2216393 (Refugee)

2216393 (Refugee) [2024] AATA 1300 (17 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Iqbal Chaudhry
CASE NUMBER:  2216393
COUNTRY OF REFERENCE:                   India
MEMBER:David James
DATE:17 January 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 January 2024 at 10:55am
CATCHWORDS
REFUGEE – Protection Visa – India – religious beliefs– a follower of Rampal – applicant was properly invited to a hearing – applicant failed to attend hearing – applicant didn’t provide any additional information and/or evidence – applicant’s fears of persecution are not well-founded – delay in applying for protection in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 56, 426, 499
Migration Regulations 1994, Schedule 2
CASES
ABT16 v Minister for Home Affairs [2019] FCA 836
Anadaraj Subramaniam v MIMA (1998) VG310
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 September 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of India, applied for the visa on 13 April 2018. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to India, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 17 September 2019. The applicant provided a copy of the delegate’s decision with the application for review.
The Tribunal affirmed the delegate’s decision, and that decision was set aside by consent by the Federal Circuit and Family Court of Australia (Division 2) at Brisbane on [date November] 2022. The matter is now before the Tribunal pursuant to an order of that Court.
The applicant was represented in relation to the review by Mr Chaudhry of MIC Lawyers.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’, and circumstances in which a person will be taken not to have such a fear, are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. 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: MIAC v SZQRB (2013) 210 FCR 505.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Issues
The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to India they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Documentary evidence before the Tribunal
The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents that have been considered by the Tribunal:
·The applicant’s protection visa application submitted on 13 April 2018, the annexed ‘My Claims for Protection’ document in which he outlined his claims for protection, and the annexed copy of the applicant’s bio data page of his Indian passport. In the applicant’s ‘My Claims for Protection’ document he, in part and at paragraphs 8 to 14 and 17, stated that:
I am a born Hindu.
I started following Jagat Guru Ram Pal Jee MAHARAJ, as I was in the impression that I was on the right path with him.
But fundamentals in India did not like me following him and started threatening me. They told me stop following Jagat Guru Ram Pal Jee MAHARAJ otherwise I will be killed.
With my leader in the prison, the followers have been harassed and tortured frequently and my life will be in danger if I had stayed in India. Therefore, I decided to leave India to avoid this situation.
Since I got an Australian Tourist Visa I thought that it was more practical for me to leave India and stay in this peaceful country, Australia without any fear whatsoever.
I will provide detailed account later on.
There is no safety in India as anarchy and restless is on the rise and India as a State does not have enough resources to cope with all these problems. They get so many complaints like this and do not take them seriously…
I strongly believe that my life would be at risk once and if I am go back to India.
·Copies of media reports forwarded to the Department by the applicant on 2 September 2019, titled: ‘Haryana: Self-Styled Godman Rampal found guilty in two murder cases’ (Times of India report of 11 October 2018); ‘Hisar on edge as verdict in 2 murder cases against Rampal on Thursday’ (TNN report of 11 October 2018); and, ‘India guru Rampal sentenced to life in jail form murder’ (BBC report of 16 October 2018);
·The applicant’s application for review lodged on 17 September 2019 and the annexed delegates decision record of 3 September 2019;
·The administrative and movement records of the Department relating to the applicant; and
·An Order of the Federal Circuit and Family Court of Australia (Division 2) at Brisbane on [date November] 2022 in the matter of [deleted], in which, by consent, the court noted that:
The first respondent concedes that the decision of the second respondent is affected by jurisdictional error on the basis that the second respondent failed to engage in an active intellectual process in respect of claims raised by the applicant and thereby failed to undertake its statutory task of review as required by s 414 of the Migration Act 1958 (Cth).
Claims for protection
The applicant, in his visa application, referred to his attached two-page, typewritten ‘My Claims for Protection’ document outlining his claims for protection. In that document, he states that he was born Hindu, has completed year 12 at [a] School in India, and is unemployed. The applicant’s claims for protection (as summarised) are that:
·He started following Jagat Guru Ram Pal Maharaj (Rampal), as he was of the impression that he was on the right path with him;
·The fundamentals in India did not like him following Rampal and started threatening him, telling him to stop following Rampal, otherwise he would be killed;
·With his leader Rampal in prison, Rampal’s followers have been harassed and tortured frequently, and his life would be in danger if he had stayed in India. Therefore, he decided to leave India to avoid that situation;
·Since he got an Australian tourist visa, he thought that it was more practical for him to leave India and stay in Australia, which is peaceful and where he can reside without fear;
·There is no safety in India, as anarchy and restlessness is on the rise, and India as a State does not have enough resources to cope with all these problems. Indian authorities get so many complaints like this and do not take them seriously; and
·He strongly believes that his life would be at risk once, and if, he goes back to India.
He further stated that he would ‘provide a detailed account later on’.
Department interview
The applicant was interviewed by the Department on 15 April 2019.
Delegate’s decision
The delegate’s decision of 3 September 2019 to refuse the protection visa was made on the information before the delegate. The delegate accepted that the applicant was a follower of Rampal and was present when Rampal was arrested, at which time the applicant was hit on the head with a stick by police. The delegate also accepted that the applicant has a subjective fear of returning to India. However, the delegate did not accept that the applicant is a devout follower of Rampal and that he had or has any significant profile relating to being a follower of Rampal or that he has received any specific threats. With reference to country information, the delegate also found that there are housing and employment opportunities, and no barriers to the applicant relocating based on the applicant’s faith. Therefore, the delegate found that the applicant could relocate to Delhi. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. For the same reasons the delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to India, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Remit of first constituted Tribunal’s decision
As outlined above at paragraph 4 of this Decision Record, the first constituted Tribunal affirmed the delegate’s decision, and that decision was later set aside by consent, by the Federal Circuit and Family Court of Australia (Division 2) at Brisbane on [date November] 2022.
Notification of Reconsideration of Application for Review
On 9 November 2022, the Tribunal notified the applicant through his nominated representative and authorised recipient, MIC Lawyers, that the Federal Circuit and Family Court of Australia (Division 2) had remitted his application for review to the Tribunal and that there would be a reconsideration of his application for review. The applicant was further notified, in this regard, that his case would be re-allocated to a member who may; seek further information; seek your comments or a response to particular information; invite him to attend a hearing; and make a decision. This correspondence also provided in part that:
It is important that you tell us immediately if you change your contact details (such as your residential address, mailing address, telephone number, fax number or email address). If you have a representative or authorised recipient, it is also important that you inform them of any change in your contact details. If you do not, you may not receive an invitation to a hearing or other important information and your case may be decided without further notice.
Further, on 9 November 2022, the Tribunal telephoned the applicant on his mobile number of [deleted], and with the assistance of a Hindi interpreter asked the applicant to confirm his postal, email and contact number details together with the details of his nominated representative and authorised recipient. The applicant in this conversation confirmed his details as being those held by the Tribunal, including his mobile number of [deleted] and that his nominated representative and authorised recipient was Mr. Chaudhry of MIC Lawyers.
On 14 November 2023, the Tribunal emailed the applicant’s nominated representative and authorised recipient, MIC Lawyers informing them that the applicant’s file was being prepared for allocation to a Tribunal Member and that this may result in a hearing being scheduled. This correspondence also stated in part, that:
If the applicant has any addition evidence that is relevant to their application, please send this to us as soon as possible.
If the details of the applicant’s representative have changed, please provide the Tribunal with the current details of the applicant’s current representative as soon as possible.
Please also complete and submit a pre-hearing information form within 7 days of receiving this email. We use this form to collect information about the applicant’s availability to attend a hearing, the likely number of attendees, and any other information which will help us determine the most appropriate way to conduct the applicant’s hearing if one is required…
Please note: once a hearing date has been set, we will only change the date if we are satisfied that there is a very good reasons to do so…
Invitation to attend hearing
On 20 November 2023, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 16 January 2024 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application but that it 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. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
On 27 November 2023, the Tribunal received an email from the applicant’s nominated representative and authorised recipient, in which they attached the applicant’s completed ‘Response to hearing invitation form’. This form indicated that the applicant would be attending his scheduled hearing and provided his contact mobile phone number of [deleted] and an email of [email], together with his nominated representative and authorised recipient, Mr Chaudry and his contact number of [number] and email of [email]. This form also indicated that the applicant requested an interpreter in the Hindi language and that there were no further documents that would be relied upon by the applicant at the hearing, nor would there be any other witnesses other than the applicant. The form was signed by the applicant’s nominated representative and authorised recipient, Mr Chaudhry, and dated 27 November 2023.
On 9 January 2024, the Tribunal sent a SMS Hearing Reminder to the applicant’s mobile telephone number of [number] (the mobile number which had provided on his application for review form, which had also been confirmed by the applicant as his mobile phone number with the Tribunal on 9 November 2022, and most recently been recorded on his ‘Response to hearing invitation form’). The message read:
Reminder – Your AAT hearing is on 16/01/24. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.
The delivery of this SMS reminder failed.
On 15 January 2024, a further SMS Reminder was forwarded by the Tribunal to the applicant’s mobile number, which read:
Reminder – Your AAT hearing is on 16/01/24. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.
The delivery of this SMS reminder also failed.
Review hearing - 16 January 2024
The applicant and his nominated representative and authorised recipient did not appear before the Tribunal on the day and at the time and place of the scheduled hearing.
At 9:26 am on the morning of the hearing, the Tribunal telephoned the applicant’s nominated representative and authorised recipient’s office. The Tribunal was informed that Mr Chaudhry was not present in their office but could be contacted on his mobile number. The Tribunal then called Mr Chaudhry on his mobile number, who told the Tribunal Officer that he had been trying to contact the applicant since having received the hearing invitation but that he had been unable to do so. In reply to the Tribunal Officer asking him why had had not notified the Tribunal earlier of him having had no recent contact with the applicant, Mr Chaudhry did not provide any explanation and apologised. Mr Chaudhry told the Tribunal Officer that he had not attended the Tribunal’s Brisbane Registry for the hearing as he was in New South Wales.

The applicant’s nominated representative and authorised recipient was then informed that the Presiding Senior Member was directing Mr Choudhry to provide to the Tribunal a Statutory Declaration outlining the details of his recent contact with the applicant and why he had not earlier informed the Tribunal that he was no longer in contact with the applicant.
At 9:35 am on the day of the scheduled hearing, 16 January 2024, the Tribunal also telephoned the applicant’s mobile number of [number]. This call was not answered by the applicant and a recorded message stated that: ‘the number dialled is not answering.’
At 11:14 am on 16 January 2024, the day of the scheduled hearing, the Tribunal received an email from Mr Chaudhry, which identified himself as the Principal of MIC Lawyers and in which he attached a Statutory Declaration under his hand, declaring in part that:
I am Solicitor acting in the matter of [applicant’s name], for case number 2216393.
Upon receipt of the hearing invitation concerning this matter, diligent attempts were made to establish contact with o9ur client through email and telephone messages. Unfortunately, no response was received. We acknowledge that it was our responsibility to inform the Administrative Appeals Tribunal (AAT) about our client’s unresponsiveness. It is with sincerity that we acknowledge our oversight in failing to inform the Administrative Appeals Tribunal (AAT) promptly. This oversight occurred due to the holiday break and a subsequent surge in workload during the first week afterward. We recognise the gravity of our omission and sincerely apologise for any inconvenience int may have caused.
At 11:17 am on 16 January 2024, the Tribunal received another email from Mr Chaudhry, in which he stated that:
Following our previous email, we offer our sincere apologies for the delay in sending the Statutory declaration. Reason being that I was outside office stuck in another legal matter.
Also. Please convey our sincere apologies to Honourable member for not informing AAT for unresponsiveness of our client.
At 12:08 pm on the scheduled hearing day, 16 January 2024, the Tribunal forwarded a further email request for additional information to the applicant’s nominated representative and authorised recipient, requesting information as to their most recent contact with the applicant. Mr Chaudhry, the applicant’s nominated representative and authorised recipient, in an email reply, which was received by the Tribunal at 4.46 pm on the same day, stated that:
I have been trying to find out as to when and how did our client contact us last. Most of the time he used to contact via normal phone, or sometimes via WhatsApp. I don’t remember him contact me in the last 2 to 3 months. There is no log history of his calls on my phone.
Our staff tried to make contact via office phone as well as email, but no response.
Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with the invitation sent via email to the email address of the applicant’s nominated representative and authorised recipient as had been recorded and confirmed with the Tribunal as outlined above at paragraph 21. Given these circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
Country information
The Tribunal has taken into account the DFAT Country Information Report India, 29 September 202s, as relevant, including the information under the heading of ‘Demography’ at 2.7 to 2.9, it is reported at 2.7 that:
India’s 1.4 billion people are ethnically and linguistically diverse. According to the CIA World Factbook, more than 85 per cent of the population is aged 54 years or younger, with a median age of under 29 years. About 36 per cent of the population lives in urban areas. India’s main cities are very large, with 32 million people living in New Delhi and more than 20 million in Mumbai. Several other cities have a population above 10 million.
Under the heading of ‘Employment’ at 2.33 to 2.37, it is reported at 2.34 to 2.37 that:
Most Indians work in the informal sector (that is, without contracts and other legal protections, often as day labourers). The agriculture sector in India is large – approximately 44 per cent of workers participate in that sector, according to the ILO. Many of those working in the agricultural sector of rural India in general are daily wage workers. Employment in the ‘gig economy’ (for example, driving an Uber) is also an option for many Indians.
According to an analysis published by the Brookings Institution in July 2020, most informal workers work for small businesses, many of which supply goods and services to other businesses, such as those in manufacturing or agriculture. Men in rural areas can often find informal work in agriculture, however it depends on the season and locally determined employment opportunities. Most agricultural businesses are small and do not have significant economies of scale or large numbers of people employed.
There is a strong cultural commitment to education in India, however many educated young people struggle to find employment, with an oversupply of university graduates, particularly in certain disciplines like engineering. According to Azim Premji University’s Centre for Sustainable Employment’s 2021 State of Working in India report, the graduate unemployment rate is 33 per cent (42 per cent for women), much higher than the total youth unemployment rate, which is approximately20 per cent. The sheer number of young graduates competing for work, the large informal sector and poor standards in some educational institutions leave many graduates unemployed, yet unwilling to take jobs in non-professional fields and still carrying student debt. Those with good connections or who are already from the upper classes are much more likely to be able to get a graduate job.
The IT sector is booming, and many young Indians find work there if they have the right qualifications and are willing to relocate to cities such as Bengaluru (Bangalore), which have fast growing IT industries. Labour market trends are complex: some sources point to a ‘brain drain’ as young Indians seek opportunities abroad. However, some members of the Indian diaspora return to India to engage in the technical sector, particularly if they had relocated to lower income countries in the first place (‘reverse brain drain’).
Under the heading of ‘Social welfare’ at 2.38 to 2.41, it is reported that:
Social welfare is traditionally provided within the family and many Indians rely on family for support in times of need. It is common for Indian families, even in poor and remote areas, to save what they can in physical cash or jewellery, which might be for the payment of future dowries or family emergencies.
Some social welfare programs exist. For example, those living in extreme poverty in rural areas might be offered employment by the government or benefit from state distribution of staple foods. Other more specific programs also exist, for example the Ujjwala scheme provides free liquid petroleum gas connections for people from disadvantaged caste and tribal backgrounds. Some local and state governments also have programs that might provide specific food or fuel aid. Eligibility criteria for welfare schemes are complex and vary by location; access to such schemes should not be assumed. Even if eligible, subsistence on social welfare schemes alone is not possible.
Religious charity is another source of social welfare. Sikh gurdwaras (places of worship) are particularly well-known for providing food and accommodation and sometimes health care, including to non-Sikhs. The Christian community is also very active in providing health care, education and other social services.
Most Indians in poverty would attempt to find work in the informal sector to meet their immediate needs if possible. Social housing programs are inadequate to meet demand in large cities, many of which have high housing costs. While the middle class is rising quickly, as inequality gaps intensify, many people nevertheless live in makeshift homes and slums. DFAT assesses that while social welfare programs might exist, eligibility is complex and access should not be assumed. If eligible, a person will most likely need to supplement those payments or subsidies to meet living needs.
Under the heading of ‘Security Situation’ at 2.47 to 2.48 it is reported that:
Overall, most Indians are not exposed to significant security threats on a day-to-day basis. There are some exceptions in specific, remote areas, which are covered below. Those that live in cities may be exposed to civil unrest, including violent rioting, which occurs from time to time across the country. Drivers of civil unrest are complex and varied and can include ethnic and religious tensions, insurgencies and terrorism and political and ideological violence. For the most part most Indians will avoid being in such situations.
Misinformation spread on social media occasionally leads to violence. Rumours spread using social media platforms, such as Facebook, Snapchat, Twitter, WhatsApp and YouTube, about alleged crimes leading to occasional vigilantism. These events are unpredictable, however tend to be localised.
Under the heading of ‘Religion’ at 3.9 to 3.12, it is reported that:
According to 2011 census data (the most recent available), almost 80 per cent (more than 1 billion people) of the population of India is Hindu. Another 14.2 per cent of people are Muslims (just under 200 million), 2.3 per cent are Christians (around 27 million), 1.7 per cent are Sikhs (just under 21 million) and less than 1 per cent are Buddhists (just under 10 million). A further 1.3 per cent (around 18 million) follow other religions including Jain, Zoroastrian, Jewish and Baha’i faiths, and tribal religions. Muslims, Sikhs, Christians, Buddhists, Jain and Zoroastrians (Parsis) have been notified as minority communities under Section 2 (c) of the National Commission for Minorities Act, 1992.
The constitution prohibits religious discrimination and guarantees the right to freely practise religion and the right for religions to manage their own affairs. The constitution guarantees the right to propagate a religion except where that would affect the operation of some state laws. For information about conversion laws and policies in practice in some states, see Conversion and anti-conversion laws.
Both religious pluralism and communal violence have a long history in India. The situation has evolved in recent years with new political movements and the adoption of technology that can be used to disseminate information, and the use of social media to incite violence.
Research by the Pew Research Center published in June 2021 found that 84 per cent of people say that to ‘be truly Indian’ it is important to respect all religions. The same research found that more than 85 per cent people in each of six major religious groups surveyed (Hindus, Muslims, Christians, Sikhs, Buddhists and Jains) felt that they were free to practise their own religion, and most of those agreed that other religious groups were similarly free to practise their religions. According to the survey, communal violence, while often high-profile events that are covered extensively in the media, are not day-to-day issues for most Indians.
Under the heading of ‘Police’ at 5.4 to 5.8, it is reported at 5.4 and 5.8 that:
The Constitution of India devolves responsibilities for police and public order to the states. According to sources, many Indians will choose not to contact the police, even if they are victims of crime. The 2019 Status of Policing in India Report found that two in five police officers surveyed said that people were hesitant to rely on them. The 2018 version of the same report found that only one in five of more than 15,000 people surveyed had recent contact with the police, and those that did were more likely to be male and wealthy. Those who contacted police may well have paid a bribe for the police to take action.
DFAT understands that if a person of interest is being sought by another state, the states would work together in securing the arrest and extradition of that person, however there is no formal state extradition requirement. DFAT understands state police do not have sophisticated online databases to track offenders; such work may be done manually, but details are not clear and, in practice, it would probably depend on the individual police officers and police forces involved. In spite of that, in general, DFAT understands that there is a good degree of cooperation between state police forces and interstate arrest and extradition may be possible.
Under the heading of ‘Judiciary’ at 5.9 to 5.14, it is reported at 5.9 to 5.11 that:
The judiciary in India is separate from the legislature and executive. The Indian judicial system, like Australia’s, is inherited from British Common Law, and senior courts in particular are known for considered judgements in a similar style to Australian courts. Judgements may be written in English.
As in many countries, long delays are common, in part due to understaffing, inefficiency and (more commonly in lower courts) corruption. Some sources claim that lawyers can be incentivised to make unnecessary applications for interlocutory injunctions to the court for legal actions to increase their pay, especially when they are paid by the hour. According to a report by the Indian Institute of Management, Calcutta and reported in the Times of India in October 2019, absent judges, unnecessary procedures and repeated adjournments also caused delays. That report found that it takes about two and a half years for the average litigant to get a judgement, including in lower courts.
According to Freedom House and other sources, the upper levels of the judiciary display more autonomy, however the lower levels can suffer from corruption and politicisation. Bribes may be taken at different stages of the process and might be paid to speed things up rather than change an outcome.
Under the heading of ‘Internal Relocation’ at 5.19 to 5.22, it is reported at 5.19 that:
There are no legal barriers to internal relocation and India has a long history of internal migration. In practice, relocation is mostly intra-state rather than interstate. This probably reflects the way in which languages and cultures tend to be divided in India along state-lines; people in the same state will speak the same language as the internal migrant. However, in the northern (not north-eastern) states generally all people speak Hindi, giving greater scope for internal migration.
Under the heading of ‘Treatment of Returnees’ at 5.23 it is reported that:
DFAT is not aware of any evidence of mistreatment of returnees, including failed asylum seekers, by Indian authorities. The Australian Government through the Department of Home Affairs is required to notify Indian authorities prior to the arrival of escorted removals from Australia but does not track returnees after their arrival in India. Home Affairs does not routinely notify Indian authorities of unescorted returns and removals. UK Home Office reporting notes tracking and surveillance systems appear limited. DFAT assesses that failed asylum seekers are unlikely to encounter official discrimination upon return.
And under the heading of ‘Exit and entry procedures’ at 5.24 to 5.30, it is reported at 5.24 and 5.28, that:
The Bureau of Immigration undertakes immigration functions in India. Indian nationals travelling abroad require a valid Indian passport and travel authority for the destination country. An Indian national, on re-entry to India, requires a valid Indian passport or travel document issued by the Government of India.
India has a border alert mechanism, known as a Look-Out Circular (LOC), that allows certain agencies to flag citizens and non-citizens for border intervention on entry to or exit from the country. Authorities can request LOC listing in cases where a person is a suspect, accused or under investigation for serious criminal offences under the Indian Penal Code or other penal laws. LOC listing can prevent a person from exiting the country (via airports, ports or land border crossings), and allow for arrest in some cases (such as when a person is absconding). In other cases, immigration authorities may not prevent LOC subjects from travelling, but originating agencies will be informed about the person’s departure or arrival. Generally, LOCs are valid for one year from the date of issue. In some cases validity can be longer (such as LOCs issued at the request of courts or Interpol, those with a specified duration or those linked to impounding of passports). DFAT is not aware of details of who would be placed on the list and is not aware of a pattern of treatment of those people that are.
Rampal, born Rampal Sing Jatain, is an Indian religious cult leader who has been convicted of murder and is presently serving a life sentence. He is of the Kabir Panth religious denomination in India.[1] Rampal’s teachings, which followers believe and adhere to, include that he is an incarnation of Kabir, a 15^th century Indian mystical poet who is believed to be the supreme god. Rampal claims that all the major religious scriptures including the Vedas, Gita, Quran, Bible and Guru Granth Sahib name Kabir as the supreme god[2]. Rampal teaches against temple visits, dowry, idol worship, unnecessary donations, untouchability, adultery, and vulgar dancing and singing. His teachings prohibit the consumption of meat, tobacco and alcohol, as he claims that such consumption is a sin, and causes immense suffering in the next life[3].
[1] ‘Haryana police storm godman Rampal’s ashram, main gate damaged’: India News – Times of India – of india.indiatimes.com/india/Haryana-police-storm-godman.rampals-ashram-main-gate-damaged-report/articleshow/45191061.cms
[2] ‘Jagat Guru Rampal Ji Maharaj: Holy Books’ – – Kabir Parmeshwar Bhakt Trust. 18 November 2014. Archived at ‘Fugitive Guru Arrested After Standoff With Police’ – region+Footer&moduleMoreInSection&pgtype+article – New York Times. 20 November 2015.
In their article of 8 January 2024, titled ‘As Prakash Jha’s Ashram comes under attack, here’s a look at controversial ‘babas’ of India’, the Indian Express reported as to ‘Rampal’ that:
A Haryana court in 2018 convicted self-styled godman Rampal and 27 of his followers in two murder cases. He was awarded life sentences in both the cases, which are now running concurrently.
The two murder cases pertain to death of five women and one child who died because of suffocation and illness during two-week long standoff and clashes between Rampal supporters and police in November 2014. That year, the Punjab and Haryana High Court had ordered the police to arrest Rampal after he failed to appear before the court in connection with a 2006 murder conspiracy case. However, when police went to arrest him, Rampal and his aides barricaded themselves and holed themselves up inside his Satlok Ashram.[4]
[4] As Prakash Jha’s Ashram comes under attack, here’s a look at controversial ‘babas’ of India | India News - The Indian Express – httpps://indianexpress.com/article/india/aashram-attack-controversial-babas-godmen-rahim-asaram-nithyananda-rampal-7591192.
The British Broadcasting Corporation (BBC), in their article entitled ‘Indian guru Rampal sentenced to life for murder’ of 16 October 2018, reported in part that:
A self-styled Indian guru and 14 others have been sentenced to life in prison for murdering four women and an 18-month-old baby in 2014.The court in Haryana state convicted Rampal last week. He was also found guilty of another murder and will be sentenced in that case on Wednesday. The victims suffocated after they were locked in a room while his supporters and police clashed, the court said. The guru claims tens of thousands of followers and has ashrams across India.
