2206578 (Refugee)

[2024] AATA 919

2206578 (Refugee) [2024] AATA 919 (29 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2206578

COUNTRY OF REFERENCE:                   India

MEMBER:Karen Vernon

DATE:29 January 2024

PLACE OF DECISION:  Perth

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

Statement made on 29 January 2024 at 1:13pm

CATCHWORDS
REFUGEE – protection visa – India – Federal Circuit and Family Court remittal – fear of harm from members of extended family because of land dispute – uncle shot and killed – collusion by police, charges dropped or reduced, and appeals in progress – continuing threats by both family groups – not involved in dispute or witness to killing – fear of harm as witness to assault in Australia – assaulted, kidnapped and threatened – reported to police, resulting in perpetrators being arrested and detained as unlawful non-citizens – delay in applying – applied after change of subject area, student visa cancellation, tribunal review and court appeal – vague claims and inconsistent evidence, authenticity of documents provided and no additional documentary or witness evidence – claimed fear on first ground not for refugee criterion reason – claimed fear on second ground not well-founded – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H(1)(a), 5J(1)(a), 5K, 36(2)(a), (aa), (2A), (2B)(c), (4)(b), (c), 65, 425(1), 438
Migration Regulation 1994 (Cth), Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
Iyer v MIMA [2000] FCA 1788
Jarrin v MIMA [1998] FCA 765
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MIEA (1994) 35 ALD 1
STCB v MIMIA [2006] HCA 61
Sun v MIBP [2016] FCAFC 52

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 8 March 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (Act).

   Visa and migration history

2. The applicant was born in India in [Year] and is an Indian citizen. 

3. On 27 February 2014, the applicant was granted a student (subclass TU-573) visa to enter Australia.  He entered Australia on a valid Indian passport [in] May 2014 and commenced studies at university.

4. On 27 January 2015, the applicant’s student visa was cancelled for non-compliance with his visa conditions, namely ceasing to be enrolled in an approved higher education course.  The applicant sought review in the Migration Review Tribunal (MRT). The MRT affirmed the cancellation decision in October 2015. 

5. [In] March 2017, an application for judicial review of the MRT’s decision was dismissed by the Federal Circuit and Family Court of Australia (FCFCA).

   Protection visa and delegate’s decision

6. On 24 April 2017, the applicant applied for a protection visa. In his accompanying witness statement dated 13 April 2017, the applicant claimed to fear persecution in India arising from threats made against the applicant’s family as a result of a land dispute within the applicant’s extended family culminating in his uncle’s death in 2009, and subsequent related threats.

7. The applicant was invited to attend an interview with the Department on 27 February 2018.  He failed to attend the interview, and on 2 March 2018 the applicant notified the Department that he consented to his protection visa application being decided on the papers without a hearing.

8. On 8 March 2018, the delegate refused the applicant’s claims on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2) of the Act. In summary, the delegate found:

   a.the applicant failed to provide key details about the land dispute including acceptable corroborating evidence to support the existence of the land and its ownership and did not specify who he fears within his extended family, only that they have threatened to kill him if he returns to India;

   b.the delay in applying for protection gave rise to a legitimate argument in assessing the genuineness of the applicant’s alleged fear of persecution;

   c.there was nothing to indicate that the applicant has been or will be specifically targeted or singled out for one or more of the reasons mentioned in paragraph 5J(1)(a) of the Act;

   d.there is nothing that suggests he will be targeted and seriously harmed by any individual or group because of his race, religion, nationality, political opinion or membership of a particular social group upon returning to India;

   e.the applicant does not have a well-founded fear of persecution nor is there a real chance that if the applicant returned to India, he would be persecuted for one or more of the reasons mentioned in section 5J(1)(a) of the Act;

   f.there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to India, there is a real risk the applicant will suffer significant harm as outlined in s36(2)(aa) of the Act.

   First Review in the Tribunal

9. On 21 March 2018, the applicant lodged a review of the delegate’s decision with the Tribunal.

10. On 16 November 2020 the Tribunal advised the applicant that it was unable to make a favourable decision on the information available to the Tribunal and invited the applicant to attend a hearing on 8 December 2020.   On 1 December 2020, the applicant filed a copy of the same witness statement dated 13 April 2017 that accompanied his protection visa application.

11. On 8 December 2020, the applicant attended a hearing in the Tribunal and gave evidence with the assistance of an interpreter in the Punjabi and English languages.  The applicant was not represented.  The applicant claimed to fear persecution in India on two grounds:

    a.threats arising from the land dispute within his father’s family which turned violent in 2009 resulting in the applicant’s uncle being shot and killed;

    b.threats he received following an incident in Western Australia in 2017. 

12. On 17 December 2020, the Tribunal, differently constituted, affirmed the delegate’s decision refusing to grant the applicant a protection visa.  In summary, the Tribunal found that:

    a.in or before 2009 the applicant’s family became involved in a land dispute with their extended family which escalated in 2009 when the applicant’s uncle was shot and killed by a member of the opposing family group. Those convicted of killing the applicant’s uncle threatened to harm the applicant’s family as revenge;

    b.the applicant’s fear was by reason of his membership of a particular social group that consists of his family and therefore s 5K of the Act applies;

    c.the applicant’s claimed fear of persecution arising from the 2009 events was not for one of the five refugee reasons and was to be disregarded pursuant to s 5K of the Act;

    d.in November or December 2017, the applicant was assaulted, kidnapped and threatened with harm after he witnessed a fight at a nightclub in Western Australia. The applicant made a complaint to WA police, resulting in the perpetrators being arrested and 3 of them being detained in immigration detention for being unlawful non-citizens;

    e.the applicant and his family received threatening phone calls from the family and associates of the perpetrators in India;

    f.the applicant’s evidence relating to the threats made against him following the 2017 incident was vague and the threats had ceased 12 months prior to the Tribunal decision;

    g.the applicant’s claim of fear of persecution based on the 2017 incident was mere conjecture or surmise and did not amount to a well-founded fear;

    h.there are no grounds that suggest the applicant will be subject to significant harm for any reason if he returns to India as there is taken not to be a real risk of significant harm since the ‘real risk’ is one faced by the sons of indebted fathers in India generally and is not faced by the applicant personally as per s 36(2B)(c) of the Act;

    i.it was not satisfied that there was a real chance that the applicant would suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if he returned to India now or in the reasonably foreseeable future in accordance with s 36(2)(a) of the Act;

    j.it was not satisfied that there was a real risk that the applicant would suffer significant harm if he returned to India now or in the reasonably foreseeable future so the applicant did not meet the criteria in accordance with s 36(2)(aa) of the Act.

    Judicial Review

13. On 29 December 2020, the applicant applied for judicial review in the FCFCA.  

14. On 31 March 2022, in FJK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 211, the FCFCA set aside the Tribunal’s decision and remitted the application to the Tribunal on the ground of jurisdictional error in relation to the Tribunal’s approach to the complementary protection criteria. In summary, the Court held that:

    a.in making its finding in para [67] that there are ‘no grounds that suggest the applicant will be subject to significant harm for any reason if he returns to India as there is taken not to be a real risk of significant harm since the ‘real risk’ is one faced by the sons of indebted fathers in India generally and is not faced by the applicant personally’, in reference to s 36(2B)(c) of the Act, the Tribunal misunderstood the applicant’s claims for protection, as there is no evidence before the Court that the applicant ever claimed to fear harm on the basis of any debt owed by his father. [83];

    b.Even if the reference to ‘sons of indebted fathers’ is merely an unfortunate miswording of the applicant’s claim, and is intended to be a reference to family members involved in land disputes or something similar, it is difficult to see how s 36(2B)(c) could apply. The applicant claimed that he would be specifically targeted because of the family feud over irrigation rights, however the Tribunal has not explained how this would amount to a risk faced by the population generally. [84];

    c.It is difficult to see how any risk faced by the applicant in the present matter could be faced by the population generally. The Tribunal’s reliance on s 36(2B)(c) is misplaced and amounts to a misapplication of the exclusion. [85];

    d.Taking into account the Tribunal’s reasons as whole, the conclusory statements that the applicant did not face a real risk of significant harm, or would face treatment that falls within the definition of significant harm, do not provide an independent basis for the Tribunal’s decision that left no room for the operation of s 36(2B)(c). It is possible that the Tribunal could have reached a different conclusion if it did not make the error at [67] and, accordingly, the error is material. [87];

    e.With the exception of the reason given based on s 36(2B)(c) of the Migration Act, found to be erroneous, the only reason advanced by the Tribunal for its conclusion that the applicant did not meet the complementary protection criteria in s 36(2)(aa), or for its finding that the applicant would not face treatment that amounts to significant harm as defined in s 36(2A), is ‘in view of the above findings’. [88];

    f.The Tribunal was entitled to rely on findings it made in the course of considering the refugee criteria in s 36(2)(a) of the Migration Act for the purpose of assessing whether the applicant met the complementary protection criteria in s 36(2)(aa): DQU16 at [27]. However, not all of the Tribunal’s earlier findings were relevant to its assessment of the applicant’s claims under the complementary protection criteria. It is therefore necessary to consider which of its earlier findings the Tribunal relied on, and whether the findings made earlier in its decision comprise a sufficient basis for the Tribunal’s conclusion in relation to complementary protection, to ascertain whether the Tribunal has properly understood and completed its statutory task. [89];

    g.It is not possible to ascertain from the Tribunal’s reasons the manner in which findings of fact made earlier in its reasons led to its conclusion that the applicant would not face a real risk of significant harm in the reasonably foreseeable future. [94];

    h.It is not possible to conclude that there is no realistic possibility that the applicant may have been deprived of the opportunity of a successful outcome had the error at [67] not been made. [96].

    Review hearing in the Tribunal following remittal

15. On 21 March 2023, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing to be held on 17 April 2023 pursuant to s 425(1) of the Act.In his hearing response dated 8 April 2023, the applicant advised the Tribunal that he did not want to provide any additional documents and would not be calling any witnesses.

16. On 17 April 2023, the applicant attended a hearing before the Tribunal and gave evidence oral evidence and present arguments.  The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.  The applicant was not represented at the review.   No witnesses were called to give evidence in support of the applicant’s claims.  The applicant did not produce any documents to the Tribunal as part of the hearing but was given time to file documents supporting the complaint to Indian police.

17. On 26 April 2023, the applicant filed in the Tribunal a typewritten document entitled First Information Report dated [August] 2009 which appears to contain details of a complaint by [Mr A] to police in India. The document does not indicate its origin, nor was it accompanied by any submissions.

    Non-disclosure certificate

18. As a preliminary matter, the Tribunal had before it a certificate from the delegate issued under s 438 of the Act dated 26 February 2019. The certificate states that disclosure of certain information within the Department’s files would be contrary to the public interest because it may disclose or enable a person to ascertain the existence or identity of, a confidential source of information.

19. Where a certificate is issued under s 438, the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review. However, the Tribunal still has an obligation to determine if the information the subject of the certificate is relevant to the proceedings, and if so, whether the Tribunal should exercise its discretion for disclosure of that information.

20. Prior to the commencement of the hearing, I determined that the certificate was valid. I further determined that the information covered by the certificate was not relevant to the review because it related to compliance with the conditions of the applicant’s previous visa and was not dispositive of any issue arising on the review. At the outset of the hearing, I informed the applicant of the existence of the s 438 certificate and that I had determined that:

    a.the certificate was valid;

    b.the information covered by the certificate was not relevant to this review because it related to compliance with the conditions of the applicant’s student visa and was therefore not relevant to the issues before the Tribunal on this application;

    c.I would not be relying on the information covered by the certificate in making my decision on the application for review of the delegate’s decision. 

21. I confirmed with the applicant that he understood my explanation of the s 438 certificate. Except as stated above, the Tribunal has not provided or otherwise disclosed the certificated information to the applicant, and I have not relied on the information covered by the certificate in reaching this decision.

    Evidence before the Tribunal

22. The evidence available to the Tribunal comprised the Department’s file (including the application for the protection visa and the delegate’s decision), the Tribunal files (including the first Tribunal hearing and decision in 2020 and the FCFCA application for judicial review), the applicant’s evidence at the second review hearing in 2023, and the post-hearing document lodged by the applicant.  The files include the following documents specifically referred to in these reasons:

    a.a signed statement of claims by the applicant dated 13 April 2017 which accompanied the protection vis application;

    b.a document dated 20 October 2013 comprising Grounds of Appeal and Memo of Parties which appears to have been prepared for filing in a legal action in the Punjab and Haryana High Court ([Reference 1]) between [Mr A] and the State of Punjab and Others;

    c.copy of document dated 20 October 2013 comprising Application for suspension of sentence pending appeal, Affidavit in support, Grounds of Appeal and Memo of Parties which appears to have been prepared for filing in a legal action in the Punjab and Haryana High Court ([Reference 2]) between [Mr B] and Others and the State of Punjab;

    d.First Information Report dated [August] 2009.

    ISSUES FOR DETERMINATION

23. The issues in this review are:

    a.whether the applicant is a refugee, pursuant to s 36(2)(a) of the Act; or

    b.if not, whether 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, pursuant to s 36(2)(aa) of the Act; or

    c.whether the applicant is a member of the same family unit as a non-citizen in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Act, and who holds a protection visa of the same class as applied for by the applicant, pursuant to s36(2)(b) or (c) of the Act.

24. For the following reasons, I have concluded that the decision under review should be affirmed.

    CRITERIA FOR PROTECTION VISA AND RELEVANT LAW

25. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Regulations). An applicant for the visa must meet one of the alternative criteria in ss 36(2)(a), (aa), (b), or (c) of the Act. That is, the applicant 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.

    Refugee criterion: s36(2)(a)

26. Section 36(2)(a) of the Act 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.

27. 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: s5H(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) of the Act.

1. Under s 5J(1) of the Act, 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.

2. 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 of the Act, which are extracted in the attachment to this decision.

3. 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.

4. “Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.  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 at 397.

5. A fear of persecution is not well-founded if it is merely assumed, or if it is mere speculation: MIEA v Guo (1997) 191 CLR 559 at 572.

6. If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) of the Act, that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a).

7. Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b) and (c) of the Act.

8. When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L of the Act. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.

   Complementary protection criterion: s36(2)(aa)

9. If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, 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) of the Act.

10. 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.

11. In MIAC v SZQRB [2013] FCAFC 33 at [246], [297], 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.

12. ‘Significant harm’ is exhaustively defined in s 36(2A) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are further defined in s 5(1).

13. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

    Assessment of Credibility

14. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal notes that the benefit of the doubt is to be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal must be mindful that if it makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true: MIMA v Rajalingam (1999) 93 FCR 220.

15. It is important for the Tribunal to adopt a reasonable approach in the finding of credibility. Care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted: Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 at 482 per Foster J.

