2410566 (Refugee)

2410566 (Refugee) [2024] AATA 3856 (16 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2410566
COUNTRY OF REFERENCE:                   India
MEMBER:Sophie Manera
DATE:16 August 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 August 2024 at 8:52am

CATCHWORDS
REFUGEE – protection visa – India – political opinion – Aam Aadmi Party (AAP) – fear of the Bharatiya Janata Party (BJP) – credibility issues – lack of detail and vagueness – internal inconsistencies – delay in seeking protection – voluntary return to receiving country – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 56, 65, 424A, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 April 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [age]-year-old man and an Indian citizen. He applied for the visa on 28 March 2024. In a written statement provided to the Department on 28 March 2024 in support of his protection visa application, the applicant claims as follows:
·He last entered Australia [in] April 2018;
·He and his family support the Aam Aadmi Party (AAP) and have installed party flags outside their house;
·The AAP won 62 seats in Delhi and a majority in Punjab, while the Bharatiya Janata Party (BJP) only secured 8 seats. This result triggered BJP party members’ hatred of AAP supporters;
·The BJP party sent many goons to the applicant’s family home. His wife and parents were beaten and critically injured;
·They lodged a First Incident Report (FIR) with the [Location 1] police station, but no action was taken by the police. Pressure was put on the applicant’s family members to withdraw the complaint or they would kill him;
·The applicant’s family has advised him not to return to India;
·The BJP party has arrested the national convener of the AAP, Arvind Kejriwal;
·The BJP party leader Amit Shah is the current Home Minister of India under whose instructions all activity takes place;
·The applicant and his family continue to be threatened. It is too much mental and physical harassment for him;
·If the applicant returns to India, BJP party members will get hold of him and they may kill him, like they have tried in the past to hurt his family members. They will find him anywhere in India.
The applicant also provided the Department with a news article dated 24 March 2024 stating that Arvind Kejriwal had been arrested by the Enforcement Directorate on 21 March 2024.
The applicant was not invited to an interview to discuss his claims for protection. Instead, on 12 April 2024 the applicant was sent correspondence inviting him to provide additional information about his claims under s 56 of the Act. The applicant did not respond to the s 56 invitation.
The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
On 4 May 2024 the applicant made a valid application for review under s 412 of the Act. The applicant provided a copy of the delegate’s decision to the Tribunal.
The applicant appeared before the Tribunal by videolink on 8 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
During the hearing, the Tribunal invited the applicant under s 424AA of the Act to comment on information that would be the reason, or part of the reason, for affirming the decision under review. The Tribunal invited the applicant to comment on email correspondence between him and [a travel agency] in August 2020, stating in the subject line that he wanted to go back to India. The Tribunal put to the applicant that his enquiry into returning to India was inconsistent with his claim that he cannot return to India as he will be harmed or jailed upon return, due to his involvement in politics dating back to 2014, and his enquiry into returning to India in 2020 may lead the Tribunal to find that he does not genuinely fear returning to India, and may not face a real chance or real risk of serious or significant harm upon return to India.
During the hearing, the Tribunal gave the applicant a period of 2 weeks to provide any further documents or information to support his claims for protection, such as evidence of his membership of the AAP. The applicant did not provide any further documents or information after the hearing.
On 8 July 2024 the Tribunal also invited the applicant in writing under s 424A of the Act to comment on the same information raised in the s 424AA invitation put to the applicant during the hearing. The applicant did not respond to the s 424A invitation within the time provided.
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). 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
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality
In his application for a protection visa, the applicant claims to be a citizen of India, born in [Village 1], Punjab province.
The applicant provided a scanned colour copy of his passport bio-data page in support of his protection visa application. This document states the place of issue is [City 1].
There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that he is a citizen of India, and as such his protection claims will be assessed against India as the country of reference and ‘receiving country’ respectively.
Analysis, findings and reasons
In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also aware that if it makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[1] However, the Tribunal is not required to accept uncritically any or all of the allegations made by the applicant. Furthermore, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant is not made out.[2] The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is for the reason claimed or that it is well founded. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
[1] MIMA v Rajalingam (1999) 93 FCR 220.
[2] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348.
The Tribunal did not find the applicant’s evidence credible. In reaching this view, it had regard to internal inconsistencies within the applicant’s evidence and vagueness in the oral evidence given by the applicant, as well as other reasons detailed below.
Lack of detail and vagueness
During the hearing the Tribunal asked the applicant to discuss his interest in politics. The applicant said that his father had been a local councillor, which is how the applicant’s interest started. The applicant also said that he was interested in cricket. The Tribunal then specifically asked the applicant whether he was a member of a political party, to which he responded that he was a member of the AAP. The Tribunal asked the applicant to provide comprehensive details of his association with the AAP. The applicant said that his family was involved with the Congress Party and in 2014 he started supporting the AAP. When asked why he decided to join the party, the applicant said that everyone was saying that they were doing good things. The Tribunal asked the applicant to describe the purpose and objectives of the AAP. The applicant said that the purpose was to help society do better for the community to ensure that no one would get harmed. His involvement in the party meant that he participated in rallies and went to nearby houses to educate people about the AAP. He last attended a rally in approximately April 2017 with approximately 30,000 others.
The Tribunal asked the applicant to describe his current political opinions, and the applicant said that he is thinking the same way as before about the AAP. He said he has never expressed his political opinion online. He has not been involved in politics in Australia. His father passed away 14 years ago. His wife and mother are not involved in politics.
The Tribunal put to the applicant that his written statement lacked key details of his claims about having a political profile in India and coming to the adverse attention of the BJP. The applicant responded that he was requesting the Australian government to give him another year in Australia to find an alternative visa option. The Tribunal also informed the applicant that during the hearing he had been unable to answer some questions, for example, when asked where he would go if obliged to return to India and what would he do. The applicant said that he was not very good at answering questions. He again asked for time to find an alternate way to remain in Australia. The Tribunal also put to the applicant that country information indicated that, overall, participants in Punjabi politics face a low risk of official or societal discrimination or violence.[3] The applicant responded that there was a risk. However, he did not explain how he had a heightened risk over others, nor why he personally faced a risk, nor what the risk involved for him. The Tribunal considers the applicant’s answers vague and undetailed. The Tribunal does not consider the applicant’s answers adequately respond to the Tribunal’s questions or concerns. The Tribunal would have expected the applicant to provide further details of any threats or harm faced in India, and further detail of the risk to him and why he cannot return to India. The Tribunal found the applicant’s evidence of his claimed fears vague and unpersuasive.
[3] DFAT Country Information Report India, 29 September 2023 at 3.102.
The Tribunal also put to the applicant that there were inconsistencies between the claims in his written statement and the oral evidence given during the hearing. For example, in his written statement he had written that it would not be possible to move to another part of the country as he was sure that his assailants would find him where he goes. However, during the hearing he said that he would be safe in another part of India, however he could not afford to relocate. The applicant responded that he lodged this protection visa application because he was stressed and feared harm. The Tribunal finds this answer vague and it does not adequately address the Tribunal’s concern about the internal inconsistency in his evidence. The Tribunal cannot reconcile the evidence given in the applicant’s written statement, submitted to the Department on 28 March 2024, with the oral evidence given approximately 3 months later.
The Tribunal put to the applicant that, according to the Departmental decision record, he had been invited under s 56 of the Act to provide further information about his claims for protection. The Tribunal put to the applicant that he did not respond to this request, which undermined his credibility as it would have expected him to provide further information, details or evidence to support his claims, or provide an explanation of why he could not provide the information. The applicant said that the Department was asking for evidence, but he could not provide this as he was in immigration detention. The Tribunal informed the applicant that it appeared the Department was asking for more than just documentary evidence; they were asking for further detail and explanations. The Tribunal informed the applicant that he may have been able to provide this further detail to the Department. The applicant said that he asked one of his friends to write a letter, however he did not explain whether this was actually done or, if so, why he did not provide this to the Department. He also said that his wife is not educated and would not be able to obtain evidence for him. The Tribunal does not accept the applicant’s response. This is because the applicant was able to complete and lodge his protection visa application and attach a written statement despite being in immigration detention. He was previously able to provide a written statement with the assistance of a friend. The applicant did not explain why he was not able to use the assistance of a friend to respond to the Department’s concerns. On his evidence, the applicant was aware of the s 56 request and chose not to respond. The Tribunal finds the applicant’s failure to respond to the s 56 invitation further undermines the credibility of his evidence.
Claimed past harm
At the start of the hearing, the Tribunal asked the applicant whether he understood the contents of his protection visa application and whether he had any clarifications he wished to make. The applicant said that one of his friends helped him prepare the application form and statement, but he knew the contents and confirmed that everything was correct.
The Tribunal asked the applicant to discuss any problems he had experienced in India. The applicant said that the leaders of the BJP were big people, and he is a poor person. The Tribunal then pressed the applicant to provide specific details such as when any incidents occurred and who was involved. The applicant said that members of the BJP are threatening his family in India. He said that he had not been threatened as he is in Australia. The applicant said that people call his wife’s mobile number and tell his wife that if they see the applicant they will put him in jail. She first received a call in 2023 and then received calls from private numbers every one to 2 months.
The applicant also said that while he was still in India, he was asked by members of the BJP to leave the AAP and join their party. This started when he joined the AAP. The last time this happened was in approximately mid-2017.
The Tribunal asked the applicant whether there had been any other instances of threats to him or his family, or any other instances of harm that he wished to discuss. The applicant responded there was nothing further.
The Tribunal put to the applicant that his oral evidence was inconsistent with the written statement he provided to the Department in support of his application. In his written statement, he stated that goons had gone to his family home and beat his wife and parents until they were critically injured. However, during the hearing the applicant said that his family members have not been harmed. The applicant responded that his family members had been threatened verbally, and they might be harmed by BJP members. The Tribunal is concerned by the significant difference in the claimed instances of past harm between the applicant’s written statement and his oral evidence given at the hearing. In his written statement, his wife and parents were critically injured. In his oral evidence, his wife has received telephone calls. These are substantially different events. If the applicant’s family members had been critically injured, the Tribunal expects the applicant would have raised it when specifically asked. On the applicant’s evidence, the Tribunal is satisfied the applicant understood what had been written in his protection visa application and written statement. The Tribunal has considered the applicant’s explanation for the inconsistency but, considering the significant difference in his evidence, it does not accept the explanation as persuasive. The Tribunal is concerned by the internal inconsistencies in the applicant’s evidence and finds they cast doubt on his credibility as a whole.
Delay

The Tribunal is also concerned by the applicant’s delay in lodging a protection visa application. He last arrived in Australia [in] April 2018. He did not lodge a protection visa application until 28 March 2024. This protection visa application was made nearly 6 years after he entered Australia. The Tribunal put to the applicant that on his evidence he has been involved in politics since 2014 and has faced threats since he joined the AAP, and yet he did not make this protection visa application until March 2024. The applicant responded that he asked someone for help in applying for this visa. The Tribunal put to the applicant that it would have expected a person who fears being jailed or killed upon return to India to have taken steps sooner to raise these claims. The Tribunal put to the applicant that the delay undermined the credibility of his claims. The applicant said that he had no comment.
The Tribunal also put to the applicant that in the protection visa decision record dated 30 April 2024, it states that in May 2018 he had applied for a protection visa with different protection claims, and then withdrew this application in December 2018. The applicant said that in 2018 a friend said that he would apply for a visa for him; the applicant did not know what visa application had been made, nor was he aware of how the application was withdrawn.
The Tribunal accepts that in 2018 the applicant relied on a friend who said he would apply for a residency visa on the applicant’s behalf. The Tribunal accepts that in 2018 the applicant was unaware that a protection visa application had been made and withdrawn on his behalf. The Tribunal notes from the Department’s decision record that the claims made in 2018 were dissimilar to the claims made in 2024, however the Tribunal places no adverse weight on the fact that different claims had previously been submitted, as the Tribunal accepts that the applicant was not aware that a protection visa application had been made for him in 2018.
However, the Tribunal’s concerns regarding the applicant’s delay in lodging the current protection visa application are not assuaged by his responses during the hearing. The applicant did not explain why it took him nearly 6 years to make his current protection visa application. Nor did he explain why, if he feared for his safety in India, he did not take earlier steps to find out his options for remaining in Australia. The applicant said that he applied for a protection visa as he wanted to stay in Australia. He said that he needed more time to find another Australian visa option. The Tribunal put to the applicant that it seemed he had applied for protection not because of a genuine fear of persecution, but rather because he simply wants to stay in Australia. The applicant did not make any comment on this.
The Tribunal finds that the delay in making a protection visa application further adversely impacts the credibility of the applicant’s evidence.
Other concerns and conclusion
The Tribunal also notes from the applicant’s oral evidence that he first travelled to Australia in December 2017, but then went back to India in March 2018, and returned to Australia in April 2018. The applicant said that he travelled back to his village to visit his family. He then returned to Australia as his plan was to live here. The Tribunal is concerned by the applicant’s decision to return to and spend one month in the place where he claims to fear harm. The Tribunal finds this further impacts the credibility of the applicant’s evidence that he would be harmed or jailed if returned to his village.
The Tribunal has considered the news article about Arvind Kejriwal’s arrest but notes that it does not mention the applicant. The Tribunal does not find this article relevant to the applicant’s claims for protection and places no weight on it.
The Tribunal has also considered the applicant’s response during the hearing to the information put to him under s 424AA. When asked whether he wished to comment, the applicant responded that he wanted a visa to remain in Australia. When the adverse information was put to the applicant in writing under s 424A of the Act, the applicant did not respond within the time provided.
Considering the inconsistencies in the applicant’s evidence individually and as a whole, the vagueness and lack of detail regarding key elements of his claims, the delay in lodging the application, and the other concerns identified, the Tribunal finds the discrepancies and concerns are significant enough to support an adverse credibility finding in relation to the applicant’s evidence of his political opinion and involvement. The Tribunal finds there is no persuasive evidence to support the applicant’s claims for protection. As such, the Tribunal does not accept the applicant is a supporter of the AAP, he or his family have ever been threatened or harmed for their political profile, he has ever come to the adverse attention of the BJP or authorities, he has had or would have a profile in India as a supporter of the AAP or opponent of the BJP, or he would become an active participant in politics in India. The Tribunal finds the applicant does not face a real chance of serious harm in India for reason of his political opinion or for any other reason. The applicant did not claim harm for any other reason in India.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act. On the basis of the findings above, and for the same reasons as referred to above, the Tribunal is not satisfied that the applicant faces a real risk of significant harm for reasons of his political opinion. He did not claim harm for any other reason. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Member of the same family unit
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 criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sophie Manera
Member

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

[2024] AATA 3856

16 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction