2310667 (Refugee)

2310667 (Refugee) [2023] AATA 3532 (9 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Baljeet Singh Saini (MARN: 1700154)
CASE NUMBER:  2310667
COUNTRY OF REFERENCE:                   India
MEMBER:Nora Lamont
DATE:9 August 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 August 2023 at 10:56am
CATCHWORDS
REFUGEE – protection visa – India – fear of harm from gangsters and police – early involvement in gang then disengagement – one gang member killed – delay in applying for protection – arrived in Australia as dependent on wife’s visa, now divorced – criminal convictions, imprisonment and immigration detention – country information – low level involvement and time out of country – internal relocation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (2)(aa), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 July 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of India, applied for the visa on 14 June 2023.
The applicant appeared before the Tribunal on Friday 4 August 2023 at 10:30 am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review.
Based on copies of the applicant’s passport which had been provided to the Department and based on the applicant’s oral and written evidence and in the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of India and has assessed his claims against that country in relation to s36(2)(a) and s36(2)(aa) of the Migration Act.
There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any third country for the purposes of s36(3) of the Act.
There are no non-disclosure certificates on the applicant’s file.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Applicant’s Background
The applicant was born in [Village] Punjab India on [Date]. He first arrived in Australia in December of 2017 on his wife’s student visa. He was divorced in 2021. His parents and [sisters] remain in India. The applicant was convicted of [Criminal offences] [in] April 2023 and was incarcerated from [April] to [June] 2023. He was taken to immigration detention and remains in immigration detention.
Submissions
The applicant and his representative provided the Tribunal with the following submissions:[1]
[1] AAT Folio
Affidavits from:
·[Mr A].
·[Mr B].
·[Mr C]
·[Ms D]
·[Person E]
·[Person F]
·Submission from the representative.
·Video link.
Claims
The applicant’s claims as written in his protection visa application are as follows: [2]
[2] [Reference Number]
I always remained under the threat of gangsters in India. In the
very young age as a teen, I was involved in with few people like
[Mr G] and [Mr H] and found myself on the
other side of the law. Soon I realised that this is not what I wanted
to do in my life. I talked to my parents and started living a low
profile life. These Gangsters were always trying to poach me back
in their gangs. I remained scared and led a low profile life, hoping
that one day all will be fine. There was always a threat of getting
killed as I was not bowing to their demands and there was always
a threat of persecution because I was part of them once.
When I got married I came to Australia with my Wife. I thought
that this would be the change I needed and started a new life in Australia.
The police is corrupt in my country. If I would have gone to them
to seek help they would have persecuted me and would have put
me in the jail or would have killed me in an encounter.
Moreover, as the gangsters are loosing ground they are making
headways to find and recruit people to be in their gangs and
people like me are their prime targets because I was involved with
them in some stage of my life. No matter its was teen age and I
did not do anything wrong in those days but they always think that I am their part, which I am not.
The police is corrupt and they have lot of sources to track and kill people in fake encounters and persecute them.
I will be killed by the police in an Encounter. This will happen
because of my initial connections with the Gangsters. I will be
persecuted in false cases and would be jailed for life or killed.
The police thinks that I am still involved in the gangster wars
and fund them from here in Australia. Specially after the recent
murder of Punjabi Singer Sidhu Mussewal, they are after the
gangsters.
One of the person who was my friend when I was Kid, was
also killed recently in February 2023. His name was [Mr G].
I will be persecuted or killed in false cases and the Police and
Government is involved in this because they are under pressure
from international governments to get rid of Gang wars and they
want to show that they are doing their part. People like me are
their obvious targets as I was involved in the gangs at some
stage.
I have been informed by friends that the police thinks that I fund
the gangs from foreign land. This is not true and I never used
money to finance any gang.
They will not protect me as they are the one who are after me.
Moreover the Gangsters will be after my property and farms as
they believe this will pressurise me to join their gangs.
No I do not think so, as the police can come to any place and they
will persecute me.
Country Information
Current country information about gangs and the police is provided by DFAT and various other independent sources.[3]
[3] DFAT Country Information Report India 10 December 2020.
Police
5.4 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
5.5 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
5.6 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.
5.7 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.
5.8 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.
5.9 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.
5.10 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.
5.11 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.
Findings
The applicant told the Tribunal that he was born in [Village] in Punjab, and he lived there until he came to Australia. His father is retired, and he has [sisters]. His father has a farm and grows [crops] on the farm. He completed year 12 and then assisted his father on the farm. He was married in 2015 and arrived in Australia with his wife who was on a student visa as she was studying [Subject]. He travelled around and lived in NSW, QLD and WA before settling in Melbourne. At one point the applicant had a job as [an Occupation].
The applicant said that he met [Mr G] and [Mr H] in [school]. [Mr G] was a year younger than he and [Mr H] who were in the same class level. [Mr H]’s relatives lived in the same village as [Mr G]. The applicant explained that [Mr G’s] Aunty was having an affair with a man and [Mr G]’s older brother and some other men killed the man she was having an affair with. [Mr G] was also involved in this murder. [Mr G] went to jail for one to two years while [Mr G]’s brother went to prison for ten years. The Tribunal asked the applicant if he had any documentation about this murder, but he said no he was [Age] or [Age] years old at the time. The Tribunal asked him if [Mr G] contacted him while he was in jail and he said he did not. However, the applicant’s advisor’s submission states that [Mr G] frequently called the applicant whilst he was in jail.
The applicant claimed the following: I always remained under the threat of gangsters in India. In the very young age as a teen, I was involved in with few people like [Mr G] and [Mr H] and found myself on the other side of the law. Soon I realised that this is not what I wanted to do in my life. I talked to my parents and started living a low-profile life. These Gangsters were always trying to poach me back in their gangs. I remained scared and led a low-profile life, hoping that one day all will be fine. There was always a threat of getting killed as I was not bowing to their demands and there was always a threat of persecution because I was part of them once. When I got married, I came to Australia with my Wife. I thought that this would be the change I needed and started a new life in Australia.
The Tribunal accepts that the applicant was friends with [Mr G] and [Mr H] and as he stated at the hearing, they would get into street fights. He stated that they met [at] school and [Mr H] was in his class and [Mr G] was a year younger. He said that [Mr H]’s relatives lived in the same village as [Mr G]. I further accept that [Mr G]’s brother murdered his aunt’s lover and that [Mr G] himself was implicated. The Tribunal asked for documentation about this murder, but the applicant said he was [Age] or [Age] years old at the time and he didn’t have any documentation.
The applicant’s advisor provided a submission in which he stated that once [Mr G] went to jail for being implicated in the murder the applicant’s parents became aware that [Mr G] was calling from jail and telling the applicant stories from the jail, and they became concerned. It also states that police also came to know about this and started to keep an eye on the applicant. However, at the hearing when questioned about this the applicant said that [Mr G] did not call him from jail whilst he was in India, he called him from jail when the applicant was in Australia. Given the oral evidence of the applicant that [Mr G] did not call him from jail whilst he was living in India the Tribunal does not accept this claim.
The Tribunal does not accept the applicant’s claims that [Mr G] may have been falsely accused of the crimes the police say he committed. The Tribunal found multiple news articles related to [Mr G] both prior to and after his death. [News source 1] reports that [Mr G] was arrested in 2020 for 25 criminal cases inclusion murder, attempted murder and carjacking. [4] Further in 2023 when [Mr G] was killed he was wanted for the murder of a police constable. [5] The applicant stated he sent money to [Mr G] for him to pay for his lawyer and for clothes. The Tribunal does not accept that the applicant sent money to [Mr G] as there is no documentary evidence to support this claim.
[4] [News source 1, Title, Date].
[5] [Title, News source 2, Date].
The applicant first arrived in Australia in 2017 and he did not apply for a protection visa until he was in immigration detention after being released from jail. The Tribunal considers the applicant was able to travel to Australia, apply for student visas and live for six years prior to applying for protection and that he has applied for migration purposes not out of fear of persecution. If the applicant fled India due to his involvement in gangs and fear of return, he would have applied for a visa earlier rather than waiting six years to do so.
The Tribunal received a total of six affidavits from relatives and friends in India relating to the applicant, his background and troubles in India. All of the six were proforma and had the exact same wording, and story. The Tribunal does not accept these affidavits as they are all the same and contain the same information word for word.
The Tribunal asked the applicant how they could be sure he wasn’t a gang member himself and he replied this was a false allegation and there was no evidence he was a gang member. He said [Mr G] may have mentioned his name to the police. The Tribunal further asked why after all these years the police would still be after him when he hasn’t even been in the country. He said they were still after him and threatening his family and they may kill him because he is linked to [Mr G]. He said they even mentioned him in the paper. They have a charge sheet against him dated [November] 2020. The Tribunal was given a translated copy of a newspaper article in which it states that ‘and deal to this effect was done by [the applicant’s name] alias [Nickname] who is residing in Australia. [6] The applicant claims the police are saying he sent money to [Mr G] to buy weapons. A search on the internet did not produce any articles in which a [the applicant’s name with nickname] was accused of any involvement in any gang related activity or weapons buying. There was a rapper called [Nickname] and another gangster with the nickname [Nickname] but not any named [the applicant’s name with nickname].
[6] AAT Folio - [Title].

