2408529 (Refugee)

[2024] AATA 3353

2408529 (Refugee) [2024] AATA 3353 (10 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2408529

COUNTRY OF REFERENCE:                   India

MEMBER:Fraser Robertson

DATE:10 June 2024

PLACE OF DECISION:  Perth

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

Statement made on 10 June 2024 at 1:05pm

CATCHWORDS

REFUGEE – protection visa – India – particular social group – forced marriage – divorce – mixed caste relationship – fake dowry charges – physical assault – honour killing – return visits to India – state protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 46, 48, 65, 424AA, 499

Migration Regulations 1994, Schedule 2

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227

ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271

AYZ16 v Minister for Immigration & Anor [2017] FCCA 1444

CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496

CSV15 v Minister for Immigration and Border Protection [2018] FCA 699

DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1

EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804

ESD17 v Minister for Immigration and Border Protection [2018] FCA 1716

Fox v Percy [2003] HCA 22; 214 CLR 118

GLD18 v Minister for Home Affairs [2020] FCAFC 2

Mabo v Queensland [No 2] (1992) 175 CLR 1

Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 1997 CLR 559

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347

Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76

SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816

SZRSN v Minister for Immigration and Citizenship [2013] FCA 751

W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD 757

STATEMENT OF DECISION AND REASONS

INTRODUCTION

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the 'Act').

   BACKGROUND

2. The applicant is [an age]-year-old male from India who came to Australia in May 2008 on a student visa. He has lived in Australia since then, apart from three trips in 2009, 2010, and 2011.

3. The applicant's student visa was cancelled in 2011.

   First protection visa application

4. The applicant first applied for a protection visa in 2014. A delegate of the Minister refused that application. The applicant applied to the Tribunal for review of that refusal. In March 2016, the Tribunal (differently constituted) affirmed the decision to refuse to grant him a protection visa.[1]

   [1]        See 1504601 (Refugee) [2016] AATA 3674 (Member Findson).

5. An application for judicial review of the Tribunal's decision was dismissed by the Federal Circuit Court of Australia (as it then was) [in] June 2017.[2] Following the dismissal of his judicial review application, the applicant sought Ministerial intervention and attempted to apply for several substantive visas, most of which were barred by s 46 of the Act.

   [2]        See AYZ16 v Minister for Immigration & Anor [2017] FCCA 1444 (Judge Lucev).

6. The applicant was detained as an unlawful non-citizen in March 2020.

   Second (and current) protection visa application

7. As the applicant had applied for and been refused a protection visa, he was barred from making any further application for one by s 48A of the Act.

8. [In] December 2023, the Minister lifted the s 48A bar for 7 days.[3] The applicant applied for a protection visa on 11 December 2023. The applicant was interviewed on 7 March 2024 regarding that application. I have listened to that interview. Having done so, I am satisfied that the delegate's decision record fairly summarises the content of the applicant's responses at the interview.

   [3]        Migration Act 1958 (Cth), s 48B.

9. The delegate refused to grant the applicant a protection visa on 11 April 2024.

   Review application

10. The applicant applied to the Tribunal for review on 17 April 2024. The applicant has provided a copy of the delegate's decision to the Tribunal. The applicant attended a hearing before the Tribunal on 24 May 2024 to give evidence and present arguments.

11. The applicant sought, and was granted, until 7 June 2024 to provide further submissions following the conclusion of the hearing. He provided further material on [date].

12. As the applicant is presently detained, I have endeavoured to prioritise the finalisation of this decision such that he is not detained any longer than is necessary to enable his application to be determined.

    CLAIMS AND EVIDENCE

    Personal background

13. The applicant was born in [specified year] in Ludhiana, Punjab, India. He is Punjabi, Hindu, and of the Brahmin caste.

14. The applicant completed primary and secondary school. While living in India, he claims he was never required or expected to work because his father was wealthy.

    Life in India before departure to Australia

15. The applicant claims to come from a strict family. His family are also of Brahmin caste. The Brahmin caste is the highest in India's caste system.

16. At the hearing, the applicant claimed he got engaged to [Ms A] when he was around [age] years old. He claimed [Ms A] lived over 100 kilometres away, and his parents selected him. Other than that, [Ms A] was also of Brahmin caste; the applicant claims he did not know how or why [Ms A] was selected. His evidence was that when he got engaged, he had agreed with his family that his wedding with [Ms A] would only happen when he "felt happy with it".

17. The applicant commenced a bachelor's degree in India in [specified year].[4] However, the applicant's evidence was that he wanted to travel to Australia for his education and that his parents supported that decision. After that, the applicant withdrew from his bachelor’s degree in May 2008 and travelled to Australia as a student visa holder.[5] At the hearing, the applicant's evidence was that when he left, the applicant claimed that he made no promise to return to India to get married.

    [4]        Protection visa application, p 34.

    [5]        Protection visa application, p 34; Delegate's decision, p 1.

    First period in Australia

18. The applicant enrolled in [Course 1] in Australia and commenced employment as [two specified occupations].[6]

    [6]        Protection visa application, p 32.

19. The applicant's evidence was that his father telephoned him while living in Perth and decided it was time for him to marry [Ms A]. The applicant's evidence was that he told his father he did not want to get married and started getting upset. His evidence was that he lived with two or three friends at the time, and those friends sought to discuss the matter with his father on his behalf to explain that the applicant did not want to get married. The applicant's evidence was that his father said, “If you don't come, then don't ever come back."

20. When asked why he returned to India to be married, he explained that he was unsure about returning. He explained that he was still young and had never lived outside his parents' house in India. He explained that everything was provided for him in India, and his father made good money, so he never had to work. He explained that his father claimed he would be insulted if he didn't return, so he felt he had no option other than to return. He claimed he was upset at the prospect of marrying someone he did not want to marry.

    First return trip to India (2009)

21. The applicant departed Australia in March 2009.[7] He travelled to India, where he was married to [Ms A] five or six days after he arrived. It was a large wedding, with [number range] attendees, in [Ms A’s] home village. The applicant claims that approximately [large number] of those were police officers.

    [7]        Delegate's decision, p 1.

22. Following the wedding, the applicant remained in India for around a month. [Ms A] lived with him at the large home owned by the applicant’s parents. The applicant's evidence was that he didn't talk to [Ms A] after they got married, and his father pushed him to take [Ms A] to Australia.

23. The applicant did not claim in his protection visa application, the interview, or at the hearing that he had been harmed in 2009 in India.

    Return to, and second period in, Australia

24. The applicant returned to Perth in May 2009.[8] The applicant completed his [Course 1] in May 2009. The applicant then enrolled in [Course 2] in May 2009, which he completed in December 2009.[9] Following this, the applicant enrolled in a [Course 3].[10]

    [8]        Delegate's decision, p 1.

    [9]        Protection visa application, p 37.

    [10]       Protection visa application, p 37.

25. At the hearing, the applicant claimed that he would speak with [Ms A] over the phone while he was in Australia. Their communication was sporadic, neither frequent nor infrequent. The applicant claimed that after he returned to Australia, [Ms A] went back to her family but lived between the house with her family and the applicant's family. The applicant claimed that [Ms A] spent most of her time with her mother.

    Second trip to India (2010)

26. The applicant departed Australia again in March 2010, travelling to India. He funded the trip himself. On this occasion, the applicant claimed that he told his wife that he did not want to remain married to her.[11] The applicant's evidence at the hearing was that he returned to India because he had been married for a year, and his father wanted him to return.