16. Section 5AAA of the Act makes it clear that it is the applicant’s responsibility to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.

17. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out: Randhawa v MIEA (1994) 35 ALD 1, 13.

18. It remains for the applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance: Sun v MIBP [2016] FCAFC 52 at [69].

19. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: MIEA v Guo & Anor (1997) 191 CLR 559 at 596.

20. The Full Federal Court has affirmed that the question of objective fear of persecution does not arise if a decision-maker rejects an applicant’s claim to hold a subjective fear of persecution, and there will be no need to go further in analysing the basis of the claims: Iyer v MIMA [2000] FCA 1788 (see also SDAQ v MIMA (2003) 129 FCR 137 at [19]).

    Membership of same family unit criterion: s36(2)(b) and (c)

21. Sections 36(2)(b) and (c) of the Act provide an alternative criterion for a protection visa where an 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), and who holds a protection visa of the same class as that applied for by the applicant.

22. 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 r 1.12 of the Regulations.

    Mandatory considerations

23. In accordance with Ministerial Direction No.84, made under s499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department, 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.

    CLAIMS FOR PROTECTION

24. In his protection visa application, the applicant claims fear of persecution arising from a land dispute within the applicant’s extended family.  During the first review hearing in 2020, the applicant introduced a further claim based on threats he received for reporting Indian nationals to the WA police for assaulting him in late 2017.  No issue was taken by the Tribunal at that time with the introduction of this new claim.

25. At the outset of this hearing, I confirmed with the applicant that he was pursuing the same protection claims considered by the Tribunal in 2020.  Those claims which I have considered are as follows:

    a.an ongoing property dispute within the applicant’s extended family culminating in the death of his uncle in 2009, leading to threats of revenge against the applicant’s family from those convicted of his uncle’s death;

    b.the applicant received threats in retaliation against him for reporting Indian nationals who assaulted him in WA in 2017 to the police.

    ANALYSIS OF EVIDENCE, CLAIMS AND FINDINGS

    Identity and receiving country

26. The applicant provided the Department and the Tribunal with a copy of a valid Indian passport issued [in] 2013 with an expiry in [2023]. I am satisfied as to the applicant’s identity and the validity of his identity documents. I find that the applicant has Indian nationality, and that the receiving country for the applicant on this review is India.

    Protection in another country

27. I accept the applicant’s evidence that he does not have a right to enter and reside in a country other than India. I find that s 36(3) of the Act does not apply to the applicant.

    Delay in seeking protection

28. The application for protection was made almost 3 years after the applicant arrived in Australia.

29. In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a 3-month delay in lodging a protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fear of persecution. 

30. During the hearing I asked the applicant to explain why he waited almost 3 years after arriving in Australia to apply for protection.  The applicant claimed that he did not apply for protection when he arrived in Australia because he already had a student visa and he had every intention of returning to India at the end of his studies, but then he got all these phone calls from his family saying the dispute was still ongoing so it would be better if he didn’t come home.  I raised my concern with the applicant that he didn’t apply for protection in 2014 because he did not fear persecution in India at that time for the reasons he was now giving at the hearing.  The applicant again responded that he had a student visa so considered he had a pathway to permanent residency.

31. I put it to the applicant that his evidence that he came to Australia on a student visa as a pathway to permanent residency was contradictory to his earlier evidence before me that he had every intention of returning to India after completing his studies. Given the applicant told the Tribunal in 2020 that he did not intend to return to India when he came to Australia, I put it to the applicant that he had no intention of returning to India when he came to Australia on a student visa.  The applicant responded by saying that he came here to study, and after studying he wanted to get permanent residency through a step by step process, however he didn’t know what the process was but thought he needed to finish his studies and then find out. 

32. I raised with the applicant my concerns that his evidence on this issue was not truthful and that may result in adverse findings against his credibility.   I gave the applicant an opportunity to respond. In reply the applicant claimed that he didn’t want to make a protection visa claim when he arrived because he had a student visa and thought he wouldn’t need a protection visa so that was the path he took.  He indicated that if the Tribunal wanted any further documents, he would be more than happy to provide them.  When asked what other documents the applicant had, he replied by saying “If you think of any document that may be relevant that you want me to provide I will get it.”  I advised the applicant that the onus was on him to provide all relevant documents in support of his case, and it was not for the Tribunal to tell him what documents to produce.

33. It is clear on the evidence that the applicant did not apply for a protection visa after he arrived in Australia in 2014 because he had come to Australia to study, not out of fear of persecution in India, despite his evidence about an ongoing dispute existing within his family in India prior to his arrival.  The applicant only applied for protection once his appeals to the MRT and FCFCA against his student visa cancellation were dismissed in 2015 and 2017 respectively, suggesting that his fear of persecution in India may not be genuine but concocted for the purposes of obtaining a visa to remain in Australia.  I find the applicant’s explanation for the delay in applying for protection is not reasonable.  In the absence of a reasonable explanation, I find that the delay casts serious doubt on the genuineness of the applicant’s fear of persecution relating to the family land dispute.

    Applicant’s Witness Statement dated 13 April 2017

34. The applicant’s protection visa application was accompanied by a signed statement dated 13 April 2017 (2017 Witness Statement) as follows:

    I, [the applicant] born in India on [Date] certify that all the facts provided in this statement are true.

    Initially, I moved to Australia to pursue my studies. I came to study Diploma course in [Subject 1] leading to Bachelors in [Subject 1] at [University]. During this phase, I had some personal burden that has affected my life. It took a huge tool on my ability to concentrate and pay attention to detail. Studying becomes difficult for me. I really thank my family and friend that supported me with all my decisions. During these tense times my only comfort was [Activity]. Therefore, I decided to pursue the field of [Subject 2]. The migration of career pathway from [Subject 1] to [Subject 2] might be unconventional and unheard of, but I now know that education is not a means to employment but a chance to better oneself and to strive to bring something new to the community.

    Talking about the situation in back home, I have been born and brought up in a joint family. My father has three brothers. We own a big chunk of property in India. There is an on going property dispute in between our family. There was big clash between my father's family and their cousin brothers regarding the ownership of land. The dispute escalated to verbal fights leading to difference of opinions. Rift in the family due to interference and false advises to father's cousin's party by other sources. Many times they did a Verbal discussions, which went violent and were loaded with threats.

    However, due to my father's cousin's intervention, the parties agreed to come to a consensus and having a decent discussion regarding the same. Following this they decided to meet in person. My father and his allies were under the impression that it was going to be a sober or nonviolent meet. Never in their worst nightmares had they seen the upcoming situation. Eventually, this verbal fight took a shape of a massive dispute wherein each part sought legal counsel.

    The series of events that occurred on that fateful day can be summarized
    • As decided beforehand, the parties decided to meet a designated time and place. My father and his aides were expecting a decent conversation. However they realized that the other party had different plans. They arrived with a fleet, armed with guns and other sharp weapons. Before anyone realized, a random person from the other party fired a shot towards my family. Unfortunately, the shot directly hit my fathers elder brother, [Mr C]. Everyone including my father stood there with disbelief no one had seen this coming. The loud gunshot lead to my paternal aunty, who resides besides the meeting place, rushed to the spot. She was frantic and shocked to see my uncle in the pool of flood. The goons from the other party did not heed to her cries; instead they held her by her hair and dragged her away. They did not listen to any of her pleas, rather started beating her, abusing her and one of them even hit her on her head with a sharp weapon. By this time, others who had accompanied my father, had raised an alarm Hearing this, the other party goons along with the family members fled from the spot. On that unfortunate day, my uncle lost his life just because of something as insignificant as an intangible piece of land. This incident not only shattered our family into pieces, shocked at the inhumane nature and the heinous attitude of other party members, who were family as well everyone was at loss of words as none could understand the extent that greed for money or property could cause a person to act like this.
    • Consequently, my father and family reported this incident occurrence to police and registered complaint against them in the local police station. Eventually, the family got together and decided to take legal action and filed a court case against them.
    • There were a number of court proceedings, following this and witnesses were presented and their testimonials were taken into account. Also, there were number of other evidences to support the claims. The criminals got convicted and were put behind the bars for a period of 10 years. Those, who were once part of a big happy family, were now standing in handcuffs as criminals on the other side.
    • Sadly, none of them had even the slightest remorse about their murderous act. It seemed that they had been transformed into some sinister beings, who cared about none and were hot headed all the time. After being convicted, they pledged to seek revenge from my family. The threat calls have not stopped a single day after this. It has been an emotional distress to my family, who has suffered enough and are under the impression, that any moment either them or any near one will lose life owing to the piece of land. They have reported to the police as well regarding but they have not paid attention and do not take any action.

    They are worried sick about me as well but are at bit of comfort since I am miles away, residing in Australia. They are now also threatening my family that if any chance I will land in my country they will straight away kill me or harm me.

    I am under immense stress as I can neither be with my family nor stay here at peace. The son in me wants to reach out and be there with my near ones whereas their worry only does not allow me to step further. I am having sleepless nights, in constant touch with them and feel helpless.

    I would like to stay here because I know if I go back to India I will be there definite target. I believe that I have safer future in Australia, as this country does not condone violence acts. That's is why I am applying for my protection visa.

1. A copy of the 2017 Witness Statement was again filed in the Tribunal by the applicant on 1 December 2020 ahead of the first review hearing in 2020.  

2. At the outset of the second review hearing, the applicant confirmed that the contents of the 2017 Witness Statement were all true and correct.  I have identified where the applicant’s evidence differs from the 2017 Witness Statement.

   Applicant’s Evidence at Hearing

   Background

3. The applicant was born in [City] in the State of Punjab, India on [Date].  He is now [Age] years old, single with no children.

4. His parents live in [City].  His father is retired from the [Employer] and works as a farmer, and his mother performs home duties.  The applicant has one younger brother born in [Year] who lives in [City] and works for [Employer].  The applicant is in daily contact with his parents by phone. He lived at his parent’s home in India until he came to Australia in 2014 to study at the age of [Age].

5. The applicant attended school in India, completing his secondary education in [Year].  After he left school, the applicant worked on his parent’s farm but was not paid for such work. In 2014 he left India and travelled to Australia on a student visa.

6. When asked why he left India to come to Australia in 2014, the applicant stated that he came to Australia to study, with the intention of completing a Bachelor of [Subject 1] at [University].    When he arrived in Australia, the applicant had to undertake a 6-month university preparation course, however he left that course after 3 months and changed to study at [College], where he completed a Certificate III and IV in [Subject 2] in about 2016 or 2017, then he ceased studying due to the cancellation of his student visa.  The applicant acknowledged that his student visa was cancelled because he had swapped to a different course contrary to his student visa conditions. 

7. When asked during the hearing if he had experienced any harm in India, the applicant claimed that he had experienced harm due to what happened in 2009, namely the land dispute between his father’s extended family, culminating in his uncle’s death.   

   2009 Land Dispute and subsequent events

8. The applicant outlined the following account in his oral evidence. His father, [Mr D], had 3 brothers – [Mr C (known as [Alternative spelling]), [Mr E] and [Mr A].  All 3 of [Mr D]’s brothers are now deceased.  They inherited agricultural land from their parents.  The water used for irrigating this land came from a waterwell on neighbouring land owned by cousins of the applicant’s father.  A dispute arose over irrigation between the applicant’s family and 5 neighbouring families, 2 of whom are the cousins of the applicant’s father, and 3 of whom live and work in the same village but are not related to the applicant.  The applicant’s father told his cousins to stop overwatering the crops, as it was causing them to rot, but they did not want to do that, so they pushed back and a dispute began. 

9. The applicant thinks he was [Age] when the dispute began. He and his brother were not named in or involved in the dispute.  At first the dispute was just verbal and then it escalated.  The father’s cousins made a false report to the local police claiming that every time they went to put the water on to irrigate their land they were beaten.  They also went to the hospital and made a claim that they had been injured so the doctor would write it up as an injury caused by a third party.  

10. One day in 2009, the police had been looking for the applicant’s father who had gone to the applicant’s mother’s village.  Before 3.30pm the applicant’s uncle, [Mr C], went to the police station to ask them to put a stay on seeking the applicant’s father as he was going to turn himself in to the police.  Around 3.30pm when [Mr C] was returning to the village with his brother [Mr A] and 2 of the applicant’s cousins, they stopped at a shop to pick up a water pump.  A person named [Mr F] and 5 other people were at a shop opposite where [Mr C] had stopped.  They called out to [Mr C] saying “We’ll show you how a stay is put on”.  They were being aggressive and preparing for a fight.  As [Mr C] stepped out onto the road, the others shot him in the head and he died.  After the shooting, [Mr F] and the others went back into the shop and pulled down the shutters.  The applicant claimed they were colluding with the police as they have strong political allies.  The police arrived within 5 minutes.  The police put the alleged perpetrators in the police car and they took [Mr C] to the hospital. 

11. The applicant was [Age] years old in 2009. When I asked the applicant how he knew about this incident, he claimed he was in the city with his mother getting supplies when they heard about the shooting from his other uncle, [Mr A].  The applicant and his family all went to the hospital but were told [Mr C] had died from a gunshot wound. 

12. The applicant claimed that [Mr A] is the only one in the applicant’s family who has direct knowledge of the incident and gave a statement to the police. I have concluded that [Mr A] is not the only one in the applicant’s family with direct knowledge of the incident, for reasons set out below.

13. The applicant claimed that [Mr F] and the others involved in the shooting, who comprised cousins of the applicant’s father and local villagers, were charged by local police with murdering [Mr C], but later the murder charges were dropped because of political pressure, and the charges were reduced to lesser charges because the accused persons were acting in self-defence. 

14. When asked how he knew the charges had been dropped or reduced because of political pressure, the applicant claimed that [Mr F] and the others are politically very strong and very active with one of the government parties in power in Punjab called Akali Dal. The applicant believes the accused persons used their political connections to persuade the police to reduce the charges to lesser charges because the brother of the local politician was in the court where the case was to be heard.

15. At first the applicant claimed that these men ([Mr F] & others) were found innocent and the only time they spent in jail was waiting for the court case, which lasted for around 4 years.  Then he changed his evidence to claim they were convicted, but because of claiming self-defence, they had already served the time for that offence, which is about 3 years, by the time the court case finished.

16. After the perpetrators were released from prison in 2013, the applicant claimed they came back to the village and carried on as normal, and they were fearless and thought they did not have to fear anything.  When I raised with the applicant that his 2017 witness statement claimed there was an agreement for the convicted persons to leave the village after they were released from prison, the applicant claimed that they were encouraged to leave the village and go to neighbouring villages to reduce the chance of altercations occurred.  Only [Mr F] and one other moved away but the other 3 remained in the village. 

17. The applicant claimed that after they were released from prison in 2013, the dispute over the land continued at a verbal level with constant arguments.  The applicant claimed the dispute remained ongoing and if their paths crossed with his family, they would get into constant verbal arguments and other villagers having to intervene.  [Mr F] and the other perpetrator came back to the village in 2014 after the applicant had left for Australia. 

18. According to the 2017 Witness Statement verbal threats had been made against the applicant’s family every day since 2013 when the perpetrators of [Mr C]’s death were released from prison.  When requested to provide details of these threats, the applicant claimed that the other side was saying “We’ve taken one of yours and we can do it again”, which is why his family is afraid, and that there is similar “threats being made back”.  When I clarified with the applicant whether he was saying his family were also making threats in return, the applicant confirmed that there have been threats back and forth between both parties to the dispute for the last decade.

19. When asked whether anyone had taken any action over any of these threats, the applicant responded that the people in the village around the parties are always intervening and urging them not to let things escalate. When asked if his family had reported these threats to the authorities, the applicant claimed that they had not done so because both parties are talking to the village elders who are working to keep the peace.

20. When asked if there were any more instances of violence between the applicant’s family and those convicted of killing [Mr C], the applicant responded that since 2013 there had been no physical violence, only been verbal arguments. 

21. I asked the applicant why he could not relocate to live somewhere else in India where he would be safe from the people who were involved in the dispute who were threatening his family.  The applicant replied that the family’s land is in the village so he did not know where he could go. 

22. I asked the applicant why he could not use his qualifications obtained in Australia to work somewhere else in India.  The applicant’s responded that he had not worked as [an Occupation 1], only as [an Occupation 2] in Australia, so he would have to work on the land in India.  When asked why he couldn’t obtain employment as [an Occupation 2] in India somewhere away from his village such as a big city, the applicant replied that it was not very socially acceptable to be [an Occupation 2] in India when your family owns land. 

23. The applicant claimed that in 2013 the persons convicted of his uncle’s death appealed against their conviction.  He believes that action is still in the courts. 

24. The applicant also claimed that in 2013 his uncle [Mr A] started a legal petition in the High Court against the penalty imposed on those convicted of killing his uncle.  The petition is still in the court system.  When asked if he knew why it was taking so long, the applicant said that it is a slow process. [Mr A] had been running the case from 2013 until his death in March 2023 but now the applicant’s father will be taking it over.

    Inconsistencies in evidence

25. I identified several inconsistencies between the applicant’s evidence before me and the 2017 Witness Statement relating to the shooting of his uncle which I raised with the applicant.

26. First was the inconsistency between the applicant’s evidence at the hearing that his father was not present when [Mr C] was shot, and the 2017 Witness Statement which stated that the applicant’s father was present when [Mr C] was shot.  In response, the applicant maintained that at the time [Mr C] was shot, the only people present from the applicant’s family were his uncles [Mr C] and [Mr A], and his cousins [Mr B] and [Mr G].  He claimed that when he was making the 2017 Witness Statement he must have written his father’s name by mistake.  This explanation seemed implausible given the extent of the details the applicant recounted about his father’s presence at the shooting in the 2017 Witness Statement and given the information in the court document ([Reference 2]) referred to later in these reasons indicating the applicant’s father was present at the shooting.

27. Second was the inconsistency between the applicant’s evidence at the hearing that [Mr C] was shot during a random stop to pick up a water pump, and the 2017 Witness Statement which stated that the shooting occurred during a pre-arranged meeting between the parties to the dispute for the purpose of trying to resolve the dispute.   In response, the applicant claimed that the discrepancy may have occurred because he didn’t understand well enough when he wrote the statement or maybe it was his language.  The applicant’s response did not address the inconsistency.

28. Third was the inconsistency between the applicant’s evidence at the hearing that [Mr C] was shot by a person named [Mr F], and the 2017 Witness Statement which stated that his uncle was shot by a random person. In response, the applicant claimed that [Mr F] did shoot his uncle, but the applicant put him down as a “random person”.  Again, the applicant’s response did not address the inconsistency.

29. Fourth was the inconsistency between the applicant’s evidence at the hearing that [Mr F[shot [Mr C] deliberately, and the 2017 Witness Statement which stated that a shot was fired in the direction of the applicant’s family and it struck [Mr C], suggesting that the shooting of [Mr C] was accidental not deliberate.  In response, the applicant claimed that when he said in evidence that [Mr F] fired towards [Mr C] he considers that is the same as [Mr F] firing in the direction of his family.  This seemed to be an attempt to argue around the inconsistency.

30. Fifth was the inconsistency between the applicant’s evidence at the hearing that the perpetrators got convicted and served only 3 years imprisonment, and the 2017 Witness Statement which stated that they got 10 years imprisonment.  In response, the applicant claimed that his father had told him that in India when you get sent to prison, they count a day and night separately, so prisoners end up serving less time, and in this case it was about 3.5 years.  The applicant claimed his father knew this because he had been sentenced to 6 months in prison but only served 3 months.  I accept the applicant’s answer may be plausible but I did not consider it necessary to verify it as it is unnecessary to the overall findings.

31. Sixth was the inconsistency between the applicant’s evidence at the hearing that his family did not report the subsequent threats of revenge to the authorities, and the 2017 Witness Statement which stated that his family did report the threats to the police, but the police did nothing about it.  In response, the applicant claimed that perhaps what he wrote in the 2017 Witness Statement is that his family went to the authorities in the past, but they didn’t do anything because his father’s cousins have political power.  Again, this response did not answer the inconsistency.

    Documents

32. The applicant claimed that he knew about the events from his family and whatever documents they provided to him, and at the time he lodged his protection visa application all the documentation he presented was the truth. When asked what documentation he was referring to, the applicant referred to the original reports to the police and the documents in the Indian High Court. 

33. When asked what original reports to the police he was referring to, the applicant claimed the document is with his parents and he could provide it if required.  I asked the applicant why he had not produced such document to the Department or the Tribunal if it has been available to him through his parents. The applicant’s reply was that he did not know they were needed. This answer seemed implausible.  I put it to the applicant that he had been asked by the Tribunal prior to the hearing in 2020 and again prior to the hearing in 2023 whether he had any documents to support his claims and he had answered in the negative both times on his hearing responses.  The applicant claimed that the documents he had already provided would be enough to support his claim.  

34. In support of his claims, the applicant identified copies of what purported to be two court documents related to legal actions in the Punjab and Haryana High Court of India in the Tribunal’s file.  The applicant claimed that the documents were prepared by [Mr A]’s lawyer who has since died, and that they set out the truth about his uncle [Mr C’s] death.

35. The document bearing the number [Reference 1] contains 2 parts – Grounds of Appeal and Memo of Parties. According to the Memo of Parties:

    a.the appellant is [Mr A] son of [Mr H];

    b.the respondents are the State of Punjab, [Mr F] son of [Mr I], [Mr I] son of [Mr J], [Mr K] son of [Mr L], [Mr M] son of [Mr L], and [Mr B] son of [Mr L].  

36. The Grounds of Appeal allege that [in] August 2009 at 3.30pm [Mr A], [Mr C], [Mr B] and [Mr G] were present when they were approached by [Mr F] and the other named individual respondents who were armed with various weapons including a firearm.  [Mr F] fired a shot towards them which hit [Mr C] resulting in his death. 

37. Essentially this document contains [Mr A]’s appeal against the conviction of [Mr F] and [Mr I] [in] September 2013 on charges other than murder, and claims the conviction should be overturned because the evidence supported conviction for murder, the remaining individual respondents had been wrongfully acquitted, and the sentences imposed on [Mr F] and [Mr I] were inadequate. This appears to be the petition referred to by the applicant as commenced by his uncle [Mr A].  Apart from some minor differences, there is general consistency between this document and the applicant’s version of the incident when his uncle died.

38. The document bearing the number [Reference 2] of 2013 contains 4 parts – Application for suspension of sentence pending appeal, Affidavit on [Mr B] in support, Grounds of Appeal and Memo of Parties.  According to the Memo of Parties:

    a.the appellants are [Mr B] son of [Mr N], [Mr A] son of [Mr H], [Mr O] son of [Mr B], [Mr P] son of [Mr B], [Mr D] son of [Mr H], [Mr E] son of [Mr H], [Mr Q] son of [Mr R], [Mr S] son of [Mr E], [Mr T] son of [Mr C];

    b.the respondent is the State of Punjab.

100.   [Reference 2] appears to be an appeal by the applicant’s father and his uncles [Mr A] and [Mr E] against their convictions [in] September 2013 for breaches of sections 148, 149, 323 and 326 of the Indian Penal Code[1] in relation to their involvement in the incident [in] August 2009 when [Mr C] was shot, and seeking suspension of their sentences pending appeal. 

[1] Indian Penal Code – s.148 (armed with a deadly weapon); s.149 (unlawful assembly); s.326 (voluntarily causing grievous hurt by dangerous weapons or means); s 323 (voluntarily causing hurt).

101.   This document indicates that on the same date as [Mr F] and [Mr I] were convicted of the death of [Mr C] ([September 2013]), the applicant’s father and uncles were also convicted of causing injury to [Mr I] during the same incident.  This document is largely consistent with the 2017 Witness Statement to the extent that the applicant’s father was present when [Mr C] was shot, and therefore inconsistent with the applicant’s evidence before me that his father was not present [in] August 2009. 

102.   According to the Affidavit of [Mr B], the appellants were wrongfully convicted because the court accepted the complaint of [Mr F] that the appellants were armed and drunk when they used weapons to cause injuries to [Mr I], resulting in [Mr F], acting in self-defence, firing his gun in the air hitting [Mr C] and killing him. 

103.   Whilst both documents have degrees of similarity with the applicant’s evidence before the Tribunal about what occurred [in] August 2009, they are generally more closely aligned with the 2017 Witness Statement.

104.   The documents look like court documents, however they are not signed and do not bear any marks that might be expected if they had been lodged in the Punjab and Haryana High Court such as court stamps or dates of receipt.   Although the delegate referred to the applicant having provided court transcripts, the documents before me are clearly not court transcripts and no transcripts were identified from the Department or Tribunal files.  Also, I note that the Tribunal in 2020 made no reference to these court documents in its reasons.

105.   I am unable to determine the authenticity of these documents.   No supporting evidence was provided from any person with direct knowledge of the contents of the documents, even though the applicant admitted that he is in regular contact with his father, who is the fifth-named appellant in [Reference 2], and is apparently now in charge of running the actions since his brother [Mr A]’s death.  It is reasonable to assume that the applicant’s father could have given evidence about what occurred [in] August 2009 and about the veracity of the contents of the court documents, however the applicant did not call any witnesses.

106.   Ultimately, whilst the documents give a level of corroboration to the applicant’s evidence about the 2009 incident when his uncle died, neither document provides any support for the applicant’s claim that those persons convicted and/or involved in his uncle’s shooting subsequently threatened the applicant’s family, which is an important part of the applicant’s claim for protection.  For that reason, I do not need to consider these documents further.

107.   The First Information Report dated [August] 2009 (FIR) lodged with the Tribunal on 26 April 2023 after the hearing is said to be a translation from Punjabi to English according to the applicant’s email to the Tribunal.  There is no certified translation in that it does not include the original Punjabi version of the document or a certification from the translator.  A partial red stamp is overlaid on the document, but the details are unreadable.

108.   According to the Department of Foreign Affairs and Trade current Country Information Report on India dated 10 December 2020 (DFAT Report), in order for the police to investigate a case and commence the criminal justice process, they must prepare a First Information Report (FIR).

109.   The FIR does refer to an incident [in] August 2009 at approximately [Time] and lists the persons involved.  It also purports to contain a statement from [Mr A] regarding the events of [August] 2009.  Although the statement is not signed, it is a version of events that is similar but not identical to the applicant’s oral evidence about what happened when his uncle [Mr C] was shot.  It does not contain any information about events occurring after [August] 2009.  As the provenance of the FIR has not been provided, and a certified translation from the original is not included, I give the FIR no weight.  Having said that, it neither adds to, nor detracts from the applicant’s claims when considered in light of the other available evidence.

Findings of fact re 2009 land dispute and subsequent events

110.   The applicant was not an accurate historian of the events leading to his uncle’s death in 2009. This appears to be because his knowledge is clearly based on information provided to him by others, and he was a teenager at the time of the incident.  However, during his oral evidence, I am satisfied that the applicant honestly tried his best to convey what he understood to have occurred from what he has been told by others over time.

111.   I am satisfied that the inconsistencies between his evidence to the Tribunal and his 2017 Witness Statement when trying to reconcile those inconsistencies during the hearing are a result of the applicant having no independent knowledge of the events.  Insofar as it refers to the events leading up to his uncle’s death in 2009, I prefer the 2017 Witness Statement as being a more accurate account of what happened, than the applicant’s evidence before the Tribunal.

112.   Insofar as the 2017 Witness Statement refers to the applicant’s family receiving daily threats after the conviction of those responsible for his uncle’s death, including threats to kill or harm the applicant if he returned to India, there are no details included about who made the threats or the nature of the threats. At the hearing, the applicant gave scant oral evidence about the nature of the threats, did not identify who made the threats other than to say that both parties to the dispute made threats against each other, and he did not provide any corroborating evidence from any of his family members who allegedly received the threats.  For these reasons I do not find the applicant’s evidence to the Tribunal (either his 2017 Witness Statement or his oral evidence) about such threats to be credible. 

113.   On the available evidence before me, I accept the following as facts related to the land dispute and the 2009 incident resulting in the applicant’s uncle’s death:

a.in or before 2009, the applicant’s father and uncles inherited land in or near the village of [City], and they subsequently became involved in a verbal dispute with their neighbouring cousins regarding irrigation across their adjacent landholdings;

b.[in] August 2009, a violent confrontation occurred between the applicant’s family (his father, uncles and cousins) and his father’s cousins and their associates, culminating in the applicant’s uncle [Mr C] being shot and killed by [Mr F], a member of the opposing group;

c.the applicant was not involved in the land dispute or the violent confrontation that led to his uncle’s death;

d.the applicant’s family made a complaint to the Indian police about [Mr C]’s death which led to the arrest of [Mr F] and others;

e.[Mr F] and others were convicted of the death of the applicant’s uncle [Mr C] and sentenced to terms of imprisonment;

f.the applicant’s uncle [Mr A] lodged a petition in the High Court in 2013 appealing against the convictions and sentences of the perpetrators as insufficient for killing [Mr C];

g.between 2013 and 2014 [Mr F] and the others involved in [Mr C]’s death [in] August 2009 returned to live in the applicant’s village;

h.since 2013 the parties have continued to engage in verbal disputes with each other;

i.between 2013 and 2014 verbal threats of revenge were made against the applicant’s family; 

j.no further violence has been inflicted upon the applicant’s family since 2009;

k.the applicant left India in 2014 to study in Australia;

l.no further threats have been made against the applicant’s family since about 2014.

