1415234 (Refugee)

[2015] AATA 3295

1415234 (Refugee) [2015] AATA 3295 (10 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415234

COUNTRY OF REFERENCE:                  India

PRESIDING MEMBER:  Stuart Webb

MEMBERBrendan Darcy

DATE:10 August 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 10 August 2015 at 3:44pm

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 who claims to be a citizen of India, applied for the visa [in] March 2014 and the delegate refused to grant the visa [in] August 2014.

3. The applicant appeared before a multi Member constituted Tribunal on 7 August 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. The applicant was represented in relation to the review by his registered migration agent, who did not attend the hearing. The applicant provided a copy of the delegate’s decision to the Tribunal.

   RELEVANT LAW

5. 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.

   Refugee criterion

6. 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).

7. 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.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. 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’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

19. 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

20. The applicant made the following claims with his application. He has not experienced harm in India, but has been threatened that he will be killed on his return by persons of criminal nature from his village. His brothers have been injured in 2008 and there were charges. The case is pending in the courts. Due to ‘property/inheritance/enmity issues’ his brothers have been threatened on several occasions, as has the applicant. These property issues are the cause of the problem between the families, if the applicant returns they may fear he may challenge him legally for property issues. His brother have ben to the police but no action has been taken. The applicant does not trust the police

21. The applicant left India in August 2009 on a student visa, and returned to India in August 2010 to see his family until September 2010.  He has remained in Australia since that date. The applicant a Sikh and is divorced.

22. The applicant provided some translated documents, including a letter to the SHO at [a] Police Station, translated dated [in] November 2013. This stated there was a quarrel between the applicant’s brothers and two other men [in] December 2012, and that there are subsequent threats to the applicant’s brothers and the applicant. Further documents pertaining to the incident, created during 2009, were provided.

23. The applicant attended an interview with the Department. The delegate noted that the applicant’s brothers were in a dispute regarding land, which culminated in a physical fight. His brothers and the other men were charged with offences, and the dispute is still before the court. The delegate noted the applicant’s claim that a threat to kill the applicant’s brothers and the applicant was made in 2011, and that if the case goes against these other men they will kill the applicant. The delegate accepted that the applicant’s family was involved in a land dispute in India.

24. The delegate did not consider that the claim presented any Convention ground was evident in the claims. The delegate considered the claim under the Complementary protection provisions of the Migration Act. The delegate considered that the claim of a land dispute was plausible, but that in the applicant’s individual circumstances, there was no real risk of significant harm for the applicant.

25. The delegate noted that the court process has been ongoing since 2008 and nothing had happened to his family to date. His brothers have attended court on a monthly basis since December 2008, and there has been no retribution in that prolonged period of time. Both his brothers have started families in that time and they have not been sought out during the period of the dispute. The delegate noted that the applicant voluntarily returned to Delhi in August 2010 for a month, after this dispute occurred, and was not harmed or threatened during this visit. The delegate noted the significant delay in the applicant lodging the protection visa application, noting that he had arrived in Australia in August 2009 but did not lodge his protection visa application until March 2014. The delegate listed the migration applications the applicant had made prior to lodging the protection visa. The delegate noted the applicant’s response that he had been studying, and he thought he may have been able to remain in Australia through this process. His wife and he were fighting, then he did not have a visa and he was in hiding. He was not aware of protection visas. The delegate did not accept this as an excuse for such a lengthy delay in the lodgement of the protection application, and referencing the case law of Selvadurai v MIEA (1994) FCA 1105, considered that the delay in applying was a factor in considering that the applicant did not have a genuine fear for his safety.

    Findings and reasons

    Country of nationality

26. The applicant claims to be a citizen of India and provided copies of his passport to the Department with their application. The applicant had his Indian passport at the hearing. The Tribunal finds that the applicant is a citizen of India, that India is the applicant’s country of nationality for the purposes of the Refugees Convention, and that India is his receiving country for the purposes of complementary protection.

    Third country protection

27. There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Credibility

28. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

29. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

30. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

31. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

32. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

33. The Tribunal has also considered the published guidelines of the Refugee Review Tribunal in relation to credibility.

    2.4 Findings made by the tribunal on credibility should be based on relevant and material facts. What is capable of being believed is not to be determined according to the member's subjective belief or gut feeling about whether an applicant is telling the truth or not. A member should focus on what is objectively or reasonably believable in the circumstances.

    2.5 The tribunal should make clear and unambiguous findings as to the evidence it finds credible or not credible and provide reasons for such findings.

    2.6 In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant's account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant's account of past events is true. If, on the other hand, the tribunal is able to make confident findings as to particular events, it is not obliged to consider the possibility that its findings of fact may not be correct. The rejection of some of the evidence on account of a lack of credibility may not lead to a rejection of an applicant's claim for a protection visa. For example, when assessing an applicant's claims against the Refugees Convention, if an applicant is disbelieved as to his or her claims, the tribunal must still consider whether, on any other basis asserted, a well-founded fear of persecution exists. However, the tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.

34. The applicant claimed at the hearing that he had himself been involved in the fight that was now the subject of criminal proceedings in India and that he was threatened because of his involvement in this fight. The applicant stated he had come to blows in the fight, and been hit during the proceedings. The applicant stated he fled the fight and the region after the fight.

35. The applicant had not made this claim previously in his application. In the statement the applicant stated that he had not experienced harmed in India. There is no reference in his application that he had been involved in the fight itself, which would reasonably be expected in an application for protection and that was the incident raised as the reason for why he could not return home. No reference to the applicant being involved in the fight is included in the delegate’s decision, again a significant concern given that this was the reason the applicant has stated he could not return to India. The applicant has also provided a series of documents that he states are translated contemporaneous statements made by his brothers with respect to the incident [in] December 2008. Nowhere in the statements made by the applicant’s brothers is there any reference to the applicant, though the statements go into significant detail as to what occurred in the incident, naming those who were there, including a servant[1]. The servant’s statement also makes no reference to the applicant being in attendance despite detailing who was in attendance in detail.[2] The applicant also provided a more recent document to the Tribunal[3], which included a criminal prosecution against the applicant’s [brothers], the landlord whom the applicant’s brother rented the land from, and the landlord’s mother. The landlord and landlord’s mother are the brother and mother respectively of the persons with whom the fight was held. In this document the applicant is again not mentioned.

    [1] DIBP Folio 50-51, 42, 40

    [2] DIBP Folio 41

    [3] AAT Folio 33

36. The applicant stated that the other men did not know who he was and his brothers decided to leave the applicant out of the account for his safety. The applicant stated he did not know why the brother and mother of the assailants were included in the criminal proceedings against the applicant’s brothers, but that it may be because of some form of historical enmity. The applicant stated that the men now knew who he was, as evidenced in an undated statement[4] by his brother, the applicant stating from 2011, which accused the men of threatening to kill the applicant’s brothers and named the applicant as someone they would harm. The applