2304131 (Refugee)

[2023] AATA 3429

2304131 (Refugee) [2023] AATA 3429 (26 July 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  2304131

COUNTRY OF REFERENCE:                   India

MEMBER:  Jason Pennell

DATE:  26 July 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 26 July 2023 at 4.55pm

CATCHWORDS

REFUGEE – protection visa – India – fear of harm from family and ex-wife’s family and ex-partner – non-acceptance of marriage and Australian-born child – threats via wife’s phone and social media – drug use, criminal charges, student visa cancelled and immigration detention – vague claims and no supporting evidence provided – parents ambitious but not abusive, and concerned about lifestyle and relationship – wife same caste and religion as applicant – no current contact with her or ex-partner – best interests of child – wife’s separate protection application with child as secondary applicant – not referred for ministerial consideration but applicant may apply personally – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65, 417
Migration Regulations 1994 (Cth), Schedule 2

CASES

Applicant A v MIEA (1997) 190 CLR 225

Chan v MIEA (1989) 169 CLR 379

Davis v MICMSMA; DCM20 v Secretary, DHA [2023] HCA 10
MIAC v SZQRB [2013] FCAFC 33

MIEA v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445

MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

Savvin v MIMA [1999] FCA 1265

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 Home Affairs on 20 March 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of India, applied for the visa on 9 February 2023. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant is a person in respect of whom Australia has protection obligations, as provided for by s 36(2)(a) or s 36(2)(aa), and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant, as provided for in s 36(2)(b) or s 36(2)(c) of the Act.

3. The applicant appeared before the Tribunal on 9 June 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

CRITERIA FOR A PROTECTION VISA

1. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.

2. 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.

3. 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).

4. 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 Attachment B to this decision.

5. 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 Attachment B to this decision.

Mandatory considerations

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

APPLICANT’S CLAIMS AND EVIDENCE

Applicant’s identity and country of reference

1. The applicant claims that he was born on [Date] in the town of [Town] in Punjab, India, and is a citizen of India from birth.¹

2. The applicant advised the Department that he had lost his passport and provided an uncertified copy of it in support of his protection visa application.² There is no evidence to suggest this is a bogus document and, as such, the Tribunal accepts the applicant’s identity.

3. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the document provided by the applicant, the Tribunal finds that he is a citizen of India and as such his protection claim will be assessed against India as the country of reference and ‘receiving country’

Applicant’s migration history

1. The applicant was granted a Student (Higher Education) (Subclass 500) visa on 2 September 2015. He arrived in Australia holding this visa [in] September 2015. On 2 May 2018 he lodged an application for a second Student (Higher Education) (Subclass 500) visa and was granted a Bridging A (Subclass 010) visa in association with that application. This second student visa was granted to the applicant on 7 June 2018.

2. On 27 January 2022, the applicant’s visa was cancelled pursuant to s 116 of the Act. On 8 November 2022 the applicant was granted a Bridging E (Subclass 050) visa, which ceased on 22 November 2022.The applicant lodged the protection visa application presently under review on 9 February 2023. He does not currently have a visa and is being held in immigration detention.

Applicant’s claim for protection

1. The applicant first made claims for protection when he lodged his protection visa application with the Department. His claims were as follows:³

   Select the country or countries from which this applicant is seeking protection and cannot return to.

   INDIA

   Provide reasons why this applicant left that country or those countries:

   I CAME TO AUSTRALIA ON STUDY PERMIT BECAUSE I WAS NOT WELL ADJUSTED WITHIN THE FAMILY AS MY PARENTS USED TO PUT ME UNDER RESTRICTIONS.I WAS A VICTIM OF CHILD ABUSE THERE AND WANTED TO GET AWAY FROM THEM WHICH IS WHY I LEFT THE COUNTRY.

   Did this applicant experience harm in that country or those countries?

1. Applicant’s protection visa application, Dept. File [Reference], AAT file No 2304131, Doc ID 11014083.

2. Correspondence between applicant and the Department, Dept File [Reference], AAT file No 2304131, Doc ID 11014087.

3. Applicant’s protection visa application, Dept. File [Reference], AAT file No 2304131, Doc ID 11014083.

Yes. I EXPERIENCED MENTAL DISTURBANCE AND WAS DEPRESSED DURING MY CHILDHOOD PERIOD AND FACED CHILD ABUSE.

Did this applicant seek help within the country or those countries after the harm?

No. I WAS AFRAID OF MY PARENTS AND WAS NOT AWARE OF THINGS I CAN DO TO PROTECT MYSELF. THE AUTORITIES IN INDIA DO NOT LISTEN TO A CHILD BECAUSE THEY BELIEVE PARENTS ALWAYS THINK BEST FOR THEIR CHILD. I WAS ALSO FRIGHTENED ABOUT GETTING CAUGHT WHILE GOING AGAINST MY PARENTS AND THOUGHT IT COULD WORSEN MY SITUATION AT THAT TIME.

Did this applicant move, or try to move, to another part of that country or those countries to seek safety?

No. I SOMEHOW COVINCED MY PARENTS TO SEND ME TO MY SISTER LIVING IN AUSTRALIA FOR STUDY PURPOSE BECAUSE HE THOUGHT IT COULD BE HIS WAY OUT OF THAT SITUATION.

Explain what the applicant thinks will happen to them if they return to that country or those countries:

DURING MY STAY IN AUSTRALIA, I MARRIED TO A GIRL AND WHEN OUR PARENTS CAME TO KNOW ABOUT OUR MARRIAGE, THEY WERE FURIOUS AND MY PARENTS SAID I BROUGHT SHAME TO THEIR FAMILY WHEREAS MY IN-LAW FAMILY WERE NOT HAPPY WITH OUR MARRIAGE AND STARTED GIVING ME DEATH THREATS AND ALSO MADE THREATS ABOUT KILLING ME AND MY FAMILY IF I EVER RETURN TO INDIA. MY IN-LAW FAMILY DOES NOT ACCEPT MY CHILD [MASTER A] AND I DO NOT WANT TO GO INDIA WITHOUT MY CHILD BECAUSE MY CHILD IN FROSTER CARE NOW BEACUSE HIS MOTHER IS DRUG USER AND MY WIFE IS ALSO GETTING SAME DEATH THREATS FROM HIS FAMILY AND HIS EX-HUSBAND [MR B] AS THEY MAKE THREATS ABOUT KILLING ME AND MY SON IF I GO BACK TO INDIA. I CANNOT LIVE WITHOUT MY SON. MY BROTHER AND SISTER ARE READY TO TAKE CARE OF ME MY SON.

Does this applicant think they will be harmed or mistreated if they return to that country or countries?

Yes. I AM GETTING DEATH THREATS FROM MY IN-LAW FAMILY AND AFRAID THAT COULD REALLY HAPPEN IF I WILL GO BACK TO INDIA BECAUSE MY IN-LAW FAMILY THINK I DID WRONG TO THEIR DAUGHTER AND BROUGHT SHAME TO THEIR FAMILY.

Does this applicant think the authorities of that country, or those countries can and will protect this applicant if they go back?

No. MY IN-LAW FAMILY IS WELL CONNECTED MAN WITHIN THE AUTHORITIES AND CAN PAY BRIBE TO THE AUTHORITIES TO NOT TO LISTEN TO ME. I DO NOT FEEL PROTECTED IF I EVER RETURN TO INDIA

Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?

No. BECAUSE MY IN-LAW FAMILY AND MY WIFE'S EX-HUSBAND WILL FIND ME AND MY SON AND CAN KILL US.’