The Tribunal accepts that some police are corrupt in India, however, for purposes of this decision it does not accept that the gang taskforce set up in India to crack down on gangs uses false charges against people and that the applicant would come to the attention of the police and be targeted for his pervious relationships with gangsters. The applicant has been away for six years, and he has not been in India, there is no evidence before the Tribunal that the applicant is a wanted gangster or that he will be falsely accused of being a gangster and killed.
The Tribunal spoke to the applicant’s father in India. The applicant had asked for the Tribunal to call his mother and father but when his father answered he said he was not with his wife, so the Tribunal only spoke with his father. His father stated that the police harass him and his wife. He said he was beaten by the police. The Tribunal asked if his wife was beaten, and he said no only he was beaten. The Tribunal asked him if now that [Mr G] was dead would they stop the harassment and his father said no they are still in danger and please give his son a visa.
The Tribunal also spoke to [named person] whose brother was killed along with [Mr G]. He said the police keep asking for [the applicant’s given name] and they would come after him if he returns and have a fake encounter and make false allegations against him.
The Tribunal has considered if the applicant can relocate to another part of India away from his home area. DFAT reports the following on relocation: [7]
[7] DFAT Country Information Report India December 2020 pages 64-65.
INTERNAL RELOCATION
5.29 India 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.
5.30 According 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
5.31 According 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.
5.32 Inability 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.
5.33 The 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
5.34 The 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.
5.35 Local 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.
5.36 Local 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. Relocation based on sexual orientation
5.37 Local sources told DFAT middle-class, educated, same-sex oriented males would be able to relocate internally to major cities in India more easily than could same-sex oriented males who are poorer or less well educated. DFAT does not have specific information on the ability of same-sex oriented women to relocate within India, but notes factors such as education level, socioeconomic status, financial independence and location (rural or urban) will impact on an individual’s ability to relocate safely (see Sexual Orientation and Gender Identity).
5.38 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.
The applicant claimed at the hearing he could not relocate due to the Aadhaar Card, however, DFAT reports that this is not an impediment to internal location and the applicant is young, male and has some experience [working] in Australia, he should be able to relocate away from his home area to avoid the gangs and police he claims to fear.
Conclusion
Without any remaining claims the Tribunal does not accept that the police are looking for the applicant, that he is under suspicion or that he will be arrested or killed upon his return to India. It follows that the Tribunal does not accept that the applicant was mentioned in a video, that gangs are after him, or that his parents were harassed, and his father was beaten by the police.
Given these findings the Tribunal does not accept that if the applicant returns to India, he will face a real chance of persecution from gangs, or anyone associated with them. It further finds that he will not face a real chance of persecution from the police or authorities, or anyone associated with them. The Tribunal finds that the applicant does not face a well-founded fear of persecution as per s5(J(1) of the Act and therefore the applicant is not a refugee within the meaning of s5H(1).
Nor does the Tribunal accept that there are no grounds for believing that as a necessary and foreseeable consequence of being returned to India there is a real risk that the applicant will suffer significant harm from gangs or the police or anyone associated with them. The Tribunal is not satisfied that the applicant meets the alternative provisions in s36(2)(aa) of the Migration Act.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nora Lamont
Member

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

[2023] AATA 3532

9 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Remedies

Jurisdiction