1413017 (Refugee) - [2015] AATA 3168

1413017 (Refugee) [2015] AATA 3168 (14 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1413017
COUNTRY OF REFERENCE:                  India
MEMBER:Chris Thwaites
DATE:14 July 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 14 July 2015 at 10:34am
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 Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of India, applied for the visa [in] December 2013 and the delegate refused to grant the visa [in] June 2014.
On 25 July 2014 the applicant applied to the Tribunal for review of that decision.
CONSIDERATON OF CLAIMS AND EVIDENCE
The Tribunal has before it the Department’s file relating to the applicant’s protection visa application and the Tribunal’s file relating to the review application. The Tribunal has also had regard to the copy of the delegate’s decision record provided to the Tribunal by the applicant.
The applicant’s written reasons for claiming protection are contained in his visa application form. In that form the applicant claims he left India, as he believes that his life was in danger and under threat from the family of his girlfriend. In summary the applicant states he is from India and is Indian by ethnicity and belongs to a backward caste of the Hindu religion, named “Dalits”, who are ostracised by all other castes and treated as untouchable. Dalits are treated as low-level human beings, and are not allowed to enter any temples. Dalits are not allowed to drink from the same wells, attend the same temples with people from other castes, or drink from the same cups in tea stalls, and wear shoes in the presence of an upper caste.
The applicant claims his father was discriminated against severely in employment opportunities for being from the Dalits cast of the Hindu religion. The applicant had a placement to study a bachelor degree at [a] College in June 2004. At the beginning everything was going good and the applicant was making some friends from his community as well as other communities from high caste people. The applicant met a girl named [Ms A] in about January 2006, who is from a higher caste named “[name deleted]”. After about four months their relationship developed into a love affair. The applicant loved her and she loved him. As time passed they began to think of marrying each other. The problem was that they were not from the same caste, and it was difficult to make her family accept their relationship and marriage, as she was from a higher caste and her family was wealthy and powerful. Her father was in politics and had a powerful role in the ruling party. Her family found out about the relationship in April 2007. As soon as this happened, they threatened the applicant through some hired people to stop his relationship with her at once.
The applicant claims that about mid-April, while going home from college, he was stopped by six men at the college bus stop. They suddenly started punching and kicking him, and used wooden sticks to beat him. As they were beating him they were also threatening him by saying things like “you idiot stay away from[Ms A], otherwise we will kill you”. The applicant was bleeding from his head and forehead. He collapsed on the ground and they continued to kick him while he was on the ground. The applicant saw a traditional doctor after this incident.
The applicant states that [Ms A] and he were still meeting each other secretly, as they were concerned about the applicant’s safety. People arranged by[Ms A]’s family were bringing her to school and taking her from school at the end of the day, so they had no chance to meet outside the school. The same people continuously threatened the applicant to leave the city altogether. The applicant and his girlfriend decided to run away together in November 2007 and establish their lives away from her family. The same people confronted the applicant next to the college at the beginning of November 2007, and started swearing at him and beating him. They were threatened him by saying things like “stay away from this girl, otherwise we will kill you”. They beat the applicant so badly that he had bruises all over his body and had to see a traditional doctor.
The applicant states [Ms A] and he set the date [in] November 2007 for escaping to Hyderbad. The applicant bought two one way tickets and they met at the intercity terminal [on] the morning of [date] November at 5 AM. Their bus was at 5:45am. At about 5:30 am they were suddenly surrounded by 10 to 12 people, who pulled [Ms A] away from the applicant, and started to beat the applicant severely in front of her. The applicant could hear her crying. They beat the applicant so bad that there was blood all over his clothes. Then they run away. Some people nearby put the applicant in their car and took him to hospital where he received treatment for his injuries. He was kept in hospital for 12 days. After this the applicant believes his life was in real danger and he had to stop his education. [Ms A] had suicided after 15 days, and her family held him responsible for her death. As a result they continued their threats to kill the applicant. As the applicant found out about this he left home and started living in Hyderabad. He was living for short periods of time here and there, and did not stay long in one place for fear of being found.
The applicant states he is fearful that he would be killed by the powerful family of [Ms A] (if he went back to his country), because they hold him responsible for the death of their daughter. The applicant states the family of [Ms A] is very strong and influential, and the authorities would not protect him at all.
According the delegate’s decision record the applicant was interviewed [in] June 2014. The delegate did not accept the applicant’s protections claims as true, and found the applicant was not a credible witness, and that he delayed in seeking protection in Australia and that his circumstances in India were not as claimed. The delegate was not satisfied that the applicant had a real chance of being persecuted for a Refugee Convention reason, and the delegate was not satisfied the applicant’s fear was well founded. The delegate was also not satisfied the applicant has a real chance of being subject to significant harm should he be returned to India and was not satisfied there are 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 be subject to significant harm.
The applicant appeared before the Tribunal on 1 July 2015 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.
During the hearing the applicant told the Tribunal he feared returning to India because[Ms A]’s family blame him for her suicide and will harm him. He also told the Tribunal he fears the discrimination against his caste in India. The applicant and his representative provided copies of eight internet articles relating to honour killings of Dalits because of their relationships with people from other castes. The articles are dated between November 2012 to June 2015. During the hearing the applicant told the Tribunal he could speak, read and write English, Tulegu and Hindi. He told the Tribunal his agent assisted him to complete his visa application forms. He told the Tribunal he told the information to his agent who then drafted the form, including the written reasons for claiming protection, which he then signed. He told the Tribunal he had read the document and understood its contents prior to signing it and he told the Tribunal he did not wish to add or change anything to the document.
FINDINGS AND REASONS
Nationality
On the basis of the applicant’s Indian passport, which was presented at the hearing, the Tribunal finds that the applicant is a citizen of India. There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than India. Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act. As the Tribunal has found that the applicant is a national of India, the Tribunal also finds that India is the applicant’s “receiving country” for the purposes of s.36(2)(aa).
Credibility
During the hearing the Tribunal discussed with the applicant his background, education, family composition and employment history, as well as the reasons he left India and his fears about returning to India. While the applicant provided consistent evidence in relation to his education and family composition, the Tribunal raised a number of concerns in relation to inconsistencies between the applicant’s oral evidence and his written claims, as well as inconsistencies between his oral evidence and the information he provided to the delegate in his interview, as recorded in the delegate’s decision record. While the Tribunal would not, in isolation, draw adverse credibility conclusions from some of these inconsistencies, given the number of them, and the other credibility concerns discussed below, the Tribunal is not satisfied the applicant has told the truth in relation to aspects of his claims for protection. The Tribunal finds the applicant is not a witness of truth and the Tribunal is not satisfied he has told the truth in relation to critical aspects of his claims. The reasons for this finding are discussed below.
First, during the hearing the applicant told the Tribunal[Ms A]’s family found out about his relationship with her in 2007 and he was beaten three times and threatened to keep away from her. He told the Tribunal the first beating occurred in April 2007. He told the Tribunal he was going to school, and they were already there to find him, and it happened next to the school, that six or seven people hired by[Ms A]’s family beat him and threatened him and told him to keep away from this girl. The Tribunal raised its concerns that the applicant’s oral evidence was different from his written statement, which indicates the first time he was beaten was when he was going home from college, and he was stopped by six men at the college bus stop. In response the applicant told the Tribunal when he told the Tribunal it happened next to the school, he meant a place not too far from the school, where he took the bus to college, one or two kilometres away. The Tribunal does not accept the applicant’s response explains the difference between his oral evidence and his written claims. The Tribunal does not accept a bus stop one or two kilometres away from a school can reasonably be described as being next to the school. While in isolation, the Tribunal would not give much adverse weight to this difference between the applicant’s oral evidence and his written claims, given the other differences and credibility concerns discussed below, the Tribunal considers this difference reflects poorly on the applicant’s credibility and the reliability of his evidence.
Second, during the hearing the applicant told the Tribunal that the second beating occurred in November 2007 at the bus stop near his college. The Tribunal raised its concerns the applicant’s oral evidence was different from his written claims which states that some people confronted him next to the college in the beginning of November 2007 and started swearing and beating him. In response the applicant told the Tribunal the bus stop was not too far from the college and therefore he used the word next.
The Tribunal does not accept the applicant’s response explains the difference between his oral evidence and his written claims. As noted above the Tribunal does not accept a bus stop one or two kilometres away from a school can reasonably be described as being next to the school. The Tribunal notes that in his written claims the applicant uses “bus stop” for the location where he was beaten once, and “next to the college” for the location for a different beating. The Tribunal does not accept these terms are used to identify the same location.
The Tribunal has considered the effect stress of giving evidence at a hearing can have on a person’s ability to recollect details. While in isolation, the Tribunal would not give much adverse weight to this difference between the applicant’s oral evidence and his written claims, given the other differences and credibility concerns discussed below, the Tribunal considers this difference reflects poorly on the applicant’s credibility and the reliability of his evidence.
Third, during the hearing the applicant told the Tribunal that when he was beaten a third time, he was beaten by five or six people. The Tribunal raised its concern that the applicant’s oral evidence was different from his written claims, which states he was surrounded by 10-12 people who pulled [Ms A] away and started to beat the applicant severely. In response the applicant told the Tribunal he was a little confused and stressed. On further questioning the applicant told the Tribunal he did not suffer from any medical conditions and that he was not taking any medication. The applicant told the Tribunal that he was beaten by 10 to 12 people at this time. The Tribunal is not persuaded by the applicant’s response. The Tribunal has taken into account the effect stress of giving evidence at a hearing has on a person’s ability to recall detail consistently, and that the applicant was a little confused. In isolation the Tribunal would not give this difference between the applicant’s oral evidence and his written claims much weight. Nevertheless the Tribunal notes the applicant has given different details in relation to where the beatings occurred, and the number of people involved, in his oral evidence provided at the hearing and the written claims contained in his visa application form which he signed in December 2013. Given the number of differences and the other credibility concerns discussed below, the Tribunal considers this difference reflects poorly on the applicant’s credibility and the reliability of his evidence.
Fourth, during the hearing the applicant told the Tribunal that after the third beating he was taken to the doctor’s place for one or two weeks. When asked if the applicant was in a hospital, the applicant told the Tribunal it was not a hospital, it was like a home where the village doctor treated people. The Tribunal raised its concern that the applicant’s oral evidence was different from his written claims which states that he was taken to hospital where he received treatment for his injuries and that he was kept in hospital 12 days. In response the applicant told the Tribunal the doctor’s home was the hospital. The Tribunal is concerned the applicant initially told the Tribunal he was not in a hospital, and then changed his oral evidence in response to an issue raised by the Tribunal. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of his evidence.
Fifth, during the hearing the applicant told the Tribunal [Ms A] committed suicide in early 2008. The Tribunal raised its concern that the applicant’s oral evidence was different to his written claims, which indicates [Ms A] had suicided about 15 days after the incident [in] November 2007. In response the applicant told the Tribunal he was a bit stressed and that it had happened at the end of the year or beginning of the next year, and that they were nearly the same. While the Tribunal has taken into account the effect stress of giving evidence at a hearing has, the Tribunal is concerned the applicant was unable to provide consistent evidence in relation to the year [Ms A] committed suicide, given the applicant’s evidence was that they were in a relationship and had been preparing to run away and establish their lives together. While the Tribunal notes the claim is that the suicide happened over seven years ago, the Tribunal also notes the difference in the applicant’s evidence is between his oral evidence at the hearing and the written claims he signed in December 2013. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of his evidence.
Sixth, during the hearing the Tribunal also raised its concern that the applicant’s oral and written claims where different from the information the applicant provided during his interview with the delegate [in] June 2014, and recorded in the delegate’s decision record. The decision record indicates the applicant told the delegate he was attacked in April 2006, then stalked every two or three months, and received death threats on six or seven occasions between April 2006 and November 2007. The applicant told the delegate he was attacked again in late 2006 and that [Ms A] committed suicide during the first week of December 2007. In response the applicant told the Tribunal he was a bit confused with the years, and also that [Ms A] committed suicide at the end of the year or the beginning of the other year. He also told the Tribunal he was a bit confused and that he did not go through the statement. The Tribunal notes the applicant had earlier told the Tribunal he had read the document and understood its contents prior to signing it. The Tribunal is not persuaded by the applicant’s response or that his confusion explains the difference between his oral evidence and written statement and the information he provided during the interview with the delegate. While the Tribunal does not expect the applicant to recall exact dates of events that occurred a number of years ago, the Tribunal is concerned he has been unable to consistently recall in what month or year a number of significant events occurred. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of his evidence, and casts significant doubt on whether these events actually occurred.
Seventh, during the hearing the applicant told the Tribunal he went to Hyderabad as soon as he recovered from the last beating ([November] 2007) and that he did not return to his home village before he left India [in] May 2009. The Tribunal raised its concern that the applicant had delayed in leaving India for over a year and a half. The Tribunal noted the decision record indicated the applicant did not apply for his visa until [April] 2009. In response the applicant told the Tribunal he changed hostels regularly during this time to avoid giving anyone information about where he was. He was also trying to learn the process about how to get out of the country as he did not know this information, so he was trying to gather this information. The Tribunal notes the applicant had told the Tribunal he had completed his secondary school education in India and had studied three and a half years of a Bachelor Degree, and speaks, reads and writes English and two other languages. The Tribunal noted county information indicates there are travel agents and visa agents in India and the Tribunal again raised its concerns about the claim that it took the applicant one and a half years to gather the information. In response the applicant told the Tribunal there was a finance issue as well, as his father was unable to give him the money at the time and had to ask some people who had the money, which took some time.

The Tribunal also noted the decision record indicates the applicant’s visa for Australia was granted [in] April 2009, yet the applicant did not leave India until [May] 2009. The applicant told the Tribunal he had to prepare to go out of the country and meet his friends and family and tell them he was leaving.
The Tribunal does not accept it took the applicant one and a half years to find information about how to leave India. While the Tribunal accepts it may take some time to raise finances for travel and a visa, the Tribunal finds, on the evidence before it, that the applicant left India in an orderly manner, taking time to say goodbye to friends and relatives. The Tribunal considers the applicant’s delay and manner in which he left India does not support the conclusion that he was in fear for his safety at that time. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of his claims
Eighth, during the hearing the applicant told the Tribunal he arrived in Australia [in] May 2009. The Tribunal raised its concern that the applicant did not lodge his protection visa application until [December] 2013. The Tribunal notes the delegate’s decision record indicates that after the applicant arrived in Australia he applied for a further student visa and pursued an application for review of the decision to refuse that visa to the Migration Review Tribunal prior to making his protection visa application. In response the applicant told the Tribunal he did not know about protection visas at that time and it was only after he spoke to a friend who referred him to a migration agent who then gave him information about protection visas that he lodged his protection visa application. On further questioning the applicant told the Tribunal he did have an agent working for him for his previous student visa application and his application for review to the Migration Review Tribunal, although it was not the same agent who later told him about protection visas.
The Tribunal is not persuaded by the applicant’s response. The Tribunal notes the applicant’s oral evidence that he completed his secondary school education and three and a half years of a Bachelor Degree in India and then completed a [Diploma] in Australia, and that he speaks, reads and writes English and two other languages. The Tribunal considers the applicant is well educated. The Tribunal considers the applicant would have been able to source information about protection visas in Australia and lodge a visa application soon after he arrived in Australia if he chose to. The Tribunal considers the applicant’s delay in applying for a protection visa, a delay of over four years, reflects poorly on his credibility and the reliability of his claims that he left India in fear for his safety and that he continues to fear returning to India.
Ninth, during the hearing the applicant told the Tribunal his father told him that[Ms A]’s family had visited his family home after her suicide and after he had left for Hyderabad, asking about the applicant’s whereabouts and threatening them. He told the Tribunal they did this five or six times in 2008 and his father has told him they continue to keep watching his family home.
During the hearing the applicant also told the Tribunal that in April 2013 he returned to India for nearly two months. The Tribunal raised its concerns that the applicant had returned to India in April 2013 and stayed for nearly two months, actions which appear inconsistent with his claims in his protection visa application lodged in December 2013, to fear returning to India. The applicant told the Tribunal he returned to India because his grandmother was ill and wanted to see him. He told the Tribunal he decided to risk himself, and risk his life, to see his ill grandmother. He told the Tribunal while in India he stayed at his grandmother’s home which was thirty kilometres from his family home, and that he did not experience any problems. He told the Tribunal he tried not to go anywhere during that time. The applicant told the Tribunal his grandmother passed away two month prior to the hearing.
While the Tribunal accepts the applicant’s grandmother may have been ill in 2013 and has since passed away, and it extends its condolences to the applicant at the loss of his grandmother, the Tribunal raised its concerns about the credibility of the claim that the applicant’s life was at risk in India, yet he voluntarily returned to India for two months in 2013. In response the applicant told the Tribunal it was not too long, and that he had not seen her for so long and decided to spend some time, his last days, with her. While the Tribunal accepts the applicant may have decided to risk his life and safety to visit his ill grandmother, the Tribunal notes the applicant stayed in India for nearly two months during this visit. The Tribunal considers this significantly undermines the credibility of his claims that his life was, and is, at risk in India. The Tribunal considers the applicant’s visit, for nearly two months, to India in 2013 reflects poorly on his credibility and the credibility of his claims.
Does the applicant have a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention?
While the Tribunal finds, for the reasons set out above, that the applicant is not a witness of truth, the Tribunal accepts the applicant has provided some consistent information and oral evidence in relation to his family composition and educational history in India. On the basis of that consistent evidence the Tribunal accepts the applicant completed his secondary school education and three and a half years of a Bachelor degree in India. For the reasons set out above, the Tribunal is not satisfied the applicant has told the truth in relation to critical aspects of his claims.
Given the inconsistencies and concerns discussed above, the Tribunal does not accept the applicant was in a relationship with a girl from a different caste while at college in India. The Tribunal does not accept the applicant was beaten or threatened by people hired by her family to stop the relationship. The Tribunal does not accept the applicant was beaten three times or threatened and stalked in 2006 or 2007, or that he sought treatment for injuries or spent 12 days or one or two weeks in hospital or the doctors home to recover. The Tribunal does not accept a [Ms A] committed suicide, or that the applicant is held responsible for her death, or that the applicant stopped his studies and moved to Hyderabad to avoid threats and harm from her family. The Tribunal does not accept the applicant’s family was visited and questioned and threaten five or six time in 2008 by[Ms A]’s family, and the Tribunal does not accept the applicant’s family home continues to be watched. The Tribunal does not accept the applicant was, or is, of any or adverse interest to anyone or any family due to a previous relationship.
The Tribunal does not accept the applicant was in hiding or changed his accommodation regularly to avoid being found prior to leaving India. The Tribunal does not accept the applicant feared for his safety at the time he left India. The Tribunal does not accept the applicant risked his life and safety when he returned to Indian in 2013.
While the Tribunal has taken into consideration the articles provided at the hearing about honour killings of Dalits because of their relationships with people from other castes, and accepts that such violence occurs in India, the Tribunal does not accept the applicant was in such a relationship. The Tribunal considers the applicant has fabricated these claims in order to found a protection visa application.
On the evidence before it the Tribunal is not satisfied there is a real risk the applicant would suffer serious harm, or harm of any kind, due to a previous relationship with a girl from a different caste and for being held responsible for her suicide (which the Tribunal does not accept occurred), if he returned to Indian now or in the reasonably foreseeable future.
The Tribunal has also considered the applicant claims that he fears returning to India because of the ongoing discrimination against Dalits in India. The Tribunal has considered the applicant’s written claims that Dalits are treated as low level human beings and are not allowed to enter any temples or drink from the same wells or attend temples with other castes or drink from the same cups in tea stalls and wear shoes in the presence of an upper caste, and that his father was discriminated against severely in employment opportunities. During the hearing the applicant told the Tribunal that due to the discrimination against his caste he can’t get a good job, and he can’t go to the places where the higher castes live and they don’t treat him the same as other people. On the evidence before it the Tribunal is prepared to accept the applicant belongs to a caste known as Dalit.
During the hearing the Tribunal noted that county information indicated that while caste was still a social factor in India and discrimination continues to occur[1], many traditional prejudices had changed. The Tribunal notes that India’s constitution and other laws guarantee equal status for all citizens and outlaws untouchability practices[2].The applicant told the Tribunal that while the official information may indicate this, the people don’t always follow the government rules. On further questioning the applicant conceded Dalits can find employment, but only if they follow the higher caste rules. The Tribunal also noted the applicant had been able to attend and complete his secondary school education and attended a college for a Bachelor Degree, which according to the applicant’s written claims, was also attended by students from higher castes. The applicant conceded he was not stopped from attending school and pursuing his education because of his caste. The applicant told the Tribunal the government rules meant he could study, but that people follow their religious rules and that higher caste think they are the kings and Dalit have to do whatever they say.
[1] Aggarwal A et al., ‘Caste and the Power Elite in Allahabad’, Economic and Political Weekly, 7 February 2015, < Borooah VK et al., ‘Caste, inequality, and poverty in India: a reassessment’, Development Studies Research, Vol. 1, No. 1, pp. 279-94, October 2014,
[2] India’s Constitution in article 17, together with articles 14, 19, 21, 23, and 47 abolish the practice of “untouchability.”
13 Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, No. 330 of 1989.
The Tribunal has taken into consideration the applicant’s oral evidence that his [siblings] have finished their studies and are looking for work and living away from home. The Tribunal also notes the applicant had told the Tribunal he had worked with his father on the family farm between finishing secondary school in 2007 and starting college in 2009. The applicant also told the Tribunal his father had financially supported him during his time in Hyderabad and that his father continues to work and support his family and is alright. The Tribunal also accept that the applicant has completed [a] Diploma since arriving in Australia and has been employed in [Australia].
While the Tribunal accepts there is a real chance the applicant may experience some forms of social discrimination due to his caste on return to India, the Tribunal does not accept the evidence before it indicates he will be unable to find employment or that he would suffer significant economic hardship or be denied the capacity to earn a livelihood that would threaten his capacity to subsist. On the evidence before it the Tribunal is not satisfied that the discrimination against Dalits in India is at a level that could be considered serious harm, including those instances of serious harm as set out in s.91R(2) such as threaten the applicant’s life or liberty or result in significant physical harassment or ill treatment or denial of access to basic services that would therefore threaten the applicant’s capacity to subsist.
On the evidence before it, the Tribunal is not satisfied that there is a real chance the applicant would suffer serious harm due to discrimination against his caste as a Dalit, if he were returned to India, now or in the foreseeable future.
Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied there is a real chance the applicant will suffer serious harm if returned to India, for the reasons he has claimed, now or in the reasonably foreseeable future. Therefore the Tribunal finds the applicant does not have a well-founded fear of persecution.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in 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 complementary protection criterion in s.36(2)(aa).
As noted above, the Tribunal finds the applicant is not a witness of truth and is not satisfied the applicant has told the truth in relation to critical aspects of his claims. The Tribunal does not accept the applicant was in a relationship with a girl from a different caste while at college in India, or that the applicant was beaten and threatened by people hired by her family. The Tribunal does not accept [Ms A] committed suicide or that her family blamed the applicant for her death. The Tribunal does not accept the applicant stopped studying and moved to Hyderabad to avoid threats and harm from her family. The Tribunal does not accept the applicant’s family was visited and questioned and threaten five or six time in 2008 by[Ms A]’s family, and the Tribunal does not accept the applicant’s family home continues to be watched. The Tribunal does not accept the applicant was, or is, of any adverse interest to anyone or any family due to a previous relationship. The Tribunal considers the applicant has fabricated these claims in order to found a protection application. The Tribunal does not accept the applicant was in hiding or changed his accommodation regularly to avoid being found prior to leaving India. The Tribunal does not accept the applicant feared for his safety at the time he left India. The Tribunal does not accept the applicant risked his life and safety when he returned to India in 2013. The Tribunal does not accept there is a real risk the applicant would suffer significant harm, or harm of any kind, due to any previous relationship, on return to India.
While the Tribunal accepts there is a real risk the applicant may experience some form of social discrimination because of his caste, on return to India, the Tribunal does not accept that it would be at a level that could be considered significant harm. The Tribunal does not accept there is a real risk the applicant will be arbitrarily deprived of his life, or that the death penalty will be carried out on him. The Tribunal does not accept that there is a real risk that he will be subjected to torture, or cruel or inhuman treatment or punishment; or subject to degrading treatment or punishment.
Therefore, having considered the applicant’s circumstances individually and cumulatively, for the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that the applicant will suffer significant harm.
CONCLUSION
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa.
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Chris Thwaites
Member 14 July 2015
ATTACHMENT A - RELEVANT LAW
In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides that:
‘(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 under the Refugees Convention as amended by the Refugees Protocol; 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; 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.’
Refugee criterion
Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’. Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments.
Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a person who:
‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.’
The time at which this definition must be satisfied is the date of the decision on the application: Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288.
The definition contains four key elements. First, the applicant must be outside his or her country of nationality. Secondly, the applicant must fear ‘persecution’. Subsection 91R(1) of the Act states that, in order to come within the definition in Article 1A(2), the persecution which a person fears must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’. Subsection 91R(2) states that ‘serious harm’ includes a reference to any of the following:
(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.

In requiring that ‘persecution’ must involve ‘systematic and discriminatory conduct’ subsection 91R(1) reflects observations made by the Australian courts to the effect that the notion of persecution involves selective harassment of a person as an individual or as a member of a group subjected to such harassment (Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason CJ at 388, McHugh J at 429). Justice McHugh went on to observe in Chan, at 430, that it was not a necessary element of the concept of ‘persecution’ that an individual be the victim of a series of acts:
‘A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is “being persecuted” for the purposes of the Convention.’
‘Systematic conduct’ is used in this context not in the sense of methodical or organised conduct but rather in the sense of conduct that is not random but deliberate, premeditated or intentional, such that it can be described as selective harassment which discriminates against the person concerned for a Convention reason: see Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [89] - [100] per McHugh J (dissenting on other grounds). The Australian courts have also observed that, in order to constitute ‘persecution’ for the purposes of the Convention, the threat of harm to a person:
‘need not be the product of any policy of the government of the person’s country of nationality. It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution’ (per McHugh J in Chan at 430; see also Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 per Brennan CJ at 233, McHugh J at 258)
Thirdly, the applicant must fear persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’. Subsection 91R(1) of the Act provides that Article 1A(2) does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless ‘that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution’. It should be remembered, however, that, as the Australian courts have observed, persons may be persecuted for attributes they are perceived to have or opinions or beliefs they are perceived to hold, irrespective of whether they actually possess those attributes or hold those opinions or beliefs: see Chan per Mason CJ at 390, Gaudron J at 416, McHugh J at 433; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570-571 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
Fourthly, the applicant must have a ‘well-founded’ fear of persecution for one of the Convention reasons. Dawson J said in Chan at 396 that this element contains both a subjective and an objective requirement:
‘There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear.’
A fear will be ‘well-founded’ if there is a ‘real chance’ that the person will be persecuted for one of the Convention reasons if he or she returns to his or her country of nationality: Chan per Mason CJ at 389, Dawson J at 398, Toohey J at 407, McHugh J at 429. A fear will be ‘well-founded’ in this sense even though the possibility of the persecution occurring is well below 50 per cent but:
‘no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’ (see Guo, referred to above, at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ)
Complementary protection criterion
An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out above. The Full Court of the Federal Court has held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the context of the Refugees Convention as referred to above (see Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [246] per Lander and Gordon JJ with whom Besanko and Jagot JJ (at [297]) and Flick J (at [342]) agreed). ‘Significant harm’ for the purposes of the complementary protection criterion is exhaustively defined in subsection 36(2A) of the Act: see subsection 5(1) of the Act. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’. The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.

< Centre for Equity Studies, India Exclusion Report 2013-14, Books for Change, 1 July 2014, Immigration and Refugee Board of Canada, India: Situation of inter-caste couples, particularly those involving Dalits, from both urban and rural locations, including societal attitudes, treatment by government authorities and the treatment of their children (2005-April 2012), 11 May 2012, < ; Human Rights Watch, Cleaning Human Waste: Manual Scavenging, Caste, and Discrimination in India, 1 August 2014, <

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Citations

1413017 (Refugee) [2015] AATA 3168

Cases Citing This Decision

Cases Cited

Statutory Material Cited

SZSPE v Minister for Immigration & Border Protection & Anor [2013] FCCA 1989

Chemaly, Yolla Majid v Minister for Immigration and Multicultural Affairs [1998] FCA 1403

AWL17 v Minister for Immigration and Border Protection [2018] FCA 570