1. The delegate summarised the applicant’s claims as follows:⁴

   ·The applicant came to Australia to study as his family were not well adjusted, and his parents’ placed restrictions on him.

   ·The applicant was a victim of child abuse at the hands of his parents.

   ·This affected the applicant’s mental health and he experienced depression.

   ·He wanted to get away from them, so he left India.

   ·The applicant was afraid of his parents and didn’t know how to protect himself.

1. Protection visa decision record, Department file [Reference], AAT file No 2304131, Doc ID 11014102.

·The authorities in India will not listen to a child as they believe that parents know what is best for their child.

·The applicant also thought that going against his parents would make his situation worse.

·The applicant got married while he was in Australia, and when his parents found out, they were furious as he had bought shame to the family.

·His wife’s family were not happy with their marriage and the applicant received death threats against him and his family if he returned to India.

·His wife’s family will not accept their child, and the applicant does not want to return to India without his child who is in foster care due to his wife’s drug use.

·The applicant’s wife is also receiving death threats from her ex-husband and his family, who have threatened to kill the applicant and their child.

·His wife’s family are well connected with the authorities in India and are able to bribe them.

·The applicant will not be protected in India.

·The applicant is unable to relocate to another part of India as his wife’s family and her ex- husband will locate him.

·If the applicant is returned to India, he and his son will be killed by his wife’s family and her ex- husband.

Applicant’s supporting documentation

1. The applicant provided the following material to the Department and Tribunal in support of his protection claims:

   ·    Uncertified copy of the applicant’s Indian passport.⁵

   ·    Affidavit of the applicant’s father, [Mr C], dated 29 January 2021, ‘divesting’ the applicant of the father’s property.⁶

   ·    Punjab Police Information Report dated [January] 2021 recording the divestiture of the applicant in relation to his father’s property.⁷

   ·    Statement of the applicant (unsigned and undated).⁸

   ·    Photograph of the biodata page of the applicant’s Victorian Driver Licence.⁹

Applicant’s evidence

1. The applicant provided a statement¹⁰ to the Department in support of his claim which stated:

   My childhood was very painful because my parents always torture me to get good marks and to be good at my studies. After 12th grade, I joined English classes. I didn’t clear the IELTS exam on the first attempt at that time my parents got upset and my father hit me badly and humiliate me in front of others. My parents are not educated but they are money minded. Others’ emotions do not matter to them. My parents always abused me when they heard that my other classmates were good at their studies. I wanted to come to Australia because my sister was here, and she was very supportive. I never wanted to live with my parents. I never complained about them because I don’t want any trouble. There is no support in India for children who Were abused by their parents.

5Screenshots of scanned copies of the applicant’s Indian passport attached to email to Department, Dept File [Reference], AAT file No 2304131, Doc ID 11014087; Scanned copy of applicant’s passport, Dept File [Reference], AAT file No 2304131, Doc ID 11014097.

6 Copy of Affidavit of [Mr C] dated 29 January 2021, Dept File [Reference], Tribunal Doc ID 11014091.

7Copy of Punjab Police Information Report dated [January] 2021, Dept File [Reference], AAT file No 2304131, Doc ID 11014094.

8 Applicant’s statement, Dept File [Reference], AAT file No 2304131, Doc ID 11014095.

9Photograph of the applicant’s Victorian Driver Licence, Dept File [Reference], AAT file No 2304131, Doc ID 11014096.

10Applicant’s statement, Dept File [Reference], Doc ID 11014100.

My mental health was not good at that time due to my Parents’ over-expectations and pressure. I never see the doctor because I cannot afford, and my parents never understood that their over expectations deteriorating my mental health. My parents paid half of my fee when I came to Australia and the rest of the fee was paid to my sister. My parents told me that I must return that money back as soon as possible. Then I worked very hard during the holidays to return my parent’s money and pay my college fee.

After that, I met my partner [Ms D] Date of birth [Date] in 2018 and we started living together in 2019. My parents never accept our relationship because my partner was already married, and she has a son from her previous marriage. We got married in [Suburb 1] Sikh temple [in] 2020, but we didn’t get a marriage certificate and didn’t register our marriage in court because I was scared by my parents that they might get more upset if they came to know that we were already got married. We lived together for 2 years at [Address]. My documents and my son’s [Master A’s] birth certificate are with my ex-partner [Ms D].

All threats I received from my in-laws and my wife’s ex-partner [Mr B] via [Ms D]’s social media and on her phone. Therefore, I am unable to provide evidence for that.

My in-laws target me for harm although we separated, we have a son together. They lose their reputation and respect as a result of our dishonorable actions. We stayed in a living relationship and then got married against them and we had a son together are dishonorable actions for them.

When I started taking drugs, I got money from my friends and relatives. As I provide the evidence that my parents already diverted me from his movable–immovable property. Now all those people are after me for money. I cannot take any risk to live anywhere in India because I had borrowed money from my friends who are living in different parts of India and some of them had connections with gangsters. I cannot put my life at risk if anything will happen to me and who will be responsible for my life?

1. The applicant’s evidence to the Tribunal was that he was born on [Date] in [Town], Punjab, India. The applicant claims to be an ethnic Sikh, and that his religion is Sikhism. He claims that he can speak, read and write in English, Punjabi and Hindi.¹¹.

2. The applicant’s mother and father continue to live in India. The applicant’s father worked as a farmer and his mother was engaged in home duties. The applicant has one brother and one sister who both live in Melbourne, Australia.

3. The applicant’s evidence was that he was educated in India. He attended the local government school in [Town] and completed the equivalent to year 12 in [Year]. He did not attend College or University in India. After finishing school, the applicant claims he completed an International English course and then travelled to Australia [in] September 2015.

4. After arriving in Australia, the applicant completed a Diploma in [Subject 1] at [Institute 1] in Melbourne. The applicant then enrolled in and completed a [Subject 2] course at [Institute 2]. The applicant’s evidence was that he completed a Certificate III and Certificate IV and a Diploma in [Subject 2].

5. The applicant was financially supported by his family until 2015. His evidence to the Tribunal was that he had not been employed in Australia. However, his protection visa application states that from October 2015 to June 2019, the applicant worked [at] [Workplace] in [Suburb 2], Victoria. After a two-month period of unemployment, the applicant returned to work [at] [Workplace] in [Suburb 3], Victoria, where he remained working until February 2021.¹²

6. The applicant’s evidence was that he married [Ms D] in 2020. The applicant’s evidence was that they were married in a Sikh temple [in] 2020, but

11 Ibid.

12 Applicant’s protection visa application, Dept. File [Reference], AAT file No 2304131, Doc ID 11014083.

the marriage was not registered. [Ms D] is from Amritsar, Punjab, India and was born on [Date].¹³ As a result of the marriage, the applicant has a son, [Master A], born on [Date].¹⁴ The applicant is now separated from [Ms D] and his son is currently in foster care.

1. The applicant’s evidence was that [Ms D] also has a child from a previous relationship. He claims that she was addicted to drugs. He was not able to state where she is living. His evidence was that he has not had any contact with her since January 2023.

2. The applicant claims that if he were returned to India, he would be seriously harmed by [Ms D]’s ex-partner. His evidence was that the ex-partner was in jail in Australia at the time he commenced his relationship with [Ms D] but was subsequently returned to Haryana, India. He claimed that the ex-partner had threatened to harm him by sending [Ms D] messages to her phone and [Social media] account. His evidence was that the ex-partner wanted to harm him because he believed that by being in a relationship with [Ms D], the applicant had taken his child. The applicant claims that the ex-partner will be able to find him if he is returned to India. The applicant was not able to provide the Tribunal with a copy of any of the ex- partner’s messages as claimed.