    [11]       Delegate's decision, p 5.

27. His evidence was that he "went back to normal" after he arrived. He explained that he considered that he was there to see his family, particularly his parents. He added that there were little arguments because everyone could see he was unhappy.

28. The applicant claimed that [Ms A] had enlisted her uncles to come and see him. He claimed that they told him that he had to remain with [Ms A] and that he had no other option. The applicant's response, he claims, was that he just "went along with" what they were saying because he did not know what to say.

29. The applicant claimed he was offered between $1500 and $2000 a month to remain married to [Ms A], which he said was a lot of money. He claims that [Ms A’s] uncle offered him 'any job he wanted', adding that it is difficult to obtain government jobs in India, but that [Ms A’s] uncle was powerful so that he could get a job. The applicant also gave evidence that [Ms A’s] uncle had offered to find employment for the applicant in [Country 1].

30. The applicant did not explain why this occurred. I infer it was because he told [Ms A] that he no longer wanted to be married to her, as he claimed in his protection visa application.

31. The applicant claimed that in 2010, when he was in India, [Ms A’s] family came and "bashed" him. He explained that this happened because he was not staying "at home" or "spending enough time" with [Ms A]. He claimed her family came and said, "You have to be with her."

32. Asked about being 'bashed', the applicant's evidence was that it was early one morning, about one or two weeks after he arrived, and just before he woke up, [Ms A’s] "brothers" came and started bashing him. The applicant then talked about [Ms A’s] brothers, including that one who lived in [Country 2], before correcting himself that it was not [Ms A’s] "brothers" who bashed him but rather an "uncle and one brother". He claims that whilst "bashing" him, they said words like “what are you doing? You have to be with her”. The applicant claims that his father was with them and watched.

33. When pressed for more detail about what happened during the "bashing," the applicant eventually claimed that there were "punches" and a couple of "slaps," adding that it was enough to scare him into being with [Ms A].

34. When asked whether anything else had happened before he returned to Australia, the applicant's evidence was that nothing else had occurred except the single bashing incident.

35. In the interview, the applicant claimed that when he was in India in 2010, after he told his wife that he no longer wanted to be married to her, he was threatened and beaten by [Ms A’s] brothers and uncle.[12] Specifically, he claimed that he was "really badly injured" with "a couple of cuts and bruises…". During the interview, he claimed that they threatened him, saying that if he did not keep [Ms A] "happy", he "would face bad consequences".

    [12]       Delegate's decision, p 5.

    Return to Australia

36. The applicant returned to Australia in May 2010.[13] His evidence was that he continued to talk to [Ms A] while he was there.

    [13]       Delegate's decision, p 1.

    Third trip to India (2011)

37. The applicant next departed Australia in March 2011, again travelling to India.[14] His evidence at the hearing and before the delegate was that he travelled to India to see his parents.[15] He claims [Ms A] visited him and travelled between her home and his family home in India.[16]

    [14]       Delegate's decision, p 1.

    [15]       Delegate's decision, p 6.

    [16]       Delegate's decision, p 6.

38. When interviewed by the delegate, the applicant claimed that he wasn't harmed on this occasion but still suffered threats.[17] Yet, in the hearing, the applicant claimed that he was physically harmed on this occasion. When asked for details, his response was vague, claiming it was "the same thing". When pressed for more information, he claimed that it was only [Ms A’s] uncle who harmed him on this occasion. When pressed for further detail, the applicant responded that [Ms A’s] uncle "slapped him." The applicant claimed that he did not remember when the trip occurred other than it was one day in the evening. He claimed he was out with his friends, and his father called him to tell him to come home because relatives were coming over. He claims that when he came home, the uncle was already there and started slapping him.

    [17]       Delegate's decision, p 6.

    Return to Australia

39. The applicant returned to Australia in May 2011.[18] Following his return to Australia, the applicant has claimed that he continued to receive threats via [social media] and phone messages.[19] At the hearing before the Tribunal, despite the opportunity to do so, the applicant did not refer to having received any threats being received via [social media] or phone.

    [18]       Protection visa application, p 29.

    [19]       Delegate's decision, p 6.

40. At the hearing, the applicant's evidence was that after returning to Australia in 2011, he continued talking to [Ms A] on the telephone. He told her he would apply to add her to his visa so that she could travel to Australia. The applicant explained that he sent the documents necessary to add [Ms A] to his visa to his father, who organised the applicant with his agent in India. The applicant explained how it took nearly three years to get the documents [Ms A] needed for the application, including her passport, school certificates, and other relevant documents. The applicant also explained at the hearing how, during this process, the applicant became concerned that [Ms A’s] family lied about her age, asserting that she was 8-9 years older than him,[20] and her education.[21]

    [20]       See also protection visa application, p 39.

    [21]       See also protection visa application, p 39.

41. At some stage after his return to Australia in 2011, the applicant claims that his father wanted him to return to India. The applicant's evidence was that his father telephoned the applicant's friends in Australia and told them to "tie the applicant's hands and legs together and put him on a plane". I asked whether the applicant thought his father was serious about that. The applicant responded that he was and insisted that his father expected that not only would the applicant's friends do that to him but that his father considered that would be an acceptable way for the applicant to be returned to India by Australian authorities. In any event, the applicant claims that he stopped talking to his mother and father for years and stopped taking their calls following this incident. When I asked him the next time he spoke to either of his parents, his response was, "I don't exactly know." He later claimed that he never talked to his father after 2011, other than once or twice, and when he did his father would request that he return to India.

42. The applicant's evidence was that he could not return to India because he would always be the subject of threats from [Ms A’s] family. He claimed that [Ms A’s] family believed that he had ruined her life. The applicant claims that [Ms A’s] uncle is well known and that he can easily arrange to have people killed in India.

    2012 attack on the applicant's father

43. At the interview with the delegate, the applicant claimed that his father had been assaulted and was left in a coma for six or seven years.[22]

    [22]       Delegate's decision, pp 4, 7.

44. During the hearing, the applicant gave evidence that he had applied for a protection visa in either 2014 or 2015. He recounted an incident from 2012 or 2013 in which [Ms A’s] uncle allegedly sent several assailants to attack his father.

45. The applicant described that approximately eight to ten individuals, with their faces covered, entered his father's shop. These individuals allegedly assaulted his father with sharp objects, resulting in severe injuries that required [number] stitches on his head.

46. The applicant claimed that the attackers specifically asked for his father by name, and upon identifying himself, he was brutally attacked. Despite his father filing a complaint with the police, the applicant claims no action was taken. The applicant claimed that his father was hospitalised for 20 to 22 days due to the injuries.

47. The applicant mentioned submitting an untranslated police report to the Tribunal during his previous protection visa application. He further asserted that the Tribunal had previously accepted his account of [Ms A’s] uncle's involvement but had reasoned that he could relocate to Nepal.

48. I asked the applicant why he was certain that [Ms A’s] uncle was behind the attack and that it was not a criminal act. The applicant argued that India is not a "backwater country" and that the police could have identified the culprits "if they had wanted to". He expressed his firm belief that [Ms A’s] uncle was responsible because no charges were ever brought against anyone, and his father, according to him, had no other enemies.

49. The applicant further claimed that a few days or months after the attack, his father's health deteriorated, eventually leading to paralysis. When asked for specific dates, the applicant could not recall but mentioned that his father was bedridden for six to seven years until he passed away at the beginning of 2024. He concluded by stating that his father remained immobile, unable to talk or walk, from around 2016 or 2017 until his death.

    Life in Australia

50. The applicant asserts he is in a relationship with [Ms B], a Christian Indigenous Australian. Their relationship began in 2019, and they were married in September 2022.

51. He claims that he last saw [Ms B] two or three months ago, attributing their absence to a bacterial chest infection and a potential cancer diagnosis. However, cancer has not been confirmed or diagnosed. He claims to have experienced persistent coughing, including coughing up blood, over the past few months.

52. The applicant claims to have three children. The applicant is only the father of one of those children ('[Child A]'). [Child A’s] mother is [Ms C].

53. The applicant's evidence was that he could not communicate directly with [Ms C] due to a restraining order. Yet, the applicant was quick to allege that [Ms C] did not require protection from him and obtained the restraining order vindictively because the applicant had "moved on". However, the applicant also admitted to pleading guilty to an aggravated assault charge where [Ms C] was the victim.

1. At present, the applicant speaks to [Child A] through intermediaries. He last communicated with [Child A] two or three months ago. [Child A] is around [age] years old.

2. The other two children, [Child B] and [Child C], are biologically the children of [Ms B] and two different fathers. [Child B], who is nearly [age], and [Child C], who is almost [age]. He claims that [Child B] does not have contact with his biological father and that he regards himself as [Child B’s] father. Conversely, [Child C] regularly sees his father, [named], who works on a fly-in, fly-out basis.

3. Regardless, the applicant was clear in his evidence that he considers [Child A], [Child B], and [Child C] his children. The applicant provided several letters in support from members of [Ms B’s] family, among other things, attesting to the genuineness of their marriage and describing him as a positive role model.

4. Regarding his potential return to India, there was no serious suggestion that [Ms C] or his biological son would travel to India. The applicant claimed that [Ms B] and her children could not accompany him due to the danger.

5. The applicant initially suggested that [Ms B] might join him in India with her children. When pressed on this, the applicant conceded that it was implausible for at least two reasons. First, [Child C’s] father would not likely consent to his son relocating internationally to India. Second, [Child B’s] disabilities require serious medical care in Australia, which he could not receive in India. Yet, even after conceding that it was implausible that [Child C] or [Child C] could travel to India, he vaguely suggested that [Ms B] might move to India and leave her children behind in Australia. When I challenged the applicant on this, the applicant ultimately accepted that [Ms B] would not move to India under any circumstances, alone or with her children.

6. The applicant asserted that he is part of [Ms B’s] family and has been adopted into that family, with [Ms B] being an Indigenous Australian. When asked if he was claiming to be an Indigenous Australian by adoption, he responded, "I don't know, sir." He acknowledged that separation from [Ms B] and her [number] children in Australia would not constitute serious harm but expressed fear that the Brahmin community in India would harm them if they came to India.

7. At the interview, the applicant claimed that he was struggling with mental health in Australia and was taking medication for depression.[23] At the hearing, the applicant claimed that his mental health was poor. However, he admitted that he had not taken any medication for nearly 15 years and had not seen a psychologist at the detention centre for over two years. He did not provide any recent medical reports regarding his mental health or indicate what treatment he currently required or what treatment he might require if he returned to India.

   [23]       Delegate's decision, p 4.

8. Concerning his physical health, the applicant stated that it is poor, with a doctor suspecting he has lung cancer, though no diagnosis has been confirmed. He explained that a doctor found bacteria in his chest related to the tuberculosis virus. He is not currently on any medication but mentioned that the detention centre doctors might consider medication if his condition does not improve. He otherwise claimed that he is taking [specified] medication.

   Divorce

9. The applicant has provided a copy of a judgment from the Family Court sitting in Jalandhar dated [in] May 2017 concerning a divorce petition filed by [Ms A] against the applicant ('Divorce Judgment').[24]

   [24]       Divorce Judgment, p 1.

10. I am conscious that the Divorce Judgment is a product of proceedings that were heard ex parte without the applicant being heard. Nevertheless, the applicant has provided the document and it must be considered. The evidence of [Ms A] is that the applicant and his family mistreated her. She claims that the applicant would beat her when he was intoxicated "for want of dowry".[25] She claims she was turned out of the marital home about one month after their marriage; however, she was later permitted to return.[26]

    [25]       Divorce Judgment, p 4.

    [26]       Divorce Judgment, p 2.

11. She claims the applicant then travelled abroad without informing or providing his address. She claims that the applicant did not contact her when he was overseas.[27]

    [27]       Divorce Judgment, p 2.

12. The Divorce Judgment does not refer to the applicant returning to India in 2010 or 2011. It records findings that in the first week of January 2016, the applicant's parents turned [Ms A] out of the marital home.[28] The Divorce Judgment makes findings that immediately after marriage, the applicant and his family members started taunting, harassing, maltreating and demanding dowry from [Ms A]. It finds that the applicant used to "abuse, assault and beat" [Ms A] under the influence of alcohol.

    [28]       Divorce Judgment, p 2.

13. I am not aware of the reason [Ms A] would have had to lie in her evidence. Besides obtaining a divorce, [Ms A] did not appear to gain any particular financial or other advantage. [Ms A] does not seem to have been seeking the payment of money, an order to occupy a property or any other relief ancillary to the divorce. The applicant did not claim that she was seeking payment. However, when weighing the Divorce Judgment, I have adopted a cautious approach because it is not inconceivable [Ms A] may have succumbed to the temptation of embellishing her evidence, particularly if expecting it unlikely to be contested.

    Current fears

14. The applicant claims as a Brahmin Hindu, he is "strictly" not allowed to marry a Christian or marry outside his caste.[29] He fears harm, having done so in Australia.

    [29]       Protection visa application, p 41.

15. When I inquired why [Ms A’s] uncle might still wish to harm the applicant, he stated it was because he left [Ms A] for [Ms C] and now has a child with her. He explained that [Ms C] belonged to a different religion and caste, noting that she is not part of the caste system and is originally from [Country 3].

16. The applicant also mentioned that his brother attended a wedding in India about a year and a half ago, where people remarked, "We can't wait for [the applicant] to come back." Subsequently, his brother moved overseas. The applicant claims that he was last threatened in June 2023.[30]

    [30]       Protection visa application, p 6.

17. The applicant also claimed that the [Official 1 in] Punjab, [detail deleted], is a close acquaintance or associate of [Ms A’s] uncle, claiming that while ordinary people wait weeks for an appointment with the [Official 1], [Ms A’s] uncle can enter his office without an appointment. The applicant asserted that the [Official 1] would show deference to [Ms A’s] uncle, including by sitting on the feet of [Ms A’s] uncle and offering the chair at his desk to [Ms A’s] uncle. He could not explain how he knew this. Additionally, the applicant claimed that of the [number] attendees at his wedding, around [number] were police officers. He stated that [Ms A’s] uncle had threatened his family in India and asked if anyone other than members of [Ms A’s] family had threatened his family. The applicant responded that there had been no other threats, only from her uncle and occasionally her brother. I later reminded the applicant that he had previously claimed in his protection visa application that Indian authorities had made threats against his family's lives. The applicant said that had occurred.

18. The applicant asserted that [Ms A’s] family had levied "fake dowry charges" against him. He further claimed that if he were to return to India, he would face physical harm, be killed (potentially through 'honour killing'), or end up "laying next to my father." The applicant also stated that his [brother] had experienced threats and physical and mental abuse because of him, which resulted in his brother fleeing to [Country 1].

19. When I asked why [Ms A’s] uncle might still want to harm the applicant, he claimed it was because he left [Ms A] for someone else, and now he has a child with her. I discussed the applicant's child with him. He explained that the mother of his child is [Ms C]. He claims that she was of a different religion and a different caste. Indeed, she is not part of the caste system and is originally from [Country 3].

20. The applicant claims he cannot relocate within India because [Ms A’s] family will locate him. He also claims that he cannot relocate to Nepal because it is only 5-6 hours from his hometown, and most criminals travel to Nepal after committing crimes. He claims that relocating to Nepal will not "help.” He claims that [Ms A’s] uncle is well known and can easily find him regardless of whether he is in Nepal or India.

21. He claimed that [Ms A’s] family are powerful and were involved with the "RSS".[31]

    [31]       Delegate's decision, p 4. Rashtriya Swayamsevak Sangh, 'RSS', is an Indian right-wing, Hindu nationalist volunteer paramilitary organisation. See 2023 DFAT Report, [3.20] in relation to RSS.

22. The applicant claimed that he is no longer a Hindu and eats beef.[32] He clarified that he no longer practices Hinduism but does not practice any other religion. In the interview, he stated, "I just believe in one god."

    [32]       Delegate's decision, p 4.

23. The applicant claims that since he returned to Australia in 2011, he has not had any further contact with his wife. He claimed that whilst living in Australia, he received threats through social media and phone messages. He claims that he has since blocked those people.[33]

    [33]       Delegate's decision, p 4.

    The situation in India on return

24. At the hearing, the applicant argued that if he did not fear for his life, he would happily return to India. His evidence was that if he returned to India, he would be a wealthy man with a very large property that was entirely paid off. He also claimed that he would have many cars and motorbikes. He also claimed that he would have the services of servants in India, as he had before he left.

    Submissions

    Pre-hearing written submissions

25. The applicant provided two submissions to the Department, rhetorically answering questions. Both documents were prepared with the assistance of ‘ChatGPT,’ an artificial intelligence made by OpenAI.³⁴ Indeed, the applicant expressly adds to the answer to the first question, "[t]hese answer got them from Chat GPT."

26. I have considered these as submissions. The first question responds to "owner killing" [sic: honour killing]. The answer begins with, "The notion of whether it is possible for an owner to kill even after years have passed is a troubling and complex question." It then sets out various moral and philosophical arguments relating to killing.

27. The second question asks: "if a Hindu Brahman boy left his wife who he had arranged marry to than later left his wife for another Christian woman...and Turned into Christian and eat beef.." The answer begins:

    The situation of a Hindu Brahman boy leaving his wife after marriage for another Christian woman and indulging in the consumption of beef is undoubtedly a cause for concern and raises a multitude of objections on various levels. It is perhaps one of the most contentious and sensitive issues that can arise in a society where cultural and religious beliefs hold a significant place. In this essay, we will explore the five basic objections that can be raised in this scenario.

28. The response, which appears to be the product of 'ChatGPT', sets out five objections. They deal with, for example, the impact of the actions undermining the sanctity of marriage and family, engaging in taboo behaviour and concern about the local community's reaction.

    Country information provided

29. The applicant provided the Department with various screenshots from Google search results in relation to "owner killing" [sic: honour killing]. None of the underlying articles were provided. Many of the articles are from 2010, with others being more recent. Many are primarily concerned with honour killings of women.

30. I have taken these into account. That said, the material referred to by the applicant generally relates to honour killings. There is no real argument about that in this case. I readily accept that honour killings can and do occur in India. The issue in this case, among others, is the nature, extent and gravamen of the risk, if any, that the applicant himself faces as a result of the practice of honour killings.

    Post-hearing materials

31. Following the hearing, the applicant provided a letter of support from [Mr A]. The letter of support claims to be "quite familiar with his marital dispute" and the assault on the applicant "and his family." [Mr A] claims to know [Ms A’s] uncle and describes him as politically powerful and influential. [Mr A] also claims that [Ms A’s] uncle was involved in a "big police recruitment scam" in which many people lost lots of money, but [Ms A’s] uncle came out unscathed.

32. [Mr A] also refers to the potential for harm to the applicant and the potential suffering of the applicant's family. [Mr A] claims to have known the applicant for the past ten years (i.e. since 2014). He does not claim firsthand knowledge of the applicant’s claims; in that regard, his knowledge relies on the applicant's accounts. I do not regard the applicant as a credible or reliable witness for the reasons I set out below. I have considered [Mr A’s] evidence, but it does not change those conclusions. In those circumstances, I am not prepared to place significant weight on [Mr A’s] unsworn letter of support.

33. The applicant also provided a discharge summary for [Child B] dated [in] April 2024 from [Hospital 1]. That discharge summary indicated that [Child B] had surgery [specified].

    RELEVANT LAW

34. 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 either, they are a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or on other ‘complementary protection’ grounds, or are a member of the same family unit as such a person who holds a protection visa of the same class.

35. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.[34]

    [34]       AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227, [43] (Kenny, Griffiths and Mortimer JJ); EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804 at [148] (Ladhams J).

36. When assessing the claims made, there is no requirement to uncritically accept any or all of the allegations made.[35] Rebutting evidence is not required before finding that a particular factual assertion is not made out.[36]

    [35]       SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 (Middleton J).

    [36]       CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [65] (McKerracher, Griffiths and Rangiah JJ); Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347 at [7] (Heerey J).

    Refugee criterion

37. 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 decision‑maker 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.[37] 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.[38] Persecution must involve serious harm[39] and systematic and discriminatory conduct.[40]

    [37]       Migration Act 1958 (Cth), s 5H(1)(a).

    [38]       Migration Act 1958 (Cth), s 5J(1); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).

    [39]       Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act sets out non-exhaustive examples of serious harm.

    [40]       Migration Act 1958 (Cth), s 5J(4)(c).

38. For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm:

    (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.

39. A fear of persecution will be "well‑founded" if there is a "real chance" that the person will suffer the feared persecution if returned to the receiving country and the real chance relates to all areas of that country.[41] A "real chance" is a prospect that is not "remote" or "far‑fetched", it does not require a likelihood of persecution on the balance of probabilities.[42] Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person is taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which appear in the attachment to this decision.

    [41]       Migration Act 1958 (Cth), ss 5J(1)(b)-(c); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).

    [42]       DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407, 429.

    Complementary protection criterion

40. If a person is found not to meet the ‘refugee criterion’ in s 36(2)(a) of the Act, they may satisfy the 'complementary protection criterion' under s 36(2)(aa). That inquiry is prospective and asks whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a "necessary and foreseeable consequence" of return to the receiving country.[43] 'Significant harm’ is exhaustively defined in s 36(2A) of the Act.[44] Circumstances in which a person is taken not to face a real risk of significant harm are set out in ss 36(2A) and (2B), which appear in the attachment to this decision.

    [43]       DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).

    [44]       DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).

    Mandatory considerations

41. As directed[45], I have had regard to the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs and the DFAT Country Information Report.[46]

    [45]       See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No.84 made under that section.

    [46]       'DFAT Country Information Report India ', Department of Foreign Affairs and Trade, 29 September 2023, 20230929154911 ('2023 DFAT Report').