Sentencing was announced amid tight security at the court in the northern city of Hisar in Haryana state, reports BBC Punjabi's Sashi Kanta…
Rampal's lawyers told the BBC they would appeal against the sentence. The court heard that four women and the baby were found dead inside a tiny locked room in the ashram after the bloody standoff, in which at least six people died. A fifth woman found in the same room was taken to hospital but did not survive. Sentencing in her murder case is due on Wednesday.
He was first accused of involvement in a murder case dating from 2006 in which a man died in a clash at one of his ashrams. He denied the allegations and was released on bail. The authorities ordered his arrest on contempt charges after he repeatedly failed to appear in court. A ruling is awaited in this case. Rampal refused to surrender to the police when they reached his fortress-like Satlok Ashram in Barwala, in Haryana state, in November 2014. Thousands of his supporters clashed with police and stopped them from entering the ashram.
Rampal was born in 1951 to a farming family in India's northern Haryana state. After his diploma in engineering he began working for the local government and became a disciple of a seer. He began giving talks to groups of people in 1994. Encouraged by his growing number of devotees, he set up the an ashram in 1999. A year later Rampal resigned from his government job. It grew from there and he now has tens of thousands of devotees in several states. Rampal claims that "thousands of people have got their chronic illnesses cured" and "ruined families have become prosperous again" after coming in contact with him.[5]
[5] AND REASONS

The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to the protection visa application, the applicant claims to be a citizen of India and provided a copy of the bio data page of his Indian passport. Based on this material, the Tribunal finds that the applicant is who he says he is, and is a national of India. India is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[6] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[7] This is consistent with the established proposition that it is for the applicant to make his or her own case.[8]
[6] Section 5AAA of the Act.
[7] Ibid (with effect from 14 April 2015).
[8] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[9] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[10]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[9] Fox v Percy (2003) 214 CLR 118
[10] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[11] A similar approach is taken in the Department’s Refugee Law Guidelines[12] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[13] which both provide useful guidance for this Tribunal.
[11] SZLVZ v MIAC [2008] FCA 1816 at [25].
[12] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[13] UNHCR, re-issued February 2019 at [203]–[204].
In reaching its decision, the Tribunal has considered the Department’s file in relation to the application. The Tribunal has also noted, as outlined above, that the applicant chose not to accept the Tribunal’s invitation to attend a hearing and give evidence and present arguments.
Additionally, the Tribunal notes that, notwithstanding the applicant having stated in his ‘My Claims for Protection’ document, as discussed above at paragraphs 15 and 16, that he ‘will provide detailed account later on’, no such detailed account he has to date been provided to the Department and/or the Tribunal.
Further, the Tribunal notes that, since the decision of the delegate and notwithstanding the remittal of this matter by the Federal Circuit and Family Court of Australia (Division 2) for reconsideration by this Tribunal, the applicant has, after being contacted by the Tribunal both directly by telephone in November 2022 and again by email through his nominated representative and authorised recipient in November 2023, not provided any additional information and/or evidence to the department and/or the Tribunal. However, the Tribunal has still carefully considered the applicant’s claims.
The Tribunal, after carefully considering the applicant’s claims for protection, both individually and cumulatively, has found for the reasons outlined above, and below, that the applicant has not provided a level of detail that satisfactorily supports his claims. In that regard, the Tribunal notes that the applicant’s claims are vague and do not provide any information as to when the relevant incidents he relies upon occurred, nor has he outlined any specific details as to these incidents, and the ongoing basis of his fears.
Had the applicant attended the scheduled review hearing, the Tribunal would have had the opportunity to request such details relating to his claims and afforded him an opportunity to address the lack of detail in his claims, and provide any further information and evidence in support of his claims.
Religious beliefs
The applicant claims that he started following Jagat Guru Ram Pal Maharaj (Rampal) ‘as he was of the impression that he was on the right path with him’.
However, as to this claim, the applicant has not provided any information as to how he was introduced to the teachings of Rampal, by whom he was so introduced to these teachings, when he was introduced, and what teachings of Rampal appealed to him and set him on this ‘right path’.
Further, the applicant has not explained how he formed the view that following Rampal was the right path for him and why. He has not discussed any of Rampal’s teachings, which the Tribunal has summarised in the country information above at paragraph 37. The applicant has not provided any information and/or evidence as to what changes he made to his life, and how he follows Rampal’s teachings, and what belief he holds in relation to Rampal’s teachings.