1. In addition, the applicant claims that if he is returned to India he will be seriously harmed by [Ms D]’s parents. The applicant claims that they blame him for her lifestyle and drug addiction. The applicant was not able to tell the Tribunal the reason why they blame him for [Ms D]’s drug addiction. He claims they blame him for putting her in this situation. Despite his evidence that he had not had any contact with them, the applicant claimed that he had been contacted by them on [Social media]. He was not able to provide the Tribunal with a copy of the correspondence. His evidence was that he had not had any contact with [Ms D]’s family for two years.

2. The applicant claimed that if he was returned to India, his former in-laws would find him and harm him. His evidence was that [Ms D]’s father is a retired police officer and as such is in a position to find him if he returns to India.

3. The applicant claimed that he would suffer serious harm if he was returned to India because he would be separated from his son.

4. The applicant confirmed the evidence as provided in his statement. He claimed that his parents had given up on him. He claimed that they did not accept his marriage and do not accept his son. The applicant confirmed that his father had provided an affidavit dated 29 January 2021 in which he stated he had ‘divested’ the applicant from all his movable and immovable property.

COUNTRY INFORMATION

1. In accordance with Ministerial Direction No.84 of 24 June 2019, the Tribunal also had regard to the country information assessments prepared by DFAT. The Tribunal has referred to the current DFAT report on India dated 10 December 2020 (the DFAT Report).¹⁵ In particular, the Tribunal has considered those parts of the DFAT Report as detailed in Attachment A to these reasons.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

13 Applicant’s statement, Dept File [Reference], AAT file No 2304131, Doc ID 11014095.

14 Applicant’s protection visa application, Dept. File [Reference], AAT file No 2304131, Doc ID 11014083.

15 DFAT Report on India, dated 10 December 2020.

Credibility

1. When assessing the applicant’s claims, the Tribunal must make findings of fact in relation to each claim. In doing so, the Tribunal is mindful of the difficulties faced by an applicant, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All of this is considered in these findings.

2. The mere fact that a person claims fear of persecution for a 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, the fact 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. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. 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.¹⁶ In addition, the Tribunal is not required to accept uncritically any and all of the allegations made by an applicant.¹⁷

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.¹⁸ Care must be taken not to exclude from consideration the totality of some evidence where a portion of it could reasonably have been accepted.

4. If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.¹⁹ However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.

5. The Tribunal has given the applicant the benefit of the doubt in assessing each of his claims. Nevertheless, the applicant’s evidence to the Tribunal was vague and lacking in specific details. Specifically, he was not able to provide the Tribunal with any detail in relation to the threats he claimed he received from [Ms D]’s ex-partner and her parents. He failed to provide any evidence in relation to the number and timing of each threat received by [Ms D]’s ex-partner and parents as claimed. Despite claiming that the threats were made via [Social media], the applicant did not provide any documentary evidence of the claimed threats.

   Accepted facts

6. Based on the applicant’s evidence, the Tribunal finds and accepts that the applicant:

   (a)was born on [Date] in [Town], Punjab, India.

   (b)is an ethnic Sikh, and that his religion is Sikhism.

   (c)can speak, read and write in English, Punjabi and Hindi.²⁰

16 Section 5AAA of the Act.

17 MIEA v Guo (1997) 191 CLR 559 at [596]; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR

155 at [169–70].

18Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J at [482].

19The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].

20 Ibid.

(d)has a mother and father who continue to live in India.

(e)has a father who worked as a farmer and a mother who was engaged in home duties.

(f)has one brother and one sister who both live in Melbourne, Australia.

(g)attended the local government school in [Town] and completed the equivalent to year 12 in [year].

(h)did not attend College or University in India.

(i)completed an International English course and then travelled to Australia [in] September 2015.

(j)completed a Diploma in [Subject 1] at [Institute 1] in Melbourne, Australia.

(k)completed a Certificate III and Certificate IV and a Diploma in [Subject 2] at [Institute 2], Melbourne, Australia.

(l)worked [at] [Workplace] in [Suburb 2], Victoria from October 2015 to June 2019.

(m)worked [at] [Workplace] in [Suburb 3], Victoria from September 2019 to February 2021.²¹

(n)married [Ms D] in a Sikh temple [in] 2020 and is now separated.

(o)has a son, [Master A], born on [Date]²², who is in foster care.

(p)had a stepchild as [Ms D] has a child from a previous relationship; in addition she is addicted to drugs.

Applicant’s refugee claim

A past fear of persecution is not sufficient

1. A past fear may be a relevant consideration in determining if the applicant has a well- founded fear of persecution. However, the relevant test, under s 5H(1) of the Act, is whether the applicant is outside his country owing to a present, well-founded fear of persecution for a reason that falls within the scope of s 5J(1)(a) of the Act, and is unable or unwilling, due to the present and well-founded fear, to avail himself of the protection of that country.²³

Relevant grounds

1. To be considered a refugee pursuant to s 36(2)(a) of the Act, it is necessary for the applicant to have a well-founded fear of persecution if he is returned to India by reason of his race, religion, nationality, membership of a particular social group (PSG) or political opinion, pursuant to s 5J(1)(a) of the Act. In this case, it was possible for the applicant to submit that his claim falls within the scope of s 5J(1)(a) of the Act by reason of his membership of a PSG as a person who will suffer serious harm from his family, and as a result of having borrowed money for friends.

2. When a person claims to fear being persecuted for reasons of their membership of a PSG, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. Section 5L of the Act states:

   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

21 Applicant’s protection visa application, Dept. File [Reference], AAT file No 2304131, Doc ID 11014083.

22 Applicant’s protection visa application, Dept. File [Reference], AAT file No 2304131, Doc ID 11014083.

23Savvin v MIMA [1999] FCA 1265 (Dowsett J, 13 September 1999) at [60], referring to Chan v MIEA (1989) 169 CLR 379, s 5H of the Act.

(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.

1. The section provides that a person is to be a treated as a member of a PSG (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.²⁴

2. The Tribunal has reservations as to whether the applicant’s claim that he will be seriously harmed if he is returned to India because he owes money to friends in India or that he will be harmed by members of his family, including [Ms D]’s parents and former partner, amounts to him being a member of a PSG that shares characteristics that can be described as innate or immutable or so fundamental to their identity or conscience that they should not be forced to renounce it, or that the characteristic distinguishes the group from society, as required under the Act.²⁵ Nevertheless, for the purposes of this decision, the Tribunal is prepared to accept that the applicant is a member of a PSG within the scope of s 5J(1)(a) of the Act.

Applicant’s well-founded fear

1. An applicant must have a well-founded fear of persecution. Section 5J of the Act states that for the purposes of an application under the Act, a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country. In the case of a PSG, as claimed by the applicant, the persecution said to be feared by the applicant must be for reasons of membership or perceived membership of the group.²⁶

2. In Chan v MIEA²⁷ the Court, in considering the Convention, held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Dawson J noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.²⁸

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. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.²⁹ Section 5J(4) of the Act requires that the reason for the persecution must be the

24Section 5L of the Act; Applicant A v MIEA (1997) 190 CLR 225 per Dawson J at [241], McHugh J at [264–266] and Gummow J at [285].