Incident in 2017

114.   The applicant gave evidence that in 2017 he was at a nightclub in [Suburb 1], Western Australia when he observed a fight between 2 people as he came out of the nightclub.  There were 4 or 5 people present.  One of the people present was a friend of the applicant. Apart from recognising his friend, the applicant recognised some of the others by face only, not by name.

115.   The applicant said he tried to stop the fight. The next day the applicant received a phone call from [Mr U], a friend of the applicant, asking for the names of the people who were involved in the fight. The applicant told [Mr U] he didn’t know anything and didn’t want to be involved.  [Mr U] later came to the applicant’s house in [Suburb 2] with 3 other people, all of whom were known to the applicant.  [Mr U] again asked for the names and details of the people involved in the fight.   The applicant said he didn’t know them.

116.   [Mr U] and the others started abusing the applicant.  They attacked him physically.  They forced him into their car and kidnapped him.  They used the applicant’s phone to call the person they were after and asked to meet that person in [Suburb 3].  When that person refused to meet them, they took the applicant by car to [Suburb 3].  They had weapons and a gun.  They hit and beat the applicant. He got bruises all over his body.  Then they said there is a group of them who organise events and told the applicant he was not allowed to go to their events.  When the applicant agreed they dropped him off at train station in [Suburb 3].  From there the applicant went to the home of a friend living nearby who took him to [Suburb 3] police station. The applicant made a complaint and a statement to the police about what had happened. 

117.   When asked what happened to the men who had kidnapped him, the applicant claimed that [Mr U] was arrested by the police, but the other 3 people had absconded, and the police couldn’t find them.  Later they arrested [Mr V] in [Suburb 4] using the police helicopter.  Later in evidence, the applicant stated that [Mr U] was arrested about 3 months after the complaint to the police. Three of these men were illegally in Australia and apparently ended up in immigration detention.

118.   Sometime later, the applicant claimed that he received phone calls from people in India telling him to retract his statement to the police.  When asked who had called him, the applicant said he was not sure who called him but then mentioned a person called [Mr V], who he described as notorious, very active in India and has been in prison, and a person named [Mr W], who he described as another dangerous person.  When asked why he mentioned those 2 people, the applicant then claimed [Mr W] was the one who called him demanding [Mr V]’s name be removed out of the police case.  The applicant said [Mr V] was one of the 4 men who kidnapped him in Australia and was the first to assault him the day he was kidnapped. 

119.   When asked how many phone calls he received containing threats about this incident, the applicant claimed that [Mr W] called him about 2 or 3 times in total.  When asked if anyone else had called him regarding his complaint to the police, the applicant replied in the negative.  The applicant said he had not received any phone calls from anyone about the 2017 incident since the police case ended in 2019. 

120.   The applicant claimed he had not seen any of the 4 men since the incident he reported in 2017 because initially he took out restraining orders against them for a few months with help from the police, and 3 of them were in detention.

121.   When asked why he feared persecution in India on account of these events from 2017 to 2019, the applicant claimed it was because he didn’t withdraw his police complaint when they threatened him.  When [Mr W] called him, [Mr W] was in prison at the time and the applicant thought these people had some considerable power. 

122.   The applicant did not know [Mr U] or [Mr V] before he came to Australia.  When asked why he fears persecution from [Mr U] or [Mr V] if he returned to India, the applicant claimed that because of his previous friendship with [Mr U], they know all about the applicant, and where his family’s home is located in India.

123.   The last time the applicant heard of [Mr V], he was in a detention centre as an illegal person, but he doesn’t know where he is now.  The applicant believes [Mr U] is living in Perth as a permanent resident.    They don’t move in the same circles anymore, but they do have quite a few mutual friends.  The last time the applicant heard from [Mr U] was in 2019.

124.   I note there are some inconsistencies between the applicant’s evidence about this incident is and his previous evidence to the Tribunal.  Most notably, in 2020 the applicant claimed that the person who called him, came to his home demanding information from him and then kidnapped and assaulted him was his very good friend [Mr X].  He also alleged that his family had received threatening calls in India.  Before me, the applicant claimed his friend involved in his kidnapping was [Mr U], and he did not give any evidence that his family had received any threatening calls.  The applicant’s evidence is lacking in credibility.

125.   The applicant did not provide any documents to support his claim that he made a police report in 2017 about being assaulted, kidnapped and threatened by a group of people, or that he had obtained restraining orders against any of them.  However, I have accepted that he made a complaint to the police about what happened to him in 2017.

126.   Based on the evidence before me, I accept that in relation to the 2017 incident:

a.in late 2017, the applicant witnessed a fight at a nightclub in Western Australia;

b.the following day, the applicant’s friend and his associates (including [Mr V]) confronted the applicant at his home seeking information about those involved in the fight.  When the applicant refused to provide any information, he was assaulted, kidnapped from his home and threatened with further harm by these people;

c.the applicant made a report about what happened to him to WA Police, resulting in these people being arrested and charged, three of whom were placed in immigration detention for being in Australia illegally;

d.the applicant subsequently received 2 to 3 phone calls from [Mr W], an associate of [Mr V], threatening the applicant to withdraw his complaint against [Mr V];

e.the last threatening call the applicant received related to the 2017 incident was towards the end of 2019.

IS THE APPLICANT A REFUGEE?

2009 land dispute and subsequent events

127. The applicant does not claim to have left India due to fear of persecution by reason of the refugee criterion of race, religion, or nationality in accordance with s 5J(1)(a) of the Act. I am satisfied that he did not leave India due to fear of persecution for reasons of his race, religion or nationality.

128. Based on the applicant’s evidence that he was not involved in the land dispute, or the events [in] August 2009, and was not a recipient of threats made against the applicant’s family after 2013, I find that the applicant was not persecuted and did not suffer harm in India prior to coming to Australia for any of the refugee criterion in s 5J(1) of the Act.

Political opinion

129.   To the extent that the applicant claimed that the perpetrators of his uncle’s death used their political connections to influence either the police investigation or the criminal prosecution relating to the shooting incident [in] August 2009, these do not amount to a fear of persecution arising from a political opinion: Jarrin v MIMA [1998] FCA 765.

Membership of a particular social group

130. I have considered whether the applicant’s claim falls to be assessed on the remaining refugee criteria in s 5J(1)(a) of the Act being membership of a particular social group, which in this case would be his family.

131. Based on the applicant’s evidence which I have accepted, I find that the applicant’s fears of being persecuted in India are the result of his membership of a particular social group comprising his family, by reason of the land dispute involving his father’s family, which culminated in the violent death of his uncle in 2009, and the subsequent threats of revenge against his family. I am satisfied that the applicant holds a genuine fear of persecution as required in s 5J(1)(a) of the Act by reason of his membership of a particular social group comprising his family.

132. Section 5K of the Act provides that for the purposes of the application of the 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.

133.   In STCB v MIMIA [2006] HCA 61 at [26] and [29], the High Court of Australia held that the Tribunal is required to consider the following questions before determining that an applicant’s fear of persecution must be disregarded:

a.whether any other member or former member of the applicant’s family had been persecuted in the past or had a fear of persecution;

b.if so, what the reason for that persecution was; and

c.whether the reason is one of the five refugee reasons.

134.   Based on the applicant’s own evidence which I have already accepted, I find that:

a.the applicant’s father and his three uncles have experienced a fear of persecution and persecution in the past in India;

b.the reason for their fear of persecution and persecution was the land dispute, culminating in the violent shooting death of the applicant’s uncle [in] August 2009 and subsequent threats of revenge against the applicant’s family by those convicted for the shooting; 

c.the reason for the fear of persecution and the persecution was therefore not for one of the refugee criterion of race, religion, nationality, membership of a particular social group or political opinion set out in s 5J(1) of the Act;

d.the fear of persecution and persecution experienced by the applicant’s father and uncles is to be disregarded in determining whether the applicant has a well-founded fear of prosecution by reason of his membership of a particular social group consisting of his family in accordance with s 5K(a) of the Act.

135. The applicant did not claim, nor did he give any evidence that he or any other member or former member of his family had experienced any fear of persecution or persecution in India for any reason other than the 2009 land dispute and subsequent events. Consequently, the applicant’s claimed fear of persecution would not exist were it not for the fear of persecution or persecution experienced by his family as a result of the 2009 land dispute and subsequent events in accordance with s 5K(b) of the Act.

136.   I am satisfied that the applicant’s claimed fear of persecution arising from the 2009 land dispute culminating in the shooting death of his uncle and the subsequent threats of revenge against his family is not for one of the refugee reasons in s 5J(1)(a) of the Act (race, religion, nationality, membership of a particular social group or political opinion) and is to be disregarded by the Tribunal.

137. It follows that I find that the applicant does not have a well-founded fear of persecution pursuant to s 5J(1) of the Act.

2017 incident

138.   The applicant’s evidence relating to the threats made against him following the 2017 incident was vague and unconvincing.  The applicant received 2 to 3 calls from a person named [Mr W].  He did not give any evidence about the nature of the threats allegedly made to him other than he was to withdraw his complaint against [Mr V].  He did not give any evidence that his family had received calls from “people in India” threatening to do harm to him if he returned to India over his report to the WA Police about the 2017 incident.  He did not report the threats to the WA Police, suggesting he did not consider the threats to be significant.  He has no corroborating evidence of receiving any threats.

139.   Significantly, the applicant said that the last threat he had received from [Mr W] was in 2019, and he has heard nothing since from anyone about the 2017 incident.  There is no other evidence before the Tribunal to suggest that the applicant is likely to suffer harm from those who last threatened him 5 years ago.

140.   A fear of persecution is not well-founded if it is merely assumed, or if it is mere speculation: MIEA v Guo (1997) 191 CLR 559 at 572. Having regard to the evidence which I have already accepted above regarding the 2017 incident, I find that the applicant’s claimed fear of persecution in India based on the threats arising from the 2017 incident is mere assumption or speculation, and therefore is not well-founded.

141. It follows that I find that the applicant does not have a well-founded fear of persecution for any of the refugee reasons in s 5J(1)(a) of the Act (race, religion, nationality, membership of a particular social group or political opinion) if he returns to India now or in the foreseeable future in accordance with s 5J(1) of the Act.

Conclusion

142. For all the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

IS THE APPLICANT ENTITLED TO COMPLEMENTARY PROTECTION?

143. Having found that the applicant does not meet the refugee criterion, I have considered the alternative criterion, namely whether the applicant is entitled to complementary protection under section 36(2)(aa) of the Act in relation to either the 2009 land dispute or the 2017 incident claims.

Claim arising from 2009 land dispute and subsequent events

144. Whilst s 5K of the Act required the Tribunal to disregard any fear of persecution or persecution experienced by members of the applicant and the applicant’s family in determining whether the applicant had a well-founded fear of persecution by reason of his membership of a particular social group comprising his family, s 5K has no application in considering whether the applicant is entitled to complementary protection pursuant to s 36(2)(aa) of the Act. This means that the evidence I disregarded in relation to the 2009 land dispute and subsequent events when considering the refugee criterion pursuant to s 36(2)(a) can now be regarded.

145.   Based on the evidence analysed above, I find that:

a.the applicant was a teenager and not involved in the 2009 land dispute or subsequent events and threats;

b.the applicant did not personally experience past harm in India in the form of a fear of persecution or persecution as a result of the 2009 land dispute, subsequent events and threats;

c.the applicant’s father and uncles did experience past harm in India in the form of a fear of persecution or persecution as a result of the 2009 land dispute, subsequent events and threats; 

d.the applicant’s evidence about the threats received by his family from 2013 to 2014 from those seeking revenge against the applicant’s family were vague and lacking in detail about both the nature of the threats and the identity of those making the threats;

e.there was no further violence between the parties to the land dispute since the 2009 shooting, and no further threats were received by the applicant’s family since 2014.

146.   Given that the applicant was never directly involved in the land dispute or the subsequent events and threats probably due to his age at the time, the fact that 15 years have passed without any violence between the parties to the land dispute and almost 10 years have passed since the last threat was made to the applicant’s family, and having regard to the lack of detail about the threats made, there is no evidence to suggest that the applicant would be at risk of harm now as a result of either the 2009 land dispute or the subsequent associated events and threats if he returned to India. 

147. Even assuming that the verbal dispute between the applicant’s father and his cousins and neighbouring landowners remains ongoing as claimed by the applicant, and assuming the applicant did receive threats of harm upon his return to India, there is no evidence to suggest that the applicant would be at risk of significant harm as that is defined in the Act, or that he would not be able to access effective protection from state authorities or others. The DFAT Report indicates that state protection is available from the Indian police, albeit that effectiveness is hampered by lack of resourcing and infrastructure (see para 5.6), and official corruption and political interference is prevalent (see para 5.9). Similarly there is a judicial process with an independent judiciary to adjudicate civil disputes and criminal charges, although many perceive the services as slow and ineffective (see para 5.15).

148.   According to the applicant, the parties to the land dispute and subsequent events and threats have continued their verbal dispute and the village elders have successfully intervened to keep the parties in line without police involvement.  The Indian police did act on [Mr A]’s complaint over the shooting of [Mr C], and the accused persons were arrested, charged and convicted of [Mr C]’s shooting, albeit the process took 4 years.  This suggests there is effective state protection available to the applicant in India if he reports any threats of harm to himself or his family.

149. Having regard to all these considerations, I find that there is no real risk that the applicant will be subjected to any form of harm resulting from an act or omission by which he will suffer arbitrary deprivation of his life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment as significant harm is defined in the Act.

150.   I find that there are not 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 that the applicant will suffer significant harm as a result of threats arising from the 2009 land dispute and subsequent events and threats.

Claim arising from 2017 incident

151. Based on my findings about the 2017 incident above, I find that there is no real risk that the applicant will be subjected to any form of harm resulting from an act or omission by which he will suffer arbitrary deprivation of his life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment as significant harm is defined in the Act.

152.   I find that there are not 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 that the applicant will suffer significant harm as a result of threats arising from the 2017 incident.

Conclusion

153. For the reasons above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

IS THE APPLICANT A MEMBER OF THE SAME FAMILY UNIT?

1. There is no suggestion that the applicant satisfies s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or s 36(2)(aa) of the Act and who holds a protection visa.

155. The applicant does not satisfy the criterion in s 36(2) of the Act.

DECISION

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

Karen Vernon
Senior Member

1ATTACHMENT  -  Extract from Migration Act 1958

25 (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.

…

35H    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.

…

45J     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.

55K    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.

65L    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.

75LA 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.

…

836     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.

…