1414024 (Refugee)

[2016] AATA 4011

1414024 (Refugee) [2016] AATA 4011 (8 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1414024

COUNTRY OF REFERENCE:                  India

MEMBER:Josephine Kelly

DATE:8 June 2016

PLACE OF DECISION:  Sydney

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

Statement made on 08 June 2016 at 12:31pm

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. 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).

2. The applicant claims to be a citizen of India.  He applied for the visa [in] September 2013 and the delegate refused to grant the visa [in] July 2014.

3. The applicant appeared before the Tribunal on 6 October 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

   SUMMARY OF THE LAW

4. 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, the applicant 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.

5. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any 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.

7. 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 a protection 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 the applicant 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’).

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take 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 any country information assessment 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, AND FINDINGS

   The issues in this case

9. The issues in this case are:

   ·Is the Tribunal confined to considering the applicant’s claims against the complementary protection criterion because he has previously claimed protection based on the refugee criterion?

   ·Are the applicant’s claims for protection credible?

   ·If so, are the claims supported by independent country information?

10. For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.

    Background

11. The tribunal makes the following uncontentious findings by way of background.

12. The applicant was born on [date] in Mumbai in Maharashtra state, India. His religion is Hindu.

13. The Tribunal accepts that the applicant is a citizen and national of India, based on the certified photocopy of 18 pages of his Indian passport that was issued [in] 2005 in Mumbai and expires [in] 2015 which was before the decision maker in relation to the first protection visa application made in 2009.  It replaced a passport that had been issued [in] 1992 which had been damaged and was retained.

14. He is married and has [children]. He speaks, reads, and writes Hindi and Punjabi.

15. He provided only one address in India from January 2009 in Mumbai.

16. The applicant arrived in Australia from Mumbai holding a [temporary] visa [in] January 2009. [In] March 2009 he applied for a protection visa which was refused. After a series of unsuccessful appeals as far as the Full Federal Court, he became unlawful [in] June 2010.

17. [In] January 2013 the applicant was located by [Compliance] and detained in detention. Thereafter he made a series of requests for ministerial consideration which were not allowed. Finally, he lodged this application [in] September 2013.

18. The applicant attended a departmental interview [in] July 2014.

19. The applicant provided a copy of the delegate’s decision record to the Tribunal which includes a useful summary of what was said during the interview.  The Tribunal has a recording of the interview.

20. Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a).

21. As stated above, the applicant applied unsuccessfully for protection in 2009. The application was considered against the refugee criterion (s.36(2)(a)).  In light of the above authorities, the Tribunal has considered the applicant’s claims only in relation to the complementary protection criterion, s.36(2)(aa).

    The applicant’s claims for protection

22. The applicant made the following claims for protection in a statement supporting his visa application:

    ·He has always been active in youth, community and political activities.

    ·In 2000 he was an active member of the ruling party called “Bharitiya Janta Party”, BJP. The opposition party was the Indian Congress Party called Congress.

    ·Because of his active involvement in BJP, a group of four or five active members of Congress warned him not to be involved with BJP. They threatened to beat him badly. He continued his involvement in BJP.

    ·One day he was attacked badly by a group of [people] led by an active worker for Congress, [Mr A].  That day, he was returning home on his motorcycle when he was attacked from behind. They cornered him and started beating him up and also hit him with an iron rod on the [head]. He was bleeding and losing consciousness.

    ·People standing nearby took him to the private hospital and informed his family.

    ·Dr [name] was in charge of the hospital and treated the applicant. He informed the applicant and his family that because of the attack on the [head] [he suffered medical conditions]. He continues to suffer from those problems.

    ·After being discharged from hospital he saw the same group and [Mr A] one day. They stopped him and [Mr A] warned the applicant that he was very lucky that he was still alive. [Mr A] also warned the applicant not to be involved with BJP, and if he or anyone else reported the incident to the police he would pursue the applicant and his family and kill each one of them. Therefore the applicant decided not to report the incident to the police because [Mr A] has a strong political background. The applicant thought that because of the risk to his life, it was better to leave the country for the safety of himself and his family.

    ·Because of that risk one of his relatives advised him, and he arranged a one year visa for Australia. He started to live a good risk-free life here.

    ·His problems in India have been getting worse during his stay here. [In] November 2012 the same group burnt down his house where his family members used to live. It was a rental property. The applicant’s [child] filed a report against them to the police but the police took no action because of their political background.

    ·The applicant attached the police FIR (First Incident Report). 

    ·They tortured his family members and attacked his [child] three times, the last time [in] January 2013. His [child] was seriously injured and needed [surgery]. They continue to threaten to kill all the applicant’s family members.  His family members have left that suburb and gone to a different place where his relatives used to live. But still they continue to warn the applicant and his family members. They warned his family to inform him never to return.

    ·“We” reported them to the police but still the applicant feels there is a risk to his life if he goes back to India.

    ·Because of all those problems in India, the applicant fears getting seriously injured of possible death.  He seeks protection from the Australian government.

    ·The applicant was aware of his visa conditions but he was introduced to an Indian in Australia who told him how to extend his visa every six months. He was taking money from the applicant for the visa fees and consulting charges. The applicant spent about $[amount] to date. When he was told his visa status, that is that he had been living unlawfully in Australia, the applicant was shocked because he intended to live in Australia to avoid all problems.

    ·The applicant was in detention for seven months and felt stressed. He started to become sick and had [medical] problems. They took him to hospital and he had a medical certificate with the application. He has [medical condition] and was suffering problems [from other medical conditions].

    ·The applicant provided supporting documents but claimed that some old documents have been burned in the house fire last year.

    ·The applicant claimed that he has very few friends and relatives in Australia.  He feels alone here.  He is uneducated but was still trying “to tell his life”.

23. The applicant later provided a further one-page document in which he set out claims for protection. Following are different claims from those already listed:

    ·when the applicant was in the clinic being treated, [Mr A] visited him and warned him that if he decided to make a report against him, [Mr A] would pursue the applicant and his family and kill them, and so the applicant decided not to report the incident and left the country.

    Documents supporting the applicant’s claims

24. The applicant provided copies of the following documents in support of his visa application:

    ·A discharge referral of [a] local health district in relation to an attendance [in] April 2013 which stated the diagnosis as [medical condition].

    ·A report dated [in] May 2013 about an examination at [suburb] diagnostics which reported that there was no apparent cause of the [medical condition] complained of.

    ·A report dated [in] April 2013, apparently from a specialist medical practitioner to the treating doctor, about the applicant’s [medical condition], including a recommendation that he be fitted with [a medical device].

    ·[A specialist] assessment dated [in] March 2013 relating to the applicant.

    ·A report from the [newspaper] dated [in] November 2012 which is very difficult to read, about a blast occurring in a house at [location].

    ·Several documents in the language the tribunal does not understand, all dated [in] November 2012.

    ·A referral dated [in] January 2013 from [a specialist] surgeon in Mumbai for x-rays and CT scan following [an] accident. The name is not legible.

    ·An apparent identity card for [Mr B] for the purposes of income tax.

    ·Documents on [name] Hospital letterhead relating to the patient [Mr B] born [date] and admitted [in] January 2013 in relation to [an] accident.

    ·Two reports of [MRI] dated [in] January 2013 for [Mr B].

    ·An identity card for a [person with the same surname as applicant], whose first name is illegible.

    ·An English translation of a statement from two residents of [location] to police dated [in] November 2012.

    ·An English translation of a statement of the applicant’s wife to police about a fire in her room [in] November 2012.

    Consideration and findings

25. The Tribunal did not find the applicant’s evidence about his claims for protection to be credible because of the inconsistencies between his written and oral claims for protection and with documents he produced to support those claims, the lack of corroborating documents in respect to aspects of his claims, and unpersuasive and implausible responses to some questions. 

26. Following are some examples of those inconsistencies, lack of corroborating evidence, and his unpersuasive and implausible responses.

27. Near the beginning of the hearing, the applicant told the Tribunal that when he left India, he owed [amount] to [amount] lakhs in relation to his [business].  He had had to borrow lots of money.  He did not remember the address of the business, but did remember its [name], the area where it was located. He gave the list of debtors to his family when he left and they were able to repay the debts in full when they sold their house where they had lived for [number] to [number] years.  They were left with one or two lakhs so they could rent a house.

28. The applicant agreed that he had too much debt which he could not finance but claimed that he only came to Australia after he had been beaten and not because of his business problems. 

29. He claimed that he had been beaten three to four times. The last time he was [hit] and consequently he has [certain problems]. He claimed that he was on a bike. It was raining. A vehicle parked, and [a number] people got out and hit him with rods.  That was in 2007 or 2008. He could not be more precise. He said that he did not go to hospital because police would get involved and would ask a lot of questions.  He went to a dispensary where he was treated with an injection and medication and “became OK” except that he had [certain problems] as a result of an [injury].  The doctor recommended that he go to a private doctor for a [specialist] test.

30. When the Tribunal asked why he had not provided evidence from the doctor about that incident, the applicant said that he had provided lots of documents and he did not remember all that happened.  The Tribunal commented that he had provided medical reports about his [child]’s 2013 injuries. The applicant then said that he could not provide documentation in 2009 because he lost all his papers in India due to heavy rain because he used to live on the ground floor.  When the Tribunal commented that he could have got copies from the doctor, the applicant said that they are “not very big doctors” and did not keep entries like the 2013 records.  When the Tribunal commented that doctors keep records so that they know medical histories, the applicant said that they were “not big level” documents.  His [child]’s treatment was expensive. 

31. When the Tribunal asked him to tell it about the other beatings he had suffered, the applicant said that he had not been beaten before the 2007/2008 incident but had been threatened. He explained that the threats and beatings arose because he had sold a vehicle to people with political ties with Congress who only paid [amount] lakh and owed him [amount] lakhs. 

32. When the Tribunal commented that it did not understand why those people beat him if they owed him money, the applicant said that they supported Congress and he was BJP.   After repeating the comment and the applicant giving the same response, the Tribunal asked the applicant if he knew the people before they bought the car.  The applicant asked for a toilet break.

33. The Tribunal did not find the applicant’s evidence responsive to the question.

34. When he returned to the hearing room, the applicant said that he did not know them before they bought the car.  Other shop keepers said that they were asking how much money before they bought the car.  His friends informed him about them but he paid no attention.  After they bought the car, his friends said that they were the persons inquiring about him.

35. The applicant said that the attack occurred two or three months after they bought the car. He was threatened about one month after the purchase because he had asked them to pay the balance.  They said that “you don’t know who we are”.  They told him not to ask for the money.  Afterwards, he came to know that they supported Congress.  He asked friends for help but no-one helped him. He took no further action because they had political ties.

36. The applicant said that he did not ask them to pay the balance after the threat.  The threat was “we are from Congress, if you ask about the money, we can do anything”.  He had told a few people they owed him money.  When asked who threatened him, the applicant said that [Mr A] threatened him and was responsible for the fire in the house and his [child] being beaten.  [Mr A] came in person.  He was standing outside the applicant’s [business] with friends chatting.

37. The applicant’s evidence in the above two paragraphs about the threat and when he found out they were from Congress is inconsistent. 

38. When the Tribunal asked the applicant if he had had any further contact with [Mr A] after the beating, the applicant said that about six or seven months after the beating, [Mr A] told him that he was lucky, and next time he will not spare him.  The Tribunal asked why [Mr A] was still wanting to harm the applicant when he was not asking for the money.  The applicant said that they had made up their minds to finish this person.

39. The applicant told the Tribunal that he continued to work in his business after the beating and sold all the vehicles about three or four months before he came to Australia.  He owed money to lots of people.  When the Tribunal asked if something had gone wrong in his business, the applicant’s response was unclear.  When the Tribunal commented that his business must have been going bad if he still owed [amount] to [amount] lakhs after he had sold all his stock, the applicant said that his business was doing really well and then there was the incident.  He became very upset.  He partner did not support him well and sold the business. 

1. The applicant said that he came to Australia one and a half or two years after the beating. He made the decision to come to Australia three or four months before he left.  Once he closed down the business, his life was ruined; his childrens’ lives were ruined. A friend made that suggestion. He agreed that when his business went bad, he was looking for a better future and circumstances were better for him in Australia.

2. When the Tribunal commented that his coming to Australia had nothing to do with [Mr A], the applicant at first made no response and then said that he did not understand.  When the Tribunal said that his business went bad, he sold it and it was looking for a better future, the applicant said that he was really upset when involved in politics.  He can do nothing and was looking for a better future.  He said that he had been helping BJP since 2000 although it had never ruled in Mumbai.  When the Tribunal pointed out that in his application made [in] September 2013 he claimed that he was a member of the ruling BJP, the applicant said that the BJP and Modi were in power. That is correct as of October 2015, but it was following the May 2014 election, after the application had been lodged. Making that incorrect claim in September 2013 does not reflect a significant interest in Indian politics at that time.

3. When pressed about his written claim that he was threatened because of his active involvement in BJP, rather than because of the money [Mr A] owed him as he had said at the hearing, the applicant said that [Mr A] planned it all. That is why he bought the vehicle. It was politically planned.

4. When the Tribunal commented that he had not been harmed in the 12 to 18 months after the beating until he came to Australia, and had lived and had his business in the same place, the applicant said that he was threatened a couple of times after the beating but someone convinced [Mr A] that the applicant had no political connections and so stopped harassing him.   When the Tribunal commented that there was no threat to him, the applicant requested a toilet break, which was granted.  When he returned to the hearing, the applicant said that the friend who had helped him has died.  When the Tribunal repeated that [Mr A] posed no threat to him, the applicant said that [Mr A] had called and asked how he was, and whether he was alive or dead.

5. The Tribunal does not accept the applicant’s evidence given after his return to the hearing room.  It finds that the applicant was attempting to overcome obvious deficiencies in his claims.

6. Later, when the Tribunal had commented that it was concerned that he had made up his claims, the applicant claimed that the threat from [Mr A] continues because he expects that the applicant will ask for the money he owes when the applicant returns to India. [Mr A] knows that the applicant is earning good money in Australia.  The applicant’s relative has told him that and [Mr A] does not know that he was in detention for nine months.  That it inconsistent with the applicant’s evidence that [Mr A] had been persuaded that the applicant had no political connections and so stopped harassing him.

7. The applicant’s explanations for [Mr A]’s interest in him in his written application and at the hearing are inconsistent.  In his application the applicant claimed that it was because of his political activities and at the hearing he initially claimed that it was because the applicant was wanting full payment for a car [Mr A] purchased from him.

8. The applicant sought to overcome the inconsistency when it was pointed out to him by claiming that [Mr A] had a political motivation for buying and not paying for the car and that the applicant’s friend had persuaded [Mr A] that the applicant had no political connections. 

9. The Tribunal found the applicant’s attempt to explain the inconsistency unpersuasive. The Tribunal’s view was reinforced by the applicant’s evidence that he continues to be the target of [Mr A] despite his friend having persuaded [Mr A] that the applicant had no political connections because his friend has died, with the implication that he can no longer help the applicant.  However, if the friend had persuaded [Mr A] that the applicant had no political connections, such that the harassment stopped, there is no reason for the threat to continue because of the applicant’s political opinion.

10. In making that finding, the Tribunal has considered the applicant’s claim to have been actively involved in the BJP since 2000 and an implied claim that his continued involvement was the reason [Mr A] continued to pursue him. The Tribunal does not accept such a claim because it does not accept that the applicant’s evidence about his reasons for leaving India are true.  It finds that the reason he left India was because his business failed.  It does not accept that the claimed money owed by [Mr A] was the cause.  The applicant’s financial problems were much greater, given the amount of money he owed after having sold everything, as the Tribunal pointed out to him.  

11. The applicant’s claim made in September 2013 that he was member of the ruling party is inconsistent with his evidence that the BJP has never ruled in Mumbai and with the fact that the BJP only came to power nationally in 2014.  That evidence does not support a finding that he was a committed and active BJP supporter. The Tribunal does not accept that he was.  His evidence does not support a finding that any political opponent other than [Mr A] posed a threat to him because of his activities with the BJP.  The Tribunal does not accept that [Mr A] posed a threat to him because of the applicant’s political affiliation.  The Tribunal does not accept that anyone has posed a threat to the applicant because of his political affiliation or will in the future.  

12. The several medical reports relating to injuries suffered by the applicant’s [child] [in] January 2013 are in English.  They all refer to the applicant’s [child] being injured in a vehicle accident.  The applicant told the Tribunal that his [child] was coming out of [a building].  [Mr A] and his men hit [him/her] with a car.  His [child] saw him but did not tell anyone about that.  This incident is the most serious incident claimed in relation to the applicant’s [child].  [He/she] was admitted to hospital and treated. If [Mr A] had been responsible for that incident, the Tribunal would have expected the incident to have stood out to the applicant and to have been specifically described because it was by far the most serious “attack” on his [child].  That the applicant did not provide some detail of the incident in his application, is inconsistent with it being so caused.  

13. When questioned about the other times his [child] was attacked, the applicant said that before the vehicle incident, his [child] was slapped on many occasions and threatened but his [child] never told the applicant until [he/she] was hospitalised because of the vehicle incident. When the Tribunal commented that being slapped on many occasions is different from being attacked on many occasions, the applicant said that he was very tense and worried because of his health condition at that time.  The applicant’s description of the slapping and threats, demonstrated that they were minor incidents compared to his [child] being run down and injured, and requiring hospital treatment.

14. There are no police reports in relation to the incident.  The Tribunal infers that the applicant claims that his [child] did not do so because it would have caused great risk of harm.  However, there is no corroborating statement from his [child] provided to the Tribunal, which would have been easily obtained by the applicant. In making that finding, the Tribunal has taken into account that he applicant was not represented but he did provide documents in his support of his case.  The Tribunal does not accept that the applicant’s [child] suffered the injuries referred to in those reports as a result of an attack by [Mr A] or his accomplices. 

15. The applicant told the Tribunal that when he came to Australia he had a relative here who left and told [Mr A] that the applicant was here and showed him the house where his wife and children were living.  At that time, his friend who had supported him was dead.  [Mr A] caused the fire to the house. The Tribunal does not accept that claim.

16. There are translations of two statements made to police about the fire. They are what was described in the applicant’s statement as the FIR report. The applicant’s wife stated that she went out “after locking my room” and arrived home at around [time] hours and saw “some suspicious circumstances outside the room”.  With the help of neighbours she opened the door of “my room” where the fire caught.  The neighbours tried to put out the fire.  Someone called the police and fire-brigade and came and put out the fire.  She describes the damage done to the room, but in so doing seems to refer to more than one room. She said the reason for the fire “might be electric short circuit and explosion of gas cylinder” and she has no suspicion of any person and makes no complaint about any person “for such fire tragedy”.  She says that her husband has gone to Australia “for his work, on his source of income from his job, my family is surviving and my [children] are also doing jobs at Mumbai.  The statement is dated [in] November 2012. 

17. There is one statement dated [in] November 2012 provided by two “punch witnesses”.  They say that they were called around [time] hours by PSI Mr [name] “as punch witness” to the room where the fire occurred.  Their addresses are in the same building as the address of the applicant’s wife.  From the content of their joint statement, their role seems to be witnesses to what the applicant’s wife told the police officer. The content of their statements indicates that they were not witnesses to the fire. 

18. While the Tribunal has some doubts as to the genuineness of the documents and whether the fire reported in the [newspaper] occurred at his wife’s home, accepting that they are genuine and that there was a fire in the room or apartment where the applicant’s family lived at that time, the statements do not support the applicant’s claim that the fire was caused by [Mr A]. 

19. When the applicant was asked about his wife saying that he had gone to Australia for work, he said that if she had told them he went because of political issues, they would start asking lots of questions.  He said that he has not sent them much money.  It was burned in the fire. When asked about the cause of the fire being an electric short circuit and explosion of a gas cylinder, the applicant said that the kitchen window was open and someone threw a burning match near the gas cylinder.  He said that his wife did not mention that in her statement because she is scared.  Someone told her someone was standing outside.  

20. The applicant’s own version of what happened does not support a finding that [Mr A] caused the fire.  Such a conclusion would be speculative. The Tribunal does not accept that his wife being afraid adequately explains her saying that she had locked the room and not disclosing that a window had been left open or not mentioning that someone had been seen standing outside.  She did not have to identify the person. The applicant provided no statement from his wife to the Tribunal setting out the circumstances he claimed occurred around the fire.   

21. The Tribunal does not accept that the fire was caused by [Mr A].

22. When the Tribunal asked the applicant if [Mr A] ever visited him when he was in the clinic, he said no.  When the Tribunal drew the applicant’s attention to the document in which he made that claim, he said that it was eight years ago and he cannot remember all those things. His [medical condition was present] when he prepared the documents.

23. The applicant prepared the documents around and after September 2013.  The medical evidence he provided related to the period just after he was detained in March 2013. They do not support his claims about his poor health around and after September 2013.

24. For the above reasons, the Tribunal does not accept that the applicant’s claims for protection are credible.  It does not accept that [Mr A] and his supporters attacked or threatened the applicant at all or owe the applicant money or will attack or threaten him in the future.  It does not accept that [Mr A] and his supporters attacked or threatened the applicant’s [child] or caused a fire in the applicant’s home or will attack or threaten them in the future. It does not accept that [Mr A] or anyone else attacked or threatened the applicant because of his political affiliation or will do so in the future.

25. The Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's being removed from Australia to India, there is a real risk that he will suffer significant harm.

26. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

27. 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

28. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Josephine Kelly
    Member