicant directly and on his return to India is not of an urgent, immediate nature. I have also considered the applicants claim that he is on a list and if he enters India he will be arrested at the airport as the BJP have control of most airport corporations. Whilst this is not impossible it is improbable considering the nature of the alleged debt. I have also come to this view as the sheer size and density of India and the country information regarding the capability of their police forces indicates police resources, training and staffing are limited in some areas and the effectiveness of law enforcement varies widely throughout the country[22]. Therefore, I have not accepted the harm from the investor relates to all areas of the receiving country as the probability of the investor actively and vigorously seeking out the applicant if he were to return to any part of India is unlikely.
[22] DFAT Country Information Report India, Department of Foreign Affairs and Trade, 29 September 2023, pp47-48.
110. I have then considered country information and the applicants information regarding the inter caste love marriage which is not condoned or approved of by either of their families or their community in Gujarat.
111. Whilst inter caste marriage is legal in India most Hindus continue to marry within their broad caste group[23]. Estimates state that inter caste marriages in India are still only in about 5-10 percent of the population with a slight increase but not a dramatic shift in the deeply ingrained cate based norms[24]. DFAT has considered the risk of harm to couples who are in ‘love marriages’ and devote serious consideration to the disturbing number of honour killings. The Immigration and Refugee Board of Canada comments that the statistics around honour killings are likely much higher that those reported as families have reported the deaths as suicides or natural deaths[25]. The risk of violence associated with an inter caste marriage is higher in communities in which a Kap Panchayat (unelected caste based village assembly with no legal standing) operate such as Haryana, Uttar Pradesh, Madhya Pradesh, Punjab, and Rajasthan[26]. Other reasons for honour killings also include refusal of an arranged marriage such as the circumstances of the first applicant[27]. I therefore accept the harm with regard the love marriage relates to all areas of the receiving country as is required by s 5(J(1)(c).
[23] ‘What the data tells us about love marriage in India’, India Times, 29 August 2023, accessed 15 August 2025.
[24] ‘Whose education matters? An analysis of inter caste marriages in India, Journal of Economic Behaviour & Organization, Vol. 176, August 2020, pp619-633, accessed 20 August 2025.
[25] ‘IND200256.E- India: Honour-based violence, including prevalence in rural and urban areas; legislation; state protection and support services available (2016-May 2020)’, Immigration and Refugee Board of Canada, 4 June 2020
[26] ‘Love in the Crosshairs: Honour Killings Still Continue in India’, Outlook India, 15 January 2022.
[27] ‘Honour Killing: Unmasking a Dark Legacy and Striving for Justice’, Legal Service India, n/d. Accessed on 15 August 2025.
112. I have considered if there are effective protection measures available to the applicants in the receiving country, India as per ss 5J(2) and 5LA. A 2021 Supreme Court of India matter reported in the India Times underlined the rights of adults to choose their life partner and the need for society to learn to accept inter caste and inter faith marriages. This article also mentions that in August 2022 the Delhi High Court stressed the awareness of special cells in every district to receive complaints related to inter caste couples. The cells were created on the order of the Supreme Court. However, a 2025 news article quoting human rights lawyer Mihi Desai has said that all states have failed to put in place these protection measures including help lines, special cells and safe houses and are in contempt of the Supreme Court ruling[28]. I therefore do not accept there are effective protection measures available to the applicants in the receiving country India.
[28] ‘States without protection for inter-faith, inter-caste couples in contempt of SC: Mihir Desai’, The Hindu, 17 May 2025, accessed 20 August 2025.
113. I have then further considered if the applicants could take reasonable steps to modify their behaviour to avoid a real chance of persecution, other than modification that would conflict with a characteristic that is fundamental to the applicants identity or conscience; conceal an innate or immutable characteristic; or require the applicants to do any of the specified things in s 5J(3)(c). For the applicants to modify their behaviour they would need to deny and or hide their marital status and their parenthood of their young daughter. I therefore consider this would conflict with characteristics that are fundamental to the applicants identity and they therefore cannot modify their behaviour to negate the chance of harm to themselves and or their daughter.
114. Having had regard for each of these factors I find the applicants satisfy s 36(2)(a) of the Act and meet the refugee criterion.
CONCLUDING PARAGRAPHS
115. For the reasons given above, the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s 36(2)(a).
DECISION
116. The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that
·(i) the first named applicant meets s 36(2)(a) of the Migration Act; and
·(ii) that the other applicants satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
DECISION DATE: 25 August 2025
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.
…
0
6
0