The applicant also claims that ‘fundamentals in India did not like me following him and started threatening me. They told me to stop following Jagat Guru Ram Pal Jee Maharaj otherwise I will be killed.’ As to this claim, the Tribunal notes that the applicant has not provided any details as to this claim, he has not identified who are the ‘fundamentals’ in India and more specifically, he has not provided any information and/or evidence as to who, when, and how these unidentified ‘ fundamentals’ expressed to him that they did not like him following Rampal and when, and in what manner, and by whom, he was purportedly ‘threatened’.
Additionally, the applicant has not provided any information and/or evidence in which he has described in any detail, how, when, and by whom he had been told to stop following Rampal and was threatened to be killed if he did not stop following Rampal. In this regard, the Tribunal also notes that the applicant again has not provided any detail as to how he was so following Rampal and was and could be identified as being a follower of Rampal.
The applicant has further claimed that ‘with my leader in the prison, the followers have been harassed and tortured frequently and my life will be in danger if I had stayed in India’. As to these claims, the applicant has again provided little to no detail as to the form of harassment he fears, by whom this harassment has or will come from, and/or any evidence of any incidents of harassment that he and/or other followers of Rampal have experienced. With reference to the relevant and available country information relating to Rampal, as outlined above at paragraphs 37 to 39, the Tribunal has found no information that is supportive of the applicant’s claims that followers of Rampal have been so harassed or tortured because of their beliefs alone.
In relation to the applicant’s claims for protection arising from his religious views, the Tribunal, for the reasons outlined above, finds that the applicant does not face a real chance of persecution involving serious harm if he was to return to India in the reasonably foreseeable future.
The Tribunal finds that the applicant’s fears in this regard, are not well-founded.
Additional claims – security situation
The applicant has also made claims that: ‘There is no safety in India as anarchy and restless is on the rise, and India as a State does not have enough resources to cope with all the problems.’
The applicant has not provided any details in support of his claim as to: his safety concerns; examples of security issues or problems he has faced or that others have faced in India; and what exactly he relies upon to make the claim that there is no safety as anarchy and restlessness is on the rise.
As to this claim, given the lack of detail as outlined above, the Tribunal finds that this claim relates to the general security situation and purported prevalence of criminal activities in India and the State resources available to provide protection.
The Tribunal notes that these claims do not relate to any of the reasons outlined in s 5J(1)(a) of the Act. Second, these risks, are matters that are faced by the population of India generally. Further, the Tribunal finds that, given the relevant available DFAT country information as outlined above at paragraph 36 as to ‘Security Situation’, ‘Police’ and ‘Judiciary’, that the applicant can, if needed, obtain from the Indian authorities protection such that there would not be a real risk that the applicant would suffer significant harm arising from the anarchy and restless state of the community in India.
Delay
Finally, the Tribunal notes that the applicant arrived in Australia on [date] December 2015 in circumstances of him having claimed that, because of his fears of persecution, he ‘decided to leave India to avoid this situation.’ The applicant subsequently made his application for the protection visa on 28 March 2018, two years and three months after arriving in Australia. The Tribunal further notes that his application for the protection visa was also made 12 months after his substantive Tourist visa had expired. The Tribunal finds that this delay is inconsistent with the applicant’s claims being genuine. In that regard, the Tribunal has considered Anadaraj Subramaniam v MIMA (1998) VG310 of 1997, where the Court held that even a three-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 fears of persecution; and SZRQA v MIBP [2013] FCA 962 at [17] where the Court found no want of logic in the Tribunal reasoning, in circumstances where the applicant had obtained his student visa fraudulently, that the applicant ought reasonably to have realised that he was vulnerable to deportation, and that if he were in genuine fear of persecution, he would not have delayed applying for a protection visa.
Refugee criterion
Based on the information before it, the Tribunal rejects the applicant’s claims of fear of persecution in their entirety and, having considered all of the applicant’s claims both individually and cumulatively, finds there has been no evidence of persecution or fears of persecution for the reasons provided in s 5J of the Act. The Tribunal finds that the applicant does not face a real chance of persecution involving serious harm if he was to return to India in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore, that the applicant is not a refugee within the definition of s 5H of the Act.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion, and the availability of protection by the Indian authorities, that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings
Additionally, there is no suggestion that the applicant satisfies 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 (aa) of the Act and who holds a protection visa.
As the Tribunal has found that the applicant does not meet the refugee and complimentary criteria and does not satisfy the criteria in s 36(2) of the Act, the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than India.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
Senior Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 1300

17 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice

Appeal