25  Section 5L of the Act.

26  Sections 5H(1) and 5J(1)(a) of the Act; see Applicant A v MIEA (1997) 190 CLR 225 at [240].

27 (1989) 169 CLR 379 at [396].

28(1989) 169 CLR 379 at [396]. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at [263] per Brennan CJ, Toohey, McHugh and Gummow JJ.

29  Chan Yee Kin v MIEA (1989) 169 CLR 379.

essential and significant reason and that it must involve systematic and discriminatory conduct.

1. In this case, for the reasons expressed below, the Tribunal considers that there is no real chance the applicant will be seriously harmed if he is returned to India. As such, the Tribunal has found that the applicant does not have a well-founded fear of persecution as claimed, either on a subjective or objective basis.

Applicant’s parents

1. The applicant claims that there is a real chance he will be seriously harmed by his parents if he is returned to India. The applicant’s evidence is that his childhood was painful because his parents tortured him to get good marks in school. His evidence was that they abused him if he did not get good marks. After he completed year 12 at school, the applicant claims that his father abused and hit him in front of the others after he failed to pass the International English Language Testing System (IELTS) exam on his first attempt. The applicant’s evidence was that he wanted to come to Australia to live with his sister because she was supportive of him.

2. The applicant did not provide the Tribunal with any supportive evidence of him being abused by his parents as claimed. The Tribunal notes that despite his brother and sister both living in Melbourne, Australia, no evidence was presented by them in support of the applicant’s protection application. In any event, on the applicant’s own evidence, it appears that his parents were nothing more than ambitious for his future in their demands for him to achieve good results at school. There was no evidence that the abuse he claims he suffered from his parents amounted to serious harm or significant harm as defined under the Act.

3. Nevertheless, despite the applicant’s claims about his parents’ demands, since arriving in Australia he has completed a Diploma in [Subject 1] and gained qualifications in [Subject 2]. In addition, save for a period of two months, he has been continually employed at [Workplace] in [Suburbs 2 and 3]. As such, it appears that, since arriving in Australia in 2015, the applicant has achieved the necessary qualifications and work experience that his parents desired for him in India.

4. The applicant also claims that his parents did not approve of his marriage to [Ms D]. As such, if he returns to India, he claims that his parents will not accept him or his son. The applicant’s evidence as to the reason why his family did not approve of his marriage were vague and lacking in detail.

5. The country information reports³⁰ that India is officially a secular and multi-ethnic country, and inter-faith and inter-caste marriages are legal.³¹ Nevertheless, many Indian families still prefer marriages arranged within their own religion and caste³² as there is a growing intolerance to inter-caste and inter-faith marriages.³³ It’s reported that many families will cut off social relations with sons or daughters who undertake such unions, while other families commit or instigate acts of violence against the person who undergoes the marriage.³⁴ It’s estimated that around 10 per cent of all marriages in India take place between different castes, while around 2.1 per cent of marriages are inter-faith.³⁵ However, the applicant’s evidence was that despite [Ms D] being from a different town, they were of the same caste and religion.

30 DFAT Report at p.43.

31Ibid. The Special Marriage Act 1954 (SMA) is the secular marriage law in India, which enables inter-faith and inter- caste marriages.

32 Ibid.

33 Ibid.

34 Ibid.

35 Ibid.

1. The country information also reports that in parts of the country,³⁶ informal social systems like the male only Khap Panchayats (or Khaps) pass decisions and judgements on marriage, based on traditions. Punishments in marriage cases include fines, social ostracism, public humiliation and expulsion from the village.³⁷ Despite a Supreme Court ruling against the practice, a lack of political will to act against Khap Panchayats (given their influence over large numbers of voters) means that the Khaps continue to act against legal marriages between consenting adults.³⁸ In this case, [Ms D] was the same religion and caste as the applicant. There was no evidence that the applicant had married [Ms D] in breach of any order of the Khaps.

2. Nevertheless, the applicant’s evidence was that [Ms D] was a drug addict. In such circumstances, the Tribunal accepts that the applicant’s parents would have been against his marriage and concerned about the applicant’s lifestyle at the time. The applicant provided a copy of his father’s statutory declaration dated 29 January 2021 (the father’s declaration) ³⁹, which stated that he ‘divested’ the applicant from his property. It states:

   That my son [the applicant] is out of my control. Hence, I have divested my son [the applicant] son of [Mr C] from my all movable - Immovable property. Anyone deal with him at their own risk and responsibilities. All concerned note.

3. The applicant’s brother and sister provided statutory declarations⁴⁰ in support of his application for a bridging visa.⁴¹ The applicant’s sister, [Ms E], and brother, [Mr F], both state that the applicant was addicted to drugs and living in a dysfunctional environment with [Ms D]. Both offered emotional and financial support to the applicant. From the affidavit material provided, it appears that the applicant comes from a supportive family who have been forced to distance themselves from the applicant due to his relationship with [Ms D] and his dysfunctional lifestyle. There was no evidence that the applicant would be harmed if he is returned to India. The applicant’s evidence was that he is no longer in a relationship with [Ms D]. He has not had any contact with her since January 2023 and has no knowledge of her location. Even if the applicant’s parents disapproved of the applicant’s marriage and son as claimed, there is no evidence that they will seriously harm the applicant if he is returned to India. As such, based on the applicant’s evidence and the available country information, the Tribunal finds that there is no real chance the applicant will be seriously harmed by members of his family if he is returned to India as claimed.

Applicant’s former parents-in-law ([Ms D]’s parents)

1. The applicant claims that there is a real chance he will be seriously harmed if he is returned to India by his former parents-in-law ([Ms D]’s parents). His evidence was that they blame him for her dysfunctional lifestyle and drug addiction.

2. The applicant claimed that [Ms D]’s father is a retired police officer and as such is an important person who will be able to find him if he is returned to India. However, the country information reports⁴² that police effectiveness in India is hampered by lack of resourcing and infrastructure. It’s reported⁴³ that: 240 police stations across India have no access to vehicles; 214 have no access to telephones; 70 have no access to wireless connections;

36Ibid; DFAT understands Khap Panchayats are mainly found in Haryana and parts of Rajasthan, Uttar Pradesh, Punjab and Madhya Pradesh.

37 Economic and Political Weekly Vol 44 No 53 (2009) ‘Khap Panchayats: Stealing Freedom?’ by Bhuendra Yadav,

< DFAT Report at p.44.

39Statutory Declaration of [Mr C] dated 29 January 2021, Dept File No [numbers], Doc ID: 11014091.

40Statutory Declaration of [Ms E] dated 16 February 2023, AAT File No 2302080, Doc ID 10751347, and Statutory Declaration of [Mr F] dated 16 February 2023, AAT File No 2302080, Doc ID 10751348.

41 AAT File No 2302080.

42 DFAT Report at p.60.

43 Ibid.

and 24 have no access to either telephone or wireless connections. In addition, the state police do not have sophisticated online databases to track offenders, with such work having to be performed manually. Therefore, based on the available country information, the Tribunal does not accept that [Ms D]’s father would have the resources available to him to find the applicant if he was returned to India.

1. The applicant was not able to explain to the Tribunal why [Ms D]’s family blamed him for her dysfunctional lifestyle and drug addiction. Based on his own evidence, it appears that [Ms D] had adopted a dysfunctional lifestyle and was a drug addict prior to his relationship with her. She has a child from a previous relationship, with her former partner being sent to jail and subsequently removed to India.

2. In addition, the applicant stated to the Tribunal that he has not had any contact with [Ms D]’s parents for over two years but said that they had expressed their views via [Social media]. The applicant was not able to provide the Tribunal with the [Social media] messages. In circumstances where [Ms D] had a dysfunctional lifestyle prior to the applicant’s relationship with her, the fact he is no longer in a relationship with [Ms D], he has not had any contact with her parents and there is no documentary evidence of the alleged threats, the Tribunal does not accept that [Ms D]’s parents threatened the applicant, as claimed. As such, the Tribunal finds that there is no real chance he will be seriously harmed if he is returned to India by [Ms D]’s parents, as claimed.

Applicant’s friends

1. The applicant claimed that there is a real chance he will be seriously harmed if he is returned to India because he has borrowed money from family and friends. The applicant claims that when he started taking drugs, he took money from his friends and relatives. He claims that they are now demanding repayment and will harm him if he returns to India.

2. The applicant did not provide the Tribunal with any evidence of him having borrowed money from friends and family, as claimed. The Tribunal notes that the applicant travelled to Australia in 2015, soon after having completed his English testing. He has not returned to India since his arrival. Therefore, given the lack of evidence in relation to him having borrowed money, as claimed, and the fact that he has not returned to India since his arrival in 2015, the Tribunal does not accept his claim that he has borrowed money from friends in India.

3. Given the applicant’s circumstances and the fact that he commenced his studies after his arrival in Australia, the Tribunal accepts that he has received money from his family, which he has used to finance his lifestyle. However, given the contents of his father’s declaration and the declarations of his brother and sister, the Tribunal does not accept his claim that he will be harmed by his family members as a result of having taken money from them. Accordingly, the Tribunal finds that there is no real chance he will be seriously harmed if he is returned to India because he has borrowed money from family and friends, as claimed.

Applicant’s ex-wife’s former partner

1. The applicant claims that if he is returned to India there is a real chance he will be seriously harmed by [Ms D]’s former partner, [Mr B]. The applicant’s evidence in relation to the threats received from [Mr B] was vague and lacking in any detail. His evidence was that [Ms D] has a child from her previous relationship with [Mr B]. His evidence was that [Mr B] had been sentenced to jail and subsequently returned to India. He claims that [Mr B] blames the applicant for taking his child from him by marrying [Ms D]. He claims that [Mr B] threatened him by sending [Ms D] messages to her phone and [Social media] account. The applicant was not able to provide any documentary evidence of the messages sent to [Ms D]’s phone or [Social media] account, as claimed.

2. The applicant’s evidence was that he has been separated from [Ms D] for two years and has not had contact with her since January 2023. He does not know where she is living.

1. The Tribunal accepts that [Ms D] has a child from a previous relationship. As such, it accepts that her previous partner may contact her for the purposes of seeking access to the child. However, the Tribunal notes that he has not been in a relationship with [Ms D] for approximately two years. As such, claims of any continuing threat from [Mr B] appear to be baseless. Nevertheless, in circumstances where [Mr B] was sent to jail and then returned to India, and in the absence of any independent evidence of the threats as claimed, the Tribunal does not accept the applicant’s claim that he was threatened by [Mr B]. As such, the Tribunal finds that there is no real chance he will be seriously harmed by [Ms D]’s former partner if he is returned to India, as claimed.

2. Therefore, having considered the applicant’s claims both individually and cumulatively, the Tribunal finds that the applicant does not have a real chance of being seriously harmed as a victim of his parents, his ex-partner’s parents, his friends, or the former partner of his ex- partner, or for any other claimed reasons, if he was to return to India from Australia now or in the reasonably foreseeable future. Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution if he returns to India and as such does not satisfy s 36(2)(a) of the Act.

Complementary protection

1. The Tribunal also considered whether the applicant meets the complementary protection criterion under s 36(2)(aa). In MIAC v SZQRB [2013] FCAFC 33, 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’. The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm of any kind.

2. Based on the applicant’s evidence and the available country information, the Tribunal has not accepted that there is a real chance the applicant will be seriously harmed by his parents or by [Ms D]’s parents and former partner if he is returned to India. Given that the real chance test is the same as the real risk test, for the reasons expressed above, the Tribunal does not accept there is a real risk that the applicant will be significantly harmed by his parents or by [Ms D]’s parents and former partner if he is returned to India.

3. The Tribunal has not accepted the applicant’s evidence that he borrowed money from friends in India, as claimed. As such, the Tribunal does not accept that the applicant faces a real risk of significant harm as outlined in ss 36(2A)(c) and (d). Accordingly, the Tribunal finds that there is no real risk the applicant will be significantly harmed by friends from whom he borrowed money in India, as claimed.

4. In all the circumstances, the Tribunal finds that, pursuant to s 36(2)(aa), there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk that he will suffer significant harm of any kind.

5. At no stage did the applicant advance any other reason, such as his nationality, or political opinion, in his written or oral claims, that he is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered pursuant to s 36(2)(a) and s 36(2)(aa) of the Act.

6. Having considered his claim and accepted circumstances, both individually and cumulatively, the Tribunal is not satisfied that, as required by s 36(2)(aa), 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, including that he will: be arbitrarily deprived of his life; suffer the death penalty; be subjected to torture; be subjected to cruel or inhuman treatment or punishment; or be subjected to degrading treatment or punishment.

Tribunal consideration of the applicant’s son

1. The Tribunal acknowledges that if the applicant’s application for a protection visa is unsuccessful, he will likely need to depart Australia. Naturally, the applicant’s departure will impact his infant son, [Master A], who is currently in foster care in Australia. The risk of potential harm faced by [Master A] if the applicant must return to India does not, in this case, bear on Australia’s protection obligations to the applicant. However, it is relevant to the Minister’s power to intervene to substitute a decision of the Tribunal with one that is more favourable to the applicant, pursuant to s 417 of the Act. That section reads, relevantly:

   Section 417 Minister may substitute more favourable decision

   (1)If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

2. The Minister’s Guidelines on Ministerial Powers (the Minister’s Guidelines) set out the guidelines for the exercise of this intervention power. These guidelines state that:⁴⁴

   A review tribunal may refer a case to the Department if the member believes the issues involved fall within the unique or exceptional circumstances described in section 4 of these guidelines. The Department will assess the circumstances of the case and may refer the case to me where it meets my guidelines for referral. If the Department assesses that the case does not meet my guidelines for referral, the Department will finalise the case according to these guidelines.

3. The guidelines set out instructions for Departmental officers regarding the cases that should be brought to the Minister’s attention. The Tribunal notes that the recent High Court decision of Davis v MICMSMA⁴⁵ held that all requests for Ministerial intervention must be considered by the Minister personally, and that, contrary to the terms of the policy, the Department may not finalise cases without referring them to the Minister. Notwithstanding, the Tribunal may still consider whether an applicant’s circumstances meet those set out within the policy and refer their case for Ministerial consideration. Importantly, whether or not the Tribunal does so, an applicant is still entitled to seek Ministerial intervention themselves.

4. The Tribunal notes that [Master A] is not an Australian citizen or permanent resident. He holds a Bridging E (Subclass 050) visa in association with his mother’s pending protection visa application. With this knowledge in mind, the Tribunal notes that for any recommendation for Ministerial intervention there must be ‘unique or exceptional circumstances’, which can include circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or where the application of relevant legislation leads to unfair or unreasonable results in a particular case.

5. In this case, the application of relevant legislation results in a parent being separated from his child while that child legally remains in Australia pending the outcome of his other parent’s visa application. The Tribunal accepts, as a general principle, that it is undesirable for children to be separated from their parents. The Minister’s Guidelines state that the Minister seeks information regarding:

   circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child - which must be treated as a primary consideration, but can be balanced against other primary considerations.

44UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3, available at: < v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; DCM20 v Secretary of Department of Home Affairs [2023] HCA 10.

1. The Tribunal is of the view that this case may engage Australia’s obligations under the Convention on the Rights of the Child (CRC). Article 3(1) of the CRC states that:⁴⁶

   In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2. Article 9(1) of the CRC reads:

   States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately, and a decision must be made as to the child's place of residence.

3. In this case, the applicant has been addicted to drugs and living in a dysfunctional environment with [Ms D].⁴⁷ In addition, he was arrested and charged with offences in 2022 and 2023. His behaviour has been such that his father has ‘divested’ him from all his property.⁴⁸ Accordingly, the applicant’s history as a parent since the birth of his son [has] not been ideal. The applicant is now separated from [Ms D] and his son is presently in foster care. While the Tribunal accepts that as a general principle it is undesirable for a child to be separated from his or her parents, in this case the authorities have made a positive decision that because of the applicant’s and [Ms D]’s behaviour, the best interest for [Master A] is to be placed in foster care. The Tribunal notes that [Master A] is currently part of [Ms D]’s application for protection. There was no evidence before the Tribunal to suggest that the applicant’s son would be released to him if he was granted a protection visa. In such circumstances, the Tribunal does not make any recommendation that the applicant’s case be referred for Ministerial intervention. Nevertheless, the Tribunal notes that it is open to the applicant to make his own application for Ministerial intervention if he so desires.

CONCLUSION

1. 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 the Act for the reasons mentioned in s 5J(2). Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a).

2. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

3. There is no suggestion that the applicant satisfies s 36(2) based on being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).

DECISION

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

Jason Pennell Senior Member

46UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3, available at: < Declaration of [Ms E] dated 16 February 2023, AAT File No 2302080, Doc ID 10751347, and Statutory Declaration of [Mr F] dated 16 February 2023, AAT File No 2302080, Doc ID 10751348.

48Statutory Declaration of [Mr C] dated 29 January 2021, Dept File No, [Reference], Doc ID: 11014091.

ATTACHMENT A

DFAT Country Information Report: India (10 December 2020)

ECONOMIC OVERVIEW

2.23India’s economy is of global importance. It has been one of the world’s fastest-growing large economies in recent years – although 2019 marked a slowdown, with the International Monetary Fund (IMF), Moody’s and the Reserve Bank of India downgrading GDP growth estimates to 5 per cent from a high of 7 per cent in 2018. At that time, across industry, several sectors faced a slowdown, most notably in the automotive industry, resulting in job losses and fears other labour- intensive sectors may follow suit. The slowdown has been evident by the lack of growth particularly in wages, jobs, sales and consumer demand. Boosting private sector investment and FDI has been a key focus for the Modi government in its first and second term, and it is charting an ambitious economic reform agenda. This has resulted in India rising in the World Bank’s Ease of Doing Business rankings from 130 in 2016 to 63 in 2020.

2.24India’s economy has been impacted sharply by the COVID-19 pandemic, resulting in it entering its first ever technical recession in its second quarter of FY2020-21. Its recovery continues to gather pace, however, and is widely expected to return to sustained levels of growth from 2021 onwards (the IMF expects India to recover to 8.8 per cent in 2021, with growth moderating afterward).

2.25The Indian Government has passed three fiscal stimulus packages in response to COVID-19. Total spending has amounted to around AUD478 billion, with most initiatives focusing on liquidity support and risk underwriting for small and medium-sized enterprises. PM Modi’s ‘Atmanirbhar Bharat’ (‘Self- Reliant India’) agenda seeks to boost domestic manufacturing, attract foreign investment, encourage domestic consumption, and reduce reliance on imports.

2.26Unemployment rates pre-COVID-19 were high, particularly among the youth. Pre-COVID data suggests employment rates in the agriculture, manufacturing and construction sectors had been declining since 2012 resulting in a significant rise in youth unemployment, including among those who are educated (see Employment). Researchers note rural consumption rates have been falling faster than urban consumption rates as a continued knock-on effect on the rural economy from demonetisation (in 2016 the Indian Government withdrew certain currency as legal tender from the Indian economy) and implementation of a goods and service tax.

2.27The World Bank classifies India as a lower middle-income country. Gross National Income on a per capita basis was USD2,130 in 2019. There are significant disparities between income levels across the country. India ranked 129 out of 189 in the UN’s 2019 Human Development Index. Since 2000, India has made significant progress in reducing absolute poverty, although gains from economic growth and poverty reduction remain uneven.

……………………… Mental Health

2.39Access to mental health care is difficult and patients are subject to stigma and discrimination. In July 2017, the Mental Healthcare Act (MHC Act) came into force, repealing the earlier Mental Healthcare Act (1987), which had been widely criticised for not recognising patients’ rights. Interest groups consider the MHC Act an improvement as it contains a ‘right to mental health care’ and repeals section 309 of the Penal Code (1860), which had criminalised attempted suicide by a mentally ill person. Other policy and programmatic interventions in this area include the National Mental Health Programme, 1982; and the District Mental Health Programme, 1996. In 2014, the government released the first National Mental Health policy of India, ‘New Pathways New Hope’, and in 2016 undertook the first National Mental Health Survey of India.

2.40Access to mental health care is not uniform across the country, with availability of services significantly more limited in rural areas than in urban cities and large towns. Across the country, an estimated 150 million people (12.5 per cent of the population) are in need of active interventions for mental illnesses, including nearly 12 million who are living with serious mental disorders. Given the shortfall of specialist and health services for mental illness, treatment is often unavailable or inaccessible even for those who actively seek health care.

2.41According to India’s National Health Profile 2018, there are 43 government mental health hospitals in India. West Bengal has five facilities; Gujarat and Maharashtra have four; Kerala and Uttar Pradesh have three; Jharkhand, J&K, Karnataka, Madhya Pradesh and Rajasthan have two; and the remaining states have one facility each. India has fewer than 4,000 mental health trained professionals – fewer than one per 100,000 population. Most services are located in major cities, which often leads to local healers and non-qualified providers being the first point of care, even for serious mental health conditions.

2.42In practice, mental health programs continue to suffer from severe constraints in technical, human and material resources, and remain a low priority on the public health agenda. A 2017 WHO report that examined improving access to, and the appropriate use of, medicines for mental disorders found significant barriers to accessing medicines at all levels of the health care system. Many barriers are linked to stigma associated with mental disorders, duration and costs of treatment, and, in many areas, the geographical distance from health care providers.

…………………….

Marriage (inter-faith, inter-caste)

3.134India is officially a secular and multi-ethnic country, and inter-faith and inter-caste marriages are legal. However, many Indian families still prefer marriages arranged within their own religion and caste. According to researchers, around 10 per cent of all marriages in India take place between different castes while around 2.1 per cent of marriages are inter-faith.

3.135The Special Marriage Act 1954 (SMA) is the secular marriage law in India, which enables inter-faith and inter-caste marriages, and is an alternative to each of the personal laws. The SMA is available to all citizens who choose to marry outside their faith, and the religion of the parties to an intended marriage is immaterial under the Act. However, few people use the SMA, favouring traditional personal laws that provide solemnisation of marriage under religious rites. As an example, in 2019, according to official data, of the 19,250 marriages registered in Delhi, 3 per cent were inter-faith marriages (and registered under the SMA).

3.136The Hindu Marriage Act allows members of the Hindu, Buddhist, Jain or Sikh religions to intermarry without declaring detachment from their religion. Under Muslim personal status laws, only Muslim men are permitted to marry kitabia (members of the Christian or Jewish religions); Muslim women are prohibited from marrying non-Muslims. If a partner is a Christian, it may be possible to marry under Christian rites through the Indian Christian Marriage Act, 1872.

3.137Despite their legality, in practice, there is a continued and growing intolerance in Indian society to inter-caste and inter-faith marriages. Many families cut off social relations with sons or daughters who undertake such unions, while other families commit or instigate acts of violence against the person who undergoes the marriage. Communal tensions and violence can also result. In August 2019, in Haryana, when a shopkeeper’s daughter reportedly left her family to marry a tailor of a different religious community, people blocked a highway and forced shopkeepers to keep shutters down, demanding the bride be ‘returned’ to her parents. The couple sought protection from the state High Court. In May 2019, a newlywed couple was reportedly set on fire in a village in Maharashtra because the woman’s family was opposed to their inter-caste love marriage.

3.138In some parts of the country, informal social systems like the male-only Khap Panchayats (or Khaps) pass decisions and judgements on marriage, based on traditions. (DFAT understands Khap Panchayats are mainly found in Haryana and parts of Rajasthan, Uttar Pradesh, Punjab and Madhya Pradesh.) Such punishments in marriage cases include fines, social ostracism, public humiliation and expulsion from the village. Despite the Supreme Court ruling against the practice, intrusions by Khaps to stop a legal marriage between consenting adults continue. Analysts have claimed there is a lack of political will to act against Khap Panchayats given their influence over large numbers of voters.

3.139One reason for social disapproval of mixed marriages in India is that inter-faith marriage generally takes place after one of the parties converts to the other’s religion, despite this being unnecessary under the SMA. While the constitution guarantees freedom of conscience and free profession to all (Articles 25-28), for some sections of the majority community, conversion has been and remains a sensitive issue.

3.140Hindu nationalists have used the term ‘love jihad’ to allege Muslim extremist groups are leading an organised campaign to coerce Hindu women to marry Muslim men and convert to Islam. DFAT has

found no evidence of Muslim men coercing Hindu women into marriage for the purposes of proselytisation.

3.141Other intermixed unions perceived to be less socially accepted are those between rich and poor, and Dalit and non-Dalit Hindus.

3.142Practical matters such as renting property, obtaining a passport or boarding flights can be difficult for such mixed unions. Some report the need to remain vigilant against being found, as their extended family is ‘still on the lookout for them’. To support such couples there are limited initiatives such as Love Commandoes, Pratibimb Mishra Vivah Mandal, Dhanak of Humanity, Adhalinal Kaadhal Seiveer and Chayan which provide a mix of legal advice, counsel and shelter. In 2019, Dhanak of Humanity self-reported it had handled 2,000 cases since 2005. An analysis of roughly half their cases showed 58 per cent were inter-caste and 42 per cent were inter-faith couples.

3.143Couples from rural areas who marry inter-caste or inter-faith may attempt to move to the anonymity of urban areas. However, factors that can affect couples moving to a larger city include their financial capacity, the degree to which their families have the power to find them, their educational background and employability, availability of a personal support network, and whether they appear ’visibly different’.

3.144DFAT assesses the treatment of people in inter-faith and inter-caste marriages varies according to the families involved. It can range from approval in some families, to disapproval, ostracism, harassment, or violence (sometimes lethal). DFAT assesses that, in most cases, couples in mixed unions will experience some form of societal and official discrimination. DFAT assesses the risk of violence that can result in death of one or both of the parties to the mixed marriage is higher in communities in which Khap Panchayats operate.

…

STATE PROTECTION

5.1The Constitution of India devolves responsibility for police and public order to individual states and territories. States are responsible for preventing, detecting, registering and investigating crime and prosecuting criminals. The individual Indian State Police Services (see Police) comprise both state- based personnel and national personnel drawn from the central government. Separately, the central government, through the Ministry of Home Affairs (MHA), maintains a number of Central Armed Police Forces. These centralised forces manage internal security, including border control and protection of major infrastructure, under control of the Army (see Military). The MHA also oversees centralised police organisations, including the Central Bureau of Intelligence, Bureau of Research and Development, NCRB, National Investigation Agency, Training Academies and the National Disaster Response Force. These agencies may share information with their state counterparts. The central government provides financial assistance to the state governments under the Scheme of Modernization of State Police Forces for weaponry, communication, equipment, mobility, training and other infrastructure. In practice, funds under this scheme are not fully utilised across states.

…………………………. Police

India’s constitution devolves responsibilities for police and public order to the states. Each state and union territory maintains its own police force, and two-thirds of this cohort hold junior ranks. The national corps within the Indian Police Service (IPS) are selected by competitive exams, hold senior ranking positions and enjoy other benefits, including housing and transport. According to a 2018 survey across 22 states, the Centre for the Study of Developing Societies found less than 25 per cent of Indians trust the police highly (compared to 54 per cent for the army). The World Justice Project’s 2020 Rule of Law Index ranked India 114 out of 128 countries with respect to order and security (see also Corruption). This measure considered issues such as crime, civil conflict and use of violence to redress personal grievances. Centralised Indian Police Service

Article 312 of the constitution establishes a centralised IPS. The IPS is organised into state cadres to provide senior-level leadership to state police forces and to centralised forces. The MHA is responsible for IPS officers and policy decisions, including structure, training, allocation, confirmation, pay, allowances and disciplinary matters. State and central governments review IPS budget allocations every five years. As at March 2019, there were 4,982 IPS officers spread across 26 state cadres, with the states of Uttar Pradesh, West Bengal and Maharashtra having the most IPS officers,

and Uttarakhand, Tripura and Sikkim having the least. The MHA is also responsible for a range central police functions (see State Protection). State Police Services

According to The Economist, India’s 1.9 million police officers ‘do not enjoy a good reputation’. However, local sources report police effectiveness is hampered by lack of resourcing and infrastructure. Police budgets, on average, account for 3-5 per cent of state expenditure. The Status of Policing in India Report 2019 (which used official data drawn from the NCRB and the Bureau of Police Research and Development to assess police capacity and adequacy) found inadequate infrastructure (physical, technological, human), resourcing and training compromised police operations. According to the report, approximately 240 police stations across India have no access to vehicles; 214 have no access to telephones; 70 have no access to wireless connections; and 24 have no access to either telephone or wireless connections. On average, police stations in India have six computers per station, but states like Assam and Bihar have an average of less than one computer per station.

Lack of ‘boots on the ground’ is another key capacity problem. Police in India reportedly work at 77 per cent of their sanctioned personnel capacity. This equates to around 1.2 ordinary police officers per 1,000 people, about half the level recommended by the UN. Long working days and unpaid overtime are common complaints.

Representation of SCs, STs, OBCs and women in the police forces is poor, with large vacancies in these reserved positions. SCs, STs, OBCs and women are less likely to be recruited/posted at officer-level ranks than are general police personnel. The India Justice Report 2019 found women account for 7 per cent of police personnel.

To safeguard police operational autonomy from political interference, the Supreme Court directed states to introduce legal amendments to ensure police officers be guaranteed a minimum tenure of two years to function efficiently. However, in practice, over a quarter of police reportedly consider pressure from politicians is the biggest hindrance in crime investigation. Undermining safeguards, premature transfers of personnel are higher during election years, with the states of Uttar Pradesh and Haryana having the highest transfer rates. Premature transfers are also a common consequence of non-compliance with political pressure. The Economist reports lack of ‘man-power’ and ‘meddling politicians’, were in the top three problems facing police officers in India.

In India, for the police to investigate a case and commence the criminal justice process, they must prepare a First Information Report (FIR). According to 2018 NCRB data, where and how a person reports a complaint can influence their access to justice: 99 per cent of complaints routed through a court were registered as FIRs; 72 per cent of written complaints to the officer-in-charge of the police station were converted into FIRs; 53 per cent of written complaints were converted into FIRs; and only 5 per cent of oral complaints (where the duty officer takes down the details) were converted into FIRs. Only 3 per cent of complaints filed online (a new initiative in some states including Delhi and Uttar Pradesh) and 1 per cent of complaints taken by Emergency Telephone lines were converted to FIRs in the same period.

DFAT understands if a person of interest is being sought by another state, the states would work together in securing the arrest of that person. There is no state extradition requirement. DFAT understands state police do not have sophisticated online databases to track offenders; such work would be done manually. In general, there is a good degree of cooperation between state police services.

………………….. INTERNAL RELOCATION

5.29India has a long history of internal migration; however, in practice, it remains predominantly intra state rather than interstate. The complementary rights to reside and move freely throughout India are found in Articles 19(1)(d) and (e) of the constitution. Article 19(1)(d) guarantees all citizens of India the right to move freely throughout the territory of India including from one state to another or from one place to another in the same state. This right can be curtailed under the ‘reasonable restrictions’ in Article 19(5); that is, in the interest of the general public or for the protection of the interest of any ST. Article 19(1)(e) gives every citizen the right to reside and settle in any part of the territory of India, subject to the reasonable restrictions in Article 19(5). The freedom of movement and residence may be curtailed and suspended during an emergency. Equally, any restriction which maintains public peace or safety can been considered in the interests of the general public.

5.30According to the World Bank, while internal migration in India grows, interstate movement remains low. Drawing on the 2011 census (latest figures), internal migrants numbered 450 million, an increase of 45 per cent over the 309 million recorded in 2001. Internal migrants as a percentage of population increased from 30 per cent in 2001 to 37 per cent in 2011. However, the nature of movement remains relatively unchanged from the 2001 Census. The bulk of movements (62 per cent) were within the same district, with 26 per cent between districts within the same state. Only 12 per cent of movements were across state borders. Interstate migrants represented 4 per cent of India’s population in 2011, a rate almost unchanged since 2001. Women made up the majority of intra-state migrants (63 per cent) with over half attributing marriage as the reason for migration. However, such migration tended to be a change in the usual place of residence across the village and town boundaries. Urban-to-urban migration remained the largest migration flow (46 per cent). Rural-to- urban migration flows remained stable and were roughly half of urban-to-urban flows (22 per cent). India’s census data does not capture seasonal, temporary and circulatory migration (mostly for employment) which is around 13.6 million persons annually and seven times larger than permanent/semi-permanent migration. Limits to Internal Relocation

5.31According to the World Bank, factors that may limit interstate relocation include non-portability of entitlements, preferential norms in educational institutions, and domicile requirements for state government jobs. Other factors, some historical, that limit mobility/interstate migration include: the prevalence of the caste system; traditional values; the diversity of language and culture; exploitation and political exclusion; lack of education; limited access to financial services and resources; and predominance of agriculture and semi-feudal land relations in India.

5.32Inability to access social protection is a further deterrent. In practice, difficulties in procuring registration documents including proof of residency and legal tenancy can restrict internal migrants’ access to public services including health and education and social security programs. These difficulties include complicated regulations and administrative requirements, and act as a disincentive, especially for temporary and seasonal migrants. Such people often face barriers in obtaining subsidised food and housing until they can establish identity and local residence.

5.33The absence of informal social networks that would normally assist with accommodation, employment and informal social protection may also limit relocation. Where local language and culture is different from region of origin, Indian nationals may also face harassment and political exclusion. Multiple sources told DFAT relocation in India is not straightforward, and many cultural, socio-economic and gender-based obstacles, in addition to language differences, prevail. Relocation of single women, women with children or victims of family violence

5.34The Aadhaar Card provides access to government social welfare services, benefits and subsidies (see Unique Identification Numbers (UID) / Aadhaar) and its introduction may assist entitlement portability. However, requirements to provide details of a husband’s or father’s name can exclude single women, single women with children, and domestic violence survivors from government services and accommodation. While income tax provisions do not directly require women to use their husbands’ or fathers’ names, the Aadhaar card and passport both have this requirement.

5.35Local sources told DFAT safe relocation for women and girls fleeing domestic or family violence within Indian states or elsewhere in India is practically impossible. There is limited availability of shelters/centres and, even where they are available, it is important to consider the situation a woman will face upon leaving such centres, where social support networks are unlikely. According to local sources, some women fleeing domestic violence stay in shelters for more than 10 years. There is little ability of state and NGO resources to reintegrate these women into the community. Sources in West Bengal told DFAT that, due to a shortage of women’s shelters, women from other states seeking accommodation in shelters were repatriated to their home states.

5.36Local sources advised relocation would generally be possible for a single woman without children, who was able to access accommodation and support networks, or who was educated, skilled or wealthy enough to support herself.

…

DFAT assesses individuals seeking protection from discrimination or violence may be able to access internal relocation options, although these may be more limited for some individuals depending on their personal circumstances. In particular, DFAT assesses women, including single women with children or those fleeing family violence, have limited access to internal relocation options.

TREATMENT OF RETURNEES

DFAT is not aware of any evidence of mistreatment of returnees, including failed asylum seekers, by Indian authorities. India does not have a centralised registration system in place to enable the police to check the whereabouts of inhabitants in their own state, let alone in any of the other states or union territories. 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.

Exit and Entry Procedures

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.

Certain categories of Indian nationals have their passports endorsed with the ‘Emigration Check Required’ (ECR) stamp. In general, an ECR passport is issued to individuals who have not passed 10th grade/ class (matriculation or higher education pass certificate). Those with ECR passports seeking to travel for employment overseas as unskilled workers (to certain countries in the Middle East, Asia and Africa) need to obtain emigration clearance from the Ministry of External Affairs prior to departure.

The purpose of the ECR process is to ensure safety of Indian low/unskilled workers in countries with no worker protection rights and who are at risk of exploitation. An ECR stamp in an Indian passport may provide a clue about the holder’s education, travel and employment history as well as age and marital status.

Since January 2019, non-ECR passport holders who are travelling for employment to one of 18 designated countries (Afghanistan, Bahrain, Indonesia, Iraq, Jordan, Kingdom of Saudi Arabia, Kuwait, Lebanon, Libya, Malaysia, Oman, Qatar, South Sudan, Sudan, Syria, Thailand, United Arab Emirates and Yemen) have been required to register with the Ministry of External Affairs prior to departure. The requirement is mandatory and failure to comply may result in the passenger being offloaded from flight.

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 LOCs in cases where a person is a suspect, accused or under investigation for cognisable offences under the Indian Penal Code or other penal laws. LOCs can be used to locate and 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).

Travel document applications for Indian nationals in Australia are issued by the Indian High Commission in Canberra or the representative consulates in Sydney, Melbourne and Perth, depending on the state of residence. The Indian High Commission has previously advised of the requirement that a travel document application should be signed by the applicant and accompanied by a letter stating the applicant consented to the issuance of the document and is willing to return to India.

ATTACHMENT B - 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.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…