    Credibility

42. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. The task of fact-finding may involve an assessment of an applicant’s credibility. Assessment of credibility is an inherently difficult task.[47]

    [47]       See Fox v Percy [2003] HCA 22; 214 CLR 118 at [31] citing with approval the reasons of Samuels JA in Trawl Industries v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348 and the material there cited.

1. The assessment of the credibility and reliability of evidence given by asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably.[48] Caution is required when an account is given through an interpreter and in circumstances where a person may be distressed as they are fleeing persecution or facing the prospect of being returned to a country that they fled to avoid persecution.[49] Inconsistencies in an applicant’s account may or may not be significant.[50] I should give the benefit of the doubt to those who are generally credible, but are unable to substantiate all of their claims.[51]

   COUNTRY INFORMATION

   [48]       See AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 at [22]–[28] (Kenny, Griffiths and Mortimer JJ).

   [49]       See, for example, Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5] (Burchett J), W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD 757 at [15]–[19] (Lee, Carr and Finkelstein JJ); AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 at [22]–[28] (Kenny, Griffiths and Mortimer JJ) and ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271 at [39]–[45] (Griffiths, Mortimer and Steward JJ).

   [50]       ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271 at [39]–[45] (Griffiths, Mortimer and Steward JJ).

   [51]       Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; see also Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines); UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, HCR/1P/4/ENG/REV 4 at [203]–[204].

   Caste

2. Hindu tradition divides society into a hierarchy of hereditary caste groups associated with particular occupations.[52] Four main groups exist within the system’s hierarchy: Brahmin priests, intellectuals and teachers; Kshatriya warriors and rulers; Vaishya farmers, traders and merchants; and Shudra labourers.[53]

   [52]       2023 DFAT Report, [3.143].

   [53]       2023 DFAT Report, [3.143].

   Religion

3. According to 2011 census data (the most recent available), almost 80 per cent (more than 1 billion people) of the population of India is Hindu.[54] Another 14.2 per cent of people are Muslims (just under 200 million), 2.3 per cent are Christians (around 27 million), 1.7 per cent are Sikhs (just under 21 million) and less than 1 per cent are Buddhists (just under 10 million).[55]

   [54]       2023 DFAT Report, [3.9].

   [55]       2023 DFAT Report, [3.9].

4. DFAT reports the Constitution of India prohibits religious discrimination and guarantees the right to freely practise religion and the right for religions to manage their own affairs.[56] It also guarantees the right to propagate a religion except where that would affect the operation of some state laws.[57] DFAT also states that both religious pluralism and communal violence have a long history in India and that the situation has evolved in recent years with new political movements and the adoption of technology that can be used to disseminate information, and the use of social media to incite violence.[58]

   [56]       2023 DFAT Report, [3.10].

   [57]       2023 DFAT Report, [3.10].

   [58]       2023 DFAT Report, [3.11].

5. Research published in June 2021[59] found that 84 per cent of people say that to 'be truly Indian' it is important to respect all religions, and that more than 85 per cent people in each of the six major religious groups surveyed (Hindus, Muslims, Christians, Sikhs, Buddhists and Jains) felt that they were free to practise their own religion, and most of those agreed that other religious groups were similarly free to practise their religions.[60]  According to that survey, while high-profile occurrences are often covered extensively in the media, communal violence is not a day-to-day issue for most Indians.[61]

   [59]       Sahgal, et al, 'Religion in India: Tolerance and Segregation', Pew Research Center, 29 June 2021, <       2023 DFAT Report, [3.12].

   [61]       2023 DFAT Report, [3.9].

   Christians

6. Christians in India report discrimination. Hindu nationalists sometimes apply pressure to have churches shut down.[62] Newsweek reported in 2018 that more than 100 churches were shut down across several states because of building code violations or other local rules.[63] These closures were sometimes allegedly connected with protests by Hindu nationalist groups.[64]

   [62]       2023 DFAT Report, [3.57].

   [63]       2023 DFAT Report, [3.57].

   [64]       2023 DFAT Report, [3.57].

7. Acceptance and respect of Christianity by non-Christians differs from place to place.[65] Often, Christians are well-regarded in communities where they provide health care and education. Violence can occur, but this is not common.[66] The responses of the police can be mixed.[67]

   [65]       2023 DFAT Report, [3.55].

   [66]       2023 DFAT Report, [3.55].

   [67]       2023 DFAT Report, [3.59].

8. DFAT reports that:

   There have been examples of anti-church protests becoming violent. International media reported in December 2021 about a ‘swarm’ of men kicking down a door, punching pastors in the head and throwing women to the ground while chanting Hindu nationalist slogans in a church in Indore in Madhya Pradesh. Similarly, Aljazeera reported that there were more than 300 attacks (violence, disruption of services, vandalism) on Christians in the first nine months of 2021. The Guardian published similar reports from Chhattisgarh in October 2021.

   Conversion

9. Some states in India have laws that restrict religious conversion.[68] In February 2021, the federal government said in parliament that religious conversion was a state matter, and the government had no plans for a federal law on the issue.[69] 

   [68]       2023 DFAT Report, [3.13]; The states are Arunachal Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Odisha, Rajasthan, Uttarakhand, Uttar Pradesh and Karnataka.

   [69]       See 'No Nationwide Anti-Conversion Law Planned, Says Centre In Parliament', Neeta Sharma, NDTV, 2 February 2021, 20210204104057.

10. Those laws are, however, directed towards 'forced' conversion.[70] They do not ban conversions directly; instead, they ban conversions obtained through ‘force’, ‘allurement’, ‘inducement’ or ‘fraud’.[71] Some Christians claim to be targeted by anti-conversion laws.[72] Some low-caste Hindus have converted to escape the caste system.[73]

    [70]       2023 DFAT Report, [3.14].

    [71]        2023 DFAT Report, [3.14]; '2022 Report on International Religious Freedom: India', US Department of State, 15 May 2023, p.6, 20230516092810; 'Freedom in the World 2023 - India', Freedom House, 9 March 2023, section D2, p.10, 20230315165039.

    [72]       2023 DFAT Report, [3.15].

    [73]       2023 DFAT Report, [3.16].

    Honour killings

11. As already indicated above, I have no difficulty in accepting that honour killings can and do occur in India. ‘Honour killings’ occur when families feel that the honour of their family is jeopardised, often where a woman’s virginity or ‘marriageability’ is ‘lost’, for example.[74] Such violence may also occur when women seek to divorce or separate from an abusive husband. Honour killings can occur regardless of age, religion, social status, wealth or other factors – the risk is particular to each victim and their families.[75]

    [74]       2023 DFAT Report, [3.124].

    [75]       2023 DFAT Report, [3.124].

12. Honour crimes, including acid attacks and homicides, are a possibility.[76] While these crimes are mostly associated with violence against women, they can be perpetrated against men, particularly in cases of inter-faith and inter-caste marriage.[77]

    [76]       2023 DFAT Report, [3.138].

    [77]       2023 DFAT Report, [3.138].

    Interfaith or inter-caste marriage

13. Interfaith and inter-caste marriages are legal and occur occasionally. However, many Indian families still prefer marriages arranged within their religion and caste.[78]

    [78]       2023 DFAT Report, [3.136].

14. Most marriages in India are arranged marriages, and the family of the prospective marriage partner will choose a spouse based on faith and caste considerations.[79] A marriage outside this system is known as a ‘love marriage’.[80]

    [79]       2023 DFAT Report, [3.136].

    [80]       2023 DFAT Report, [3.136].

15. An inter-caste or interfaith marriage will not necessarily lead to violence, but it can. Those who choose to marry outside their religion or caste may experience shunning or violence from their families. Still, the outcome depends on the family, and there is no typical pattern of reactions.[81]

    [81]       2023 DFAT Report, [3.136].

    Non-practicing Hindu / Beef Consumption

16. Since the election of the BJP government in 2014, there has been sustained media attention on the issue of Hindu nationalism, sometimes known as Hindutva, roughly translated as ‘Hindu-ness’. A key aim of Hindu nationalism is to ‘restore’ the pre-eminence of Hindu culture-civilisation in India.[82]

    [82]       2023 DFAT Report, [3.19].

17. The most prominent Hindu nationalist group is the Rashtriya Swayamsevak Sangh (RSS) and its many affiliated organisations.[83] The RSS has overseas affiliates, including branches in Australia (called the Hindu Swayamsevak Sangh).[84]

    [83]       2023 DFAT Report, [3.20].

    [84]       2023 DFAT Report, [3.20].

18. Cows are sacred to Hindus.[85] The slaughter of cows is banned in most Indian states.[86] So-called 'cow vigilantism' generally involves groups of men who find and attack people, usually religious minorities, who allegedly interfere with cows, for example, across State lines. Victims are often beaten, sometimes to death. DFAT reports that these incidents are not common.[87]

    [85]       2023 DFAT Report, [3.16].

    [86]       Alluri, 'Meat ban: India isn't vegetarian but who'll tell the right wing', BBC News Delhi, 8 April 2022, <       2023 DFAT Report, [3.26].

19. DFAT also reports that:[88]

    Communal disputes occur around other issues cultural differences, for example non-vegetarian food. The New York Times reported in December 2021 that city officials seized or overturned stalls selling eggs and meat products in Ahmedabad because of complaints by Hindus that non-vegetarian food sales hurt their religious sentiments. DFAT is not aware of a pattern of incidents.

    When violence by Hindu nationalists occurs, it attracts significant media attention. Violent incidents are often perpetrated by extremists and fringe groups. While those groups are loud and can amplify their voices widely through social media, incidents of violence such as those described above are not day-to-day occurrences. While uncommon, when they do occur, they can lead to fatalities. Hindu nationalists enjoy a significant amount of political and social capital and DFAT assesses that they experience a low risk of social or official discrimination.

    [88]       2023 DFAT Report, [3.27]-[3.28].

20. Most Indians do not abstain from meat altogether – only 39% of Indian adults describe themselves as “vegetarian”.[89] Whist Hindu texts often praise vegetarianism, and only 44% describe themselves as vegetarian.[90] Dietary traditions influence concepts of religious identity and belonging, with Indian adults being generally more likely to claim that following religious dietary restrictions is a requirement for religious identity than to claim that belief in God and prayer are essential.[91] It is reported that 72% of Hindus say someone cannot be Hindu if they eat beef.[92]

    [89]       Corichi, 'Eight-in-ten Indians limit meat in their diets, and four-in-ten consider themselves vegetarian', Pew Research Center, 8 July 2021, < see also, Sahgal, et al, 'Religion in India: Tolerance and Segregation', Pew Research Center, 29 June 2021, <       Corichi, 'Eight-in-ten Indians limit meat in their diets, and four-in-ten consider themselves vegetarian', Pew Research Center, 8 July 2021, < see also, Sahgal, et al, 'Religion in India: Tolerance and Segregation', Pew Research Center, 29 June 2021, <       Corichi, 'Eight-in-ten Indians limit meat in their diets, and four-in-ten consider themselves vegetarian', Pew Research Center, 8 July 2021, < see also, Sahgal, et al, 'Religion in India: Tolerance and Segregation', Pew Research Center, 29 June 2021, <       Corichi, 'Eight-in-ten Indians limit meat in their diets, and four-in-ten consider themselves vegetarian', Pew Research Center, 8 July 2021, < see also, Sahgal, et al, 'Religion in India: Tolerance and Segregation', Pew Research Center, 29 June 2021, <>

    However, whilst many upper-caste Hindus do not eat beef, millions of Dalits, Muslims and Christians across India do.[93]

    [93]       Alluri, 'Meat ban: India isn't vegetarian but who'll tell the right wing', BBC News Delhi, 8 April 2022, <>

    There are reports of Hindu vigilante mobs who 'attack and kill' beef-eating Muslims.[94] Yet, some argue that the violence is not necessarily linked to the consumption of beef. Still, rather, the consumption and slaughter of beef are used as a justification for violence against religious groups[95] and castes.[96]

    [94]       Lateef, 'Surge in Hindu vigilante mobs who 'attack and kill' beef-eating Muslims', Telegraph UK, 9 April 2023, <       See, for example, Siyech and Narain, 'Beef-related Violence in India: An Expression of Islamophbia', Islamophobia Studies Jounrla, Vol. 4, No 2, (Spring 2018), pp 181-194, <       See, for example, ;Doing Sociology, 'Beef, Brahmins, and the Sacred: Navigating the Socio-Political Dynamics of the Indian Holy Cow – Sahil Singh', 16 April 2024, < FINDINGS AND REASONS

21. The issue in this review application is the applicant satisfies one of the alternative criteria in s 36(2)(a) or (aa) of the Act. There is no suggestion he satisfies the criteria in s 36(2)(b) or (c) of the Act.

22. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or is for the reason claimed.[97] Similarly, that an applicant claims to face a real risk of significant harm does not establish that the harm feared amounts to ‘significant harm’ or that such a risk exists.

    [97]     Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 1997 CLR 559 at [124] (Brennan CJ; Dawson, Toohey, Gaudron, McHugh, Gummow JJ).

23. I have determined that the applicant does not satisfies either s 36(2)(a) or (aa) of the Act. In those circumstances, the decision under review should be affirmed.

    Credibility

24. I have carefully considered the credibility and reliability of the applicant's evidence. However, I have several concerns about his credibility and the consequent reliability of aspects of his evidence. 

    Inconsistency of evidence

25. This is the second time that the applicant has made protection claims. Yet, the applicant has provided inconsistent accounts of the harm that he has allegedly experienced. First, before the Tribunal in 2015, the applicant's evidence was that he had not experienced any harm or trouble when he travelled to India in 2010 or 2011 and had not spoken with [Ms A’s] family since the wedding.[98] Second, when interviewed by the delegate, his evidence was that he was harmed when he was in India during 2010 but was not harmed, only threatened, whilst in India during 2011.  At the hearing, he claimed that he was physically harmed during both visits to India in 2010 and 2011.

    [98]       1504601 (Refugee) [2016] AATA 3674 at [22].

26. I put information from the decision of the Tribunal concerning the applicant's first protection visa application to him under s 424AA of the Act. The information included that in proceedings before the Tribunal concerning his first protection visa application, the applicant's evidence was that he had not spoken to [Ms A’s] family since the wedding and experienced no harm when he returned to India in 2010 and 2011. At the hearing, I put to the applicant that his evidence now was different to the evidence he gave in 2015 and explained that might lead me to reject his claims as being credible. I explained the operation of s 424AA(1)(b)(a)(iii)-(iv). No request for an adjournment was sought. The applicant indicated that he understood that information and why it was relevant.

27. The applicant sought to respond to the information by arguing that he could not return to India. He claimed that he has a house with more than 20 rooms. He referred to having had servants. He argued that his brother had been asking him to move to [Country 1] and that he could easily move to [Country 1]. He argued that he would not have lived in detention since 2020 if he was not in fear for his safety in India. He argued that he came from a good family and could show videos of his own house in India. He argued that he was a wealthy man in India, and if he did not face harm from [Ms A’s] uncle, he would be safe in India. He argued that if he were safe, he would be in India, living a better life where he did not have to work for anything, but he chooses not to because he fears harm. His fear, he argues, is why he has accepted living in detention. He claimed that when he had a child with [Ms C], that hurt [Ms A’s] family. He claims that [Ms A’s] family discovered it through a Facebook photo.

28. The applicant's comments did not directly engage with the apparent inconsistency in his evidence. Hence, I brought the applicant back to the inconsistency between his evidence before the Tribunal in 2015, his claims at the interview and the evidence that he gave at the hearing in this review application. The applicant claimed that he might not have counted the second incident. I attempted to explore the fact that there appeared to be three different narratives: no harm in 2010 and 2011, harm in 2010 only, and harm in 2010 and 2011. The applicant claimed he was telling whatever he remembered but was under pressure and stressed.

29. Otherwise, the applicant claimed it was mostly his father who spoke with [Ms A’s] family. Quite how that reconciles having no contact with [Ms A’s] family following the wedding with being attacked and directly threatened by [Ms A’s] uncle, on more than one occasion, and brother is unclear.

30. I do not accept that the applicant's inconsistent accounts are due to a failing memory, stress, or pressure. The inconsistency in his various accounts causes me to have very significant doubts about his overall credibility.

1. There were other inconsistencies in the applicant’s evidence. For example, at the hearing, I asked whether anyone other than [Ms A’s] family had threatened the applicant's family. The applicant's evidence was that there had been no one else, only the uncle and sometimes her brother. I later put to the applicant that he had claimed in his protection visa application that the authorities in India had made threats against his family's life. Only then did the applicant claim that the authorities had made threats against his family. I do not consider that the applicant would have forgotten that his family has been threatened by the authorities in India.

2. I also consider it implausible that the applicant would have willingly returned to India in 2011 if he had been harmed in 2010, as he claimed.

   RESOLUTION OF CLAIMS

3. While past harm can indicate future harm, the real chance test is essentially prospective. Moreover, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or is for the reason claimed.[99] Similarly, that an applicant claims to face a real risk of significant harm does not establish that the harm feared amounts to ‘significant harm’ or that such a risk exists.

   [99]     Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 1997 CLR 559 at [124] (Brennan CJ; Dawson, Toohey, Gaudron, McHugh, Gummow JJ).

   Country of nationality

4. The applicant claimed to be a national of India and travelled to Australia on a passport that appears to have been regularly issued by that country. I am satisfied that India is the applicant’s country of nationality and the receiving country.

5. In Mabo v Queensland [No 2], Brennan J said that "[m]embership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person's membership by that person and by the elders or other persons enjoying traditional authority among those people".[100] The applicant did not claim to have biological descent from the Indigenous people of Australia and, therefore, cannot satisfy the tripartite test to be an Aboriginal man. I do not accept that the applicant is an Indigenous Australian or Aboriginal man based on his "adoption" by [Ms B's] Aboriginal family.

   [100]        Mabo v Queensland [No 2] (1992) 175 CLR 1 at 70.

   Credibility

6. I do not consider the applicant a credible or reliable witness as it relates to his claims. I do not accept that his willingness to remain in immigration detention is demonstrative of his having a genuine fear of harm, particularly whilst he has strong ties to Australia in the form of a wife and children.

7. That said, I am prepared to accept that the applicant does not currently practice Hinduism. I accept that he and his family are of the Brahmin caste, the highest caste in India.[101] The applicant has been consistent in his claims in this regard. I accept the applicant would be identified in India as a Brahmin Hindu due to his name and that, on this basis, he would be expected by members of his community to observe the Hindu religion on return. I accept that he would not practice Hinduism on return to India and that his family and the Brahmin community may not approve of this.

   [101]       ‘What is India's caste system?’, BBC News, 26 February 2016, CX6A26A6E1577;  ‘IND200260.E - India: Application of the caste system outside of Hinduism; treatment of lower castes by society and the authorities; availability of state protection for lower castes; ability of lower castes to relocate and access housing, employment, education and healthcare in Mumbai, Delhi and Bangalore (2015-June 2020)’, Immigration and Refugee Board of Canada, 16 June 2020, 20200714151705

   Harm feared by [Ms A’s] family and police

8. I accept that the applicant was married to [Ms A] in an arranged marriage. Based on the divorce judgment, I accept that they were divorced in 2017.

9. However, based on my conclusions regarding the applicant's credibility, I do not accept that the applicant was ever previously harmed by [Ms A’s] uncle or brother(s). I also do not accept that he was threatened with harm by [Ms A’s] family.

10. I do not accept that [Ms A’s] uncle can exert significant, let alone any, influence over local police. I do not accept that the [Official 1] in Punjab is deferential to [Ms A’s] uncle in any way.

11. I do not accept that [Ms A’s] uncle was involved with RSS. No such claim was made when the applicant previously applied for protection. No credible or persuasive evidence, beyond the applicant's claims, has been presented to demonstrate that [Ms A’s] uncle or [Ms A’s] family are involved with or have ties to the RSS.

12. Whilst I accept that [Ms A’s] family probably disliked the applicant and were hurt by what would, objectively, potentially appear to be his abandonment of her, I do not accept that they would seek to seriously harm the applicant if he were returned to India.

13. Whilst I am prepared to accept that the applicant's father was attacked in 2012, I do not accept that the attack was organised by [Ms A’s] uncle or that [Ms A] ensured that Police did not investigate.

14. I do not accept that the applicant faces a real chance of serious harm for any reasons related to his marriage to, and subsequent divorce from, [Ms A].

    Dowry

15. Concerning the dowry claim, the applicant said that he didn't remember taking a single cent when they got married. He, however, postulated that his father may have taken something. The applicant's evidence was that nothing else happened besides the single incident of being slapped by the uncle on this occasion. He was told to keep her happy; otherwise, the consequences would be "really bad."

16. The applicant claims that [Ms A’s] family had levied "fake dowry charges" against him.[102] No cogent evidence of such charges has been produced. I do not accept that 'fake dowry charges' have been levied against him, and I do not accept that the applicant faces a real chance of serious harm arising out of any fake dowry charges.

    [102]       Protection visa application, p 39.

    Inter-caste and inter-religion marriage

17. The applicant claims as a Brahmin Hindu, he is "strictly" not allowed to marry a Christian or marry outside his caste.[103] He fears harm having done so in Australia. Yet, I have found that he will not be returning to India with his Christian wife or with children.

    [103]       Protection visa application, p 41.

18. Based on the available country information, I find that the applicant does not face a real chance of serious harm due to having had a child with a woman in Australia who is not Indian or of Brahmin caste, or due to having married an Indigenous Australian.

19. Interfaith and inter-caste marriages in India are legal and do occur. Interfaith or inter-caste marriages can lead to shunning or violence; it is not a typical or universal outcome. Many individuals in such marriages do not experience violence, and the social consequences can vary widely based on the family's attitudes and social environment. While many families still prefer marriages within their religion and caste, and there may be instances of shunning or violence, these outcomes depend significantly on individual family dynamics and the individual context. There is not, in my view, any consistent pattern or predisposition towards violence against individuals in such marriages.

20. The existence of honour crimes, including against men in cases of interfaith and inter-caste marriages, is recognised. However, these incidents are context-specific and not, in my view, demonstrative of a widespread issue. The applicant has not provided evidence that his family or community would specifically target him for serious harm due to his marriage or having a child outside his caste and nationality.

21. While violence, including from Hindu nationalist groups, does occur, it is often not common and tends to attract significant media attention when it does. Such incidents are usually isolated and perpetrated by extremists rather than a regular occurrence faced by all individuals in inter-caste or interfaith relationships. According to DFAT, incidents of violence from Hindu nationalist groups are not common and do not constitute a day-to-day risk for most Indians. The applicant's fear of harm must be considered in this broader context of overall low risk.

22. While there are acknowledged risks associated with inter-caste and interfaith marriages, the applicant does not face a real chance of serious harm on these grounds given the legal protections, the variable nature of social reactions, and the overall context of relatively low levels of violence towards individuals in such situations. The country information does not support a conclusion that there is a real chance of serious harm on this basis. I am satisfied that any risk of harm is properly described as remote or far-fetched. I do not consider the applicant's 'adoption' by [Ms B’s] family to alter that conclusion.

    Hindu who consumes beef

23. I could not locate any country information, nor has the applicant provided any, that indicates that Hindus who eat beef are systematically, routinely, often or even infrequently targeted for harm. I likewise could not locate any country information that persons who are or are imputed to be non-practising Hindus are similarly targeted.

24. Based on the provided country information, I find that the applicant, a Hindu (or non-practising Hindu) who eats beef, does not face a real chance of serious harm on that basis.

25. While the consumption of beef by Hindus can be a sensitive issue in India due to cultural and religious sentiments, it is not uniformly enforced or policed across the country. Incidents of violence related to beef consumption are often isolated and perpetrated by extremist groups. The targets are usually persons associated with the slaughter of cows as opposed to persons consuming beef. In my view, the country information demonstrates that Hindus who choose to eat beef do so without facing serious harm.

26. Furthermore, the Indian legal system protects against discrimination and violence. While there have been instances of cow vigilantism, these do not indicate a consistent pattern of harm faced by all individuals who consume beef. Law enforcement and judicial responses to such incidents aim to curb extremist activities and protect individuals' rights.

27. I am satisfied that the applicant does not face a real chance of serious harm as a Hindu who eats beef. The risk of encountering violence is remote, and legal protections exist to address, minimise and prevent such occurrences.

    Separation from wife, child and step-children

28. I accept that if the applicant were returned to India, he would be separated from his wife, [Child A], [Child C], and [Child B]. Whilst this is undoubtedly extremely upsetting, I am not satisfied that returning the applicant to India, in circumstances where his wife, [Child A], [Child C], and [Child B] would all remain in Australia, involves serious harm as that term is non-exhaustively defined in the Act.

    Mental health

29. I am prepared to accept that the applicant has suffered from anxiety and depression. The applicant no longer takes any medication. He has not seen a psychologist for more than two years. I am prepared to accept that the applicant may experience anxiety and depression if he is returned to India. However, there is no country information before me to indicate that the applicant would be unable (as opposed to unwilling) to obtain treatment for any mental health difficulties in India. There is no evidence about how the applicant's mental health manifests or whether the manifestation of any underlying condition would be such to expose him to harm.

30. In all the circumstances, I am not satisfied that the applicant faces a real chance of serious harm now or in the reasonably foreseeable future if he is returned to India.

31. Moreover, section 36(2)(a) is not directed to whether a person suffers from an illness. Such an illness would not, without more, involve systematic and discriminatory conduct. A claim that an application would suffer depression on return does not satisfy the refugee criterion in s 36(2)(a).[104]

    DOES THE APPLICANT MEET THE REFUGEE CRITERION?

    [104]       See, for example, CSV15 vMinister for Immigration and Border Protection [2018] FCA 699 at [30]-[31] (Collier J).

    Does the applicant have a well-founded fear of persecution?

32. Having regard to the above, I do not accept that the applicant faces a real chance now, or in the reasonably foreseeable future, for any of the reasons claimed or for any other reason.

33. I have also considered the applicant’s claims cumulatively. Whilst aspects of the various claims may combine to lead to a cumulative increase in the applicant's risk of harm, I am not satisfied that any accumulation of risks results in the applicant facing more than a remote chance of serious harm. I am not satisfied that a cumulative consideration of the applicant's claims would result in a conclusion that the applicant has a well-founded fear of persecution.

34. I am not satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J(1) of the Act. In those circumstances, it is not necessary for me to determine whether s 5J(2) or (3) apply to the applicant.[105]

    [105]       ESD17 v Minister for Immigration and Border Protection [2018] FCA 1716 at [24]–[25] (Rangiah J).

35. I am not satisfied that the applicant is a refugee within s 5H(1) of the Act. The applicant does not meet the criterion in s 36(2)(a).

    DOES THE APPLICANT MEET THE COMPLEMENTARY PROTECTION CRITERION?

36. To be entitled to complementary protection, there must be substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that they will suffer significant harm.[106]

    [106]       Migration Act 1958 (Cth), s 36(2)(aa); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).

37. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[107] To the extent that the factual bases for claims under s 36(2)(a) and s 36(2)(aa) overlap, a decision-maker, when considering the complementary protection criterion under s 36(2)(aa), is entitled to refer to and rely on any relevant findings the decision-maker made when considering the refugee criterion under s 36(2)(a).[108]

    [107]       Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at [246] (Lander and Gordon JJ), at [296] (Besanko and Jagot JJ), and at [342] (Flick J).

    [108]       DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [27] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) and the authorities there cited.

38. It is well established that being separated from one’s children does not constitute significant harm.[109] Significant harm does not include self-harm or harm the applicant suffers arising from mental illness where such harm arises because of the applicant’s removal to their home country and not due to harm intentionally inflicted on an applicant by ‘others’.[110] Moreover, a lack of available medical treatment does not involve the intentional infliction of harm and cannot, for that reason, constitute significant harm as that term is exhaustively defined.[111]

    [109]       SZRSN v Minister for Immigration and Citizenship [2013] FCA 751 (Mansfield J).

    [110]       GLD18 v Minister for Home Affairs [2020] FCAFC 2 at [88]–[89] (Allsop CJ and Mortimer J); see also CSV15 v Minister for Immigration and Border Protection [2018] FCA 699 (Collier J); CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089 (Reeves J).

    [111]       See Afu v Minister for Home Affairs [2018] FCA 1311 at [61]–[62] (Bromwich J).

39. I have already found that the applicant does not face a real chance of serious harm. On that basis, I find that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal from Australia to India, there is a real risk that they will suffer significant harm. I am not satisfied that the applicant will be exposed to significant harm for any other reason, including in the cumulative consideration of his claims.

40. Whilst I accept that the applicant does not wish to return to India, I conclude that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that they will suffer significant harm. The applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

41. For the reasons set out above, I do not accept that the applicant is owed complementary protection or otherwise meets the complementary protection criterion in s 36(2)(aa) of the Act.

    CONCLUSION

42. The applicant is not a person in respect of whom Australia has protection obligations under the refugee criterion in s 36(2)(a).

43. I have also considered the alternative criterion in s 36(2)(aa). I find that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa).

44. There is no suggestion that the applicant satisfies s 36(2) by 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 s 36(2) of the Act.

    DECISION

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

    Fraser Robertson
    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