AustLII Home | Databases | WorldLII | Search | Feedback

Administrative Appeals Tribunal of Australia
You are here:  AustLII >> Databases >> Administrative Appeals Tribunal of Australia >> 2019 >> [2019] AATA 5758

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Context | No Context | Help

1605228 (Refugee) [2019] AATA 5758 (29 April 2019)

Last Updated: 13 January 2020

1605228 (Refugee) [2019] AATA 5758 (29 April 2019)


DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1605228

COUNTRY OF REFERENCE: India

MEMBER: James Silva

DATE: 29 April 2019

PLACE OF DECISION: Sydney

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


Statement made on 29 April 2019 at 12:15pm

CATCHWORDS
REFUGEE – protection visa – India –– inter-faith pre-marital relationship – dispute over land ownership – harassment, threats to applicant and family – fear of honour killings – unsubstantiated claims – credibility issues – delay in seeking protection – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 437, 438, 499
Migration Regulations 1994 (Cth), Schedule 2,

CASES
MZAFZ v MIBP [2016] FCA 1081

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

  1. The applicant is a man [age] from India.
  2. He first arrived in Australia in March 2008, as the holder of a student visa. He applied for a protection (class XA) visa on 9 June 2015. On 18 March 2016, the delegate refused the application pursuant to s.65 of the Act.
  3. This is an application for review of that decision.
  4. The applicant attended a Tribunal hearing on 26 April 2019.
  5. For the reasons set out below, the Tribunal has concluded that the decision under review should be affirmed.

CRITERIA FOR A PROTECTION VISA

  1. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

CLAIMS AND EVIDENCE

Protection claims

  1. The applicant claims that he was in a relationship with an Indian Muslim woman for four years in Australia; that her family found out about the relationship; and that they have threatened and harassed his relatives in India, and threatened to kill the applicant. Even though the relationship has now ended, the applicant fears that the woman’s family will seek to injure or kill him in revenge for him have brought shame on them. The applicant also claims that an uncle and cousin are pressuring his family to hand over legal title to some land. They see the applicant as an obstacle, because he is educated and likely to frustrate their plan. He fears that these relatives will harm or kill him, to secure title to the land. The applicant claims that the Indian authorities will not protect him, as they do not intervene in ‘religious’ matters and, in any event, they are corrupt. He claims that he is at risk throughout India, as it is easy to identify non-locals and for word to get back to one’s home area.

Background

  1. The applicant is a [age] year old man from [Village 1], in Hoshiarpur district, Punjab, India. This is a medium-size village with [number] residents as of 2011.[1] He gives his languages as Punjabi, Hindi and English, in order of preference. He is a Sikh (religion and ethnicity).
  2. The applicant lived at one address, in his village, before coming to Australia. He completed Year 12 in [Hoshiarpur]. He gives no details of past employment in India, up to the time of his departure in March 2008.
  3. The applicant identifies his mother and a brother as his only close relatives in India. He told the Tribunal that he is in contact with them once or twice a week, and occasionally sends them money. His brother runs the family farm, which has wheat, corn, vegetables and some livestock (cattle).
  4. The applicant’s father died when he was young. The family moved in with the applicant’s grandfather, who died while he was in Australia. The applicant has a sister in [Country 1]; many years ago, an aunt living in [Country 1] adopted her and brought her up there.
  5. The applicant holds an Indian passport issued in [2006], valid for ten years. He departed India [in] March 2008, as the holder of a student visa. At the Department interview in March 2016 that he had applied for a new Indian passport. At hearing, he said that the Indian authorities had declined to issue him with a passport in 2016, as he held only a bridging visa. He said that he submitted another passport application a few weeks prior to the hearing, and had not heard anything further.[2]
  6. Information about the applicant’s migration and travel history is contained in the delegate’s decision record[3] and was discussed at hearing. He entered Australia [in] March 2008. He had a student visa that was valid until 18 April 2008; he then obtained another student visa, which expired on 11 September 2010. He told the Tribunal that he first completed an English language course; then a [Field 1] course; and then a [Field 2] course. He later discovered that his visa had expired. He felt depressed and panicked. He stayed on without a visa, and eventually lodged his protection visa application on 9 June 2016.
  7. The applicant wrote on his application form that he was living in [Location 1] with his girlfriend, [Ms A]. He gave her email address as [email address deleted]. He told the Tribunal that he is currently sharing a [unit] with another Indian male. He claimed that his girlfriend lived there until a few months ago. The applicant worked casually, cash-in-hand, while he was without a valid visa. He is currently working in the construction sector.

Evidence

  1. The evidence before the Tribunal includes the following relevant material:
  2. The file includes documents relating to the applicant’s application for a bridging visa with work rights, and accompanying statements about his financial situation. These do not contain information relevant to his protection claims.
  3. The applicant appeared before the Tribunal at a hearing held on 26 April 2019. The hearing was conducted with the assistance of an interpreter in the Punjabi language. The applicant gave some evidence in English, which he speaks well, but most of the exchange was done through the interpreter.
  4. The applicant is represented in this matter by his registered migration [agent]. [The agent] did not attend the Tribunal hearing.
  5. The Department issued a certificate under s.438(1)(a) certifying that the disclosure of certain information would be contrary to the public interest ‘because [the folios] contain information relating to an internal working document and business affairs’. This concerns folios 47 and 86 on the Department file [number]. These are: (a) an internal identification checklist for protection visa applicants; and (b) a previously completed disclosure decision checklist, in which the delegate had assessed there to be no folios on the file that fell within the scope of s.437 or s.438.
  6. The Tribunal advised the applicant of the existence of the certificate. It explained its view that the certificate was not valid, as it does not properly identify a basis for public interest immunity.[4] It also noted that the material in the folios is not relevant to the review. The applicant noted this without comment.

Receiving country

  1. The applicant claims that he is a national of India. A copy of his now-expired Indian passport is on file. He speaks Punjabi, a regional language in India, and he was familiar with his local area and India. The Tribunal is satisfied, and finds, that he is a national of India. India is therefore the receiving country for the purpose of assessing his claims for protection.

CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

Credibility of the applicant’s claims and evidence

  1. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.
  2. In the present case, the Tribunal has significant concerns about the credibility of the applicant’s claims and evidence. These arise in part from his vague and, for the main part, unsubstantiated claims. The Tribunal formed the impression that the applicant presented claims based on a land dispute and an inter-faith, premarital relationship because he understood that these could form the basis for protection in Australia – and not because he had any genuine fears based on any such circumstances. As a consequence, even though he may have drawn on some personal experiences or observations, he struggled to provide meaningful details and corroboration for his claims.
  3. The applicant’s significant delay in seeking protection in Australia, following the expiry of his last student visa in September 2010 is also of concern. The applicant said that he did not know about protection visas until much later; he had always linked protection visas with ‘boat people’. However, in the Tribunal’s view, the applicant speaks English, and he had ample opportunity to signal to others (such as friends or his migration agent) in the past, if he was fearful of returning to India. The Tribunal found the applicant’s explanation somewhat glib. In its view, his failure to enquire about or seek protection earlier casts doubt on his need for protection, and the credibility of these claims.
  4. The Tribunal’s detailed assessment follows.

Relationship with a Muslim girl

  1. Original claims: In his written statement, the applicant claimed that he was in a relationship in Australia with a Muslim girl, [Ms A]. ‘Some people’ object to the relationship; they are trying to make it into a religious issue; and they already came to his home looking for him, threatening his mother and his brother, as well as the applicant himself. They demanded the applicant’s address. His mother was afraid, and publicly disowned the applicant, for her and the brother’s safety. The applicant encouraged his mother to lodge a First Information Report (FIR), but she was not prepared to take the risk (implicitly, of antagonising these people).
  2. The applicant claimed to fear that these people would harm or even kill him. He noted that honour killings are prevalent in Punjab; and that the authorities do not intervene in such matters for fear of upsetting a group of voters (ie. Muslims).
  3. General country information indicates that violence arising from inter-faith or inter-caste relationships occurs in India, despite the fact that India is officially a secular and multi-ethnic country, and such marriages are legal.
  1. Evidence to the Department: As set out in the delegate’s decision record, the applicant declined to provide details about [Ms A]’s identity or circumstances, merely stating that he is unable to give this information. Although the applicant did not articulate this, he gave the impression that he was concerned not to involve [Ms A] in his case, perhaps because of her migration status and/or possible Department enforcement action against her.
  2. The Tribunal has before it some snippets of information from the Department interview and the supporting documents that the applicant provided about [Ms A] and his relationship:
  3. The applicant’s mother wrote in her affidavit merely that the applicant is in a relationship with a Muslim girl named [Ms A]. The applicant’s friend [Mr B], from [Amritsar], wrote in January 2015 that he has known the applicant for some seven years, and that he and [Ms A] had been in a relationship ‘for more than 7 years’.
  4. Evidence to the Tribunal. The applicant gave somewhat more information to the Tribunal, but remained guarded.
  5. The applicant said that [Ms A]’s family learned about the relationship after he encouraged her to tell them. He said that she loved her father. Although it was difficult to follow his reasoning, he appeared to indicate that he (the applicant) wanted her to be honest with her parents, and seek their blessing for the relationship and an eventual marriage.
  6. The Tribunal asked the applicant about the affidavit from his friend [Mr B]. Writing in January 2015, [Mr B] gave his address as [Amritsar], and stated that the applicant and [Ms A] had been in a relationship ‘for more than 7 years’ (hence, since about 2008). The applicant said that he and [Mr B] have been friends on [social media] for many years. He was not sure where he lived, merely observing that he had lived in Jalandhar and moved to different places. As for the difference in his and [Mr B]’s account of when the relationship started, the applicant said that he (the applicant) was referring to their period of co-habitation. He implied that [Mr B] was referring to the duration of his friendship with [Ms A].
  7. The Tribunal places minimal weight on the affidavits from the applicant’s mother and from [Mr B], as evidence of the relationship with [Ms A]. First, the mother’s affidavit merely states that the applicant is (was) in a relationship with [Ms A], and is evidently prepared to assist with this application. Second, it is difficult to place weight on [Mr B]’s affidavit, given the discrepancy between his statement and the applicant’s evidence about the duration of the relationship. The Tribunal is not satisfied that cultural differences as to what constitutes a ‘relationship’ (that is, friendship, or actually living together) adequately explain this inconsistency. The applicant’s uncertainty about [Mr B]’s place of residence at the time when the affidavit was written adds to the Tribunal’s concerns about its provenance and reliability.
  8. The applicant told the Tribunal that, as he and [Ms A] had separated about two months prior to the hearing, she was not available to give evidence. He commented that she had gone back to visit her family in India some months earlier. He believes that they exerted pressure on her to abandon the relationship with him, and (quite possibly) to marry a Muslim man. On her return to [Australia], she was a changed person, and indicated that their relationship was over. The applicant said that he thinks she is now living in [Location 2], but he does not know her relationship status – he thought that she might already have married in India, or that her parents have arranged a marriage partner from ‘their own caste’ (ie. a Muslim).
  9. The Tribunal asked the applicant about the actions of [Ms A]’s family in the past. He explained that, after learning about the couple’s relationship, her father sent someone from Patiala to his village, ostensibly to discuss a marriage. On arriving at the applicant’s family home, these people expressed their displeasure at the relationship, and demanded that the applicant leave [Ms A]. The applicant confirmed that there had been just one visit to his family home, and that there had been no further action.
  10. The applicant presented an affidavit from his mother, in English, in which she claims that the relationship has brought shame on the family and the community, and that she has disowned him. A copy of a public notice dated [2015] in Chandigarh purports to give this legal effect. At hearing, the applicant said that his mother published this announcement in order to avert further problems from [Ms A]’s relatives. As noted above, this public notice was prompted by a single visit from [Ms A]’s relatives, and the applicant’s mother took no other precautions. The Tribunal does not find the ‘public notice’ to be a credible response to such a visit, and does not accept that its purpose was to dissuade a Muslim family living [number] km away from the applicant’s village from searching for the applicant. It places no weight on the public notice as evidence that [Ms A]’s family (or anyone, including the applicant’s uncle and cousin) are looking for him.
  11. Country information indicates that honour killings in Punjab are mostly directed against women and girls, although they also include men.[7] In this context, the Tribunal noted [Ms A]’s recent return to India to visit her family, without any apparent conflict or honour-related violence. The applicant replied that this gave him little comfort. He said that [Ms A] had gone to India hoping to win her family over, to accept the relationship. But instead, she had bowed to their wishes, by ending the relationship and (probably) agreeing to marry or be together with another man.
  12. The Tribunal wondered whether, given that the relationship was now over, and [Ms A] had presumably made her peace with her family (on terms that the applicant could only speculate about), they might have no further motivation to pursue him if he returned to India. The applicant doubted this. He believed that they reconciled with [Ms A] only because she submitted to their wishes. But they will still pursue him, for having lived with her for four years and brought shame on their family.
  13. The Tribunal noted the applicant’s references to opposition from his own family to the relationship. He said that he does not fear that his own family – including his uncle or cousin – will target him because of the relationship with [Ms A]. They did not approve of the relationship, but he was confident that he could win them over.
  14. The Tribunal has significant concerns about the claimed relationship and its consequences. The available material, considered as a whole, indicates that the applicant may have drawn on a friendship with a Muslim woman, such as the woman who appeared in the social photograph with the applicant. However, the Tribunal does not accept that the applicant and [Ms A] lived together for four years in Australia, as a couple; or that they were perceived by others (including the applicant’s friend [Mr B]) as being in a ‘relationship’ even in India. It does not accept that [Ms A]’s family discovered the relationship – either as a result of her informing them, or of third parties getting work back to them. It does not accept that [Ms A]’s relatives went to the applicant’s family home; that the relatives stated their disapproval; or that they intimidated or threatened family members (for instance, as a means of getting the applicant’s address in Australia). The Tribunal does not accept that the applicant’s mother issued a public notice disinheriting or disowning him, as a means of reducing the risk to her and the applicant’s brother; or that she refrained from reporting the matter to the police, fearing that it could make matters worse.
  15. The Tribunal does not accept that the applicant genuinely fears that [Ms A]’s family, or other Muslims in India, will harm or kill him as a result of any relationship with [Ms A]; or even any friendship or contacts he may have had with such a person.

Land dispute

  1. Original claims: The applicant claims that there is a dispute over farmland adjacent to his family home. Extended family members have been eyeing off the land, particularly after the grandfather’s death (just before 2010). He also appeared to claim that his relatives will use the ‘religious issues’ (the applicant’s relationship with a Muslim girl) to increase the pressure on his family over the land, and for him to abandon his title to it. This leads him to fear for his life.
  2. Subsequent evidence: The applicant told the Tribunal that the disputed land involves eight fields (he did not use a precise measurement) adjacent to the family home, in the village. An uncle and cousin[8] have adjacent land. The applicant’s grandfather transferred title to the disputed land to the applicant and his brother, jointly, before he died in (or just before) 2010.
  3. The applicant’s brother currently farms part of the disputed land, hiring labour as needed to tend to the crops. Another part of the land is leased out. When the applicant came to Australia, his mother used to lease the land to the uncle and cousin, on favourable terms. After about six months, she changed the lease and it is now tenanted by others.
  4. The applicant said at hearing that the issue is his uncle’s and cousin’s aim to force the applicant and his brother to transfer legal title to them. So far, they have exerted pressure and made threats, to achieve this outcome, to no avail.
  5. As noted in the Department of Foreign Affairs and Trade’s most recent country information report, disputes over land ownership (as well as marriage-related disputes) are a well-established cause of community tension in India[9] (and the Tribunal adds, family conflict).
  6. The Tribunal considers the applicant’s account highly problematic. First, his description of his brother’s continued operation of the farm and his mother having cut short the uncle’s lease on part of the land, undermines his claim that the uncle is ruthless or powerful. Second, as discussed, there is little evidence of the applicant having taken measures to protect his legal title, or even turned his mind to that. Third, it does not make much sense that the uncle adheres to legal formalities regarding ownership, and has not acted to seize possession of the land from the applicant’s mother and brother; and yet, on the other hand, he would be prepared to harm or even kill the applicant to secure legal title.
  7. These concerns, taken together with broader doubts about the applicant’s credibility, lead the Tribunal to disbelieve that there is an ongoing dispute with his uncle (and cousin) about legal ownership of the land; and that the applicant fears that his relatives could harm or kill him in their quest to secure title to the land.

ASSESSMENT: REFUGEE CRITERION

  1. The Tribunal now assesses whether, in light of the above findings of fact, and having regard also to any other relevant factors – in particular, country information and the applicant’s future conduct – there is a real chance of him experiencing serious harm amounting to persecution for one or more of the reasons set out in s.5J(1), if he returns to India.
  2. The applicant claims to fear that [Ms A]’s relatives from Patiala will continue pursuing him, due to their objection to his (past) relationship and co-habitation with [Ms A]. He claims that they will harm or kill him, wherever they find him. He also claims to fear that his uncle and cousin could harm or kill him, if he returns to India, so that they can legally take over the disputed land.
  3. Asked about his future conduct in India, the applicant replied that he can only imagine returning to farming and, by implication, to his home village. The Tribunal explored whether his language and work experience in Australia might open other prospects for him, but the applicant replied that jobs such as construction work (which he does in Australia) are poorly paid. The Tribunal appreciates that, after more than a decade in Australia, the applicant is reluctant to contemplate or plan for his return to India. It finds on the available evidence that he will likely return to his home area in the short-term, but that he will likely seek employment or business opportunities in other parts of Punjab (Hoshiarpur) or India.
  4. The Tribunal has already rejected the applicant’s claims that he was in a relationship with a Muslim woman in Australia; that her family harassed and threatened his family; and that they threatened to harm or kill the applicant for having brought dishonour to their family. It follows that the Tribunal also does not accept that the applicant faces a real chance of serious harm from [Ms A]’s family, or other Muslims, for any reason arising out of such a relationship, or their perception of it. Similarly, the Tribunal does not accept that the applicant faces a real chance of his uncle, cousin or other relatives inflicting serious harm on him due to a land dispute, namely his refusal to grant them legal title to land inherited from his grandfather.
  5. As the Tribunal finds that there is no real chance of the applicant facing serious harm amounting to persecution arising from either the relationship and/or the land dispute, in Hoshiarpur, it is unnecessary for it to determine whether the feared harm is for one or more of the reasons set out in s.5J(1)(a); or whether there is a real chance of persecuting relating to all of India: s.5J(1)(c).
  6. The applicant expressed some apprehension that he would have to return to farming in India, and that his other employment prospects were slim and/or poorly paid. These concerns are understandable given his lengthy period outside India. However, they relate to the general economy and living standards. These do not amount to persecution as prescribed in s.5J(4), as the feared harm does not involve serious harm to the person, or ‘systematic and discriminatory conduct’, or arise from one or more of the grounds in s.5J(1).
  7. The applicant also commented that Muslims undertake honour killings and similar actions, and can ‘do anything’, implying that they can target Hindus or their perceived enemies. This was in the context of describing his fears from [Ms A]’s family, and the Tribunal does not understand it to mean that he fears harm from Muslims generally.
  8. The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. It finds he does not face a real chance of serious harm amounting to persecution in his home area, Hoshiarpur, or India as a whole, for any reason. It is therefore not satisfied that the applicant has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1), now or in the reasonably foreseeable future, if he returns to India.
  9. The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

ASSESSMENT: COMPLEMENTARY PROTECTION

  1. The Tribunal has considered whether on the evidence before it, 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 being removed from Australia to India.
  2. The Tribunal takes into account the above findings of fact; its view of the applicant’s future conduct; and country information about general conditions in India. It finds that there is no real risk of him being subject to significant harm arising his family’s land ownership, any past friendship or contacts with a Muslim woman in Australia, or from any related circumstances.
  3. As noted above, the Tribunal accepts that the applicant is concerned about his prospects on return to Hoshiarpur, whether in farming or in looking for other work, particularly when compared with Australia. The Tribunal is not satisfied that such circumstances give rise to a real risk of significant harm if he returns to Hoshiarpur, or India as a whole. Also, these issues apply to a greater or lesser degree throughout India, and affect the population generally. Given the Tribunal’s conclusion that the applicant does not face a real risk of significant harm, it is unnecessary to consider whether s.36(2B)(c) applies such that there would be taken no to be a real risk to him personally.
  4. The Tribunal concludes that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. In other words, the Tribunal finds no other grounds that suggest he will be subject to significant harm, for any reason, if he returns to India.
  5. Accordingly the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm: s.36(2)(aa).

CONCLUSION

  1. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
  2. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
  3. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

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



James Silva
Member

ATTACHMENT A – RELEVANT LAW

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted below.

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): see the extracts immediately below.

Mandatory considerations

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.

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.
...

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 them 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

...

(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.

...


[1] [source deleted]
[2] The applicant told the Tribunal that the Indian authorities declined to issue him with a new passport because he was on a ‘protection visa’. It emerged during further discussion that they had mentioned his bridging visa only. It appears that they declined to issue him a new Indian passport while he did not hold a substantive visa (ie. perhaps they would only issue him with a travel document). In light of these clarifications, the Tribunal is not satisfied that the Indian authorities know and are concerned that the applicant has applied for protection; or that they have treated his passport application any differently because they know or suspect that he has applied for protection.
[3] The applicant attached a copy of this to his application for review.
[4] The Tribunal notes, for instance, the Federal Court’s view in MZAFZ v MIBP, [2016] FCA 1081 (Beach J, 7 September 2016), that similar wording, ‘internal working documents’ could not form by itself form the basis for a claim of public interest immunity.
[5] DFAT: Country Information Report – India, 17 October 2018
[6] ‘Honour Killings in India: A Study of the Punjab State’, Satnam Singh Deol, International Research Journal of Social Sciences, Vol 3 (6), June 2014, CISEFCB23F7458, p.7, Abstract.
[7] Rout, Chintamani, Honour Killing: Descend and Dimensions, IJPSLIR, 2(1), 18, (2012)
[8] The applicant explained that this was the ‘uncle’ was the son of his grandfather’s brother; and the cousin was his son. There is a second cousin living in [another country], who is not involved in the dispute.
[9] DFAT: Country Information Report – India, paragraph 2.36, 17 October 2018

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/cth/AATA/2019/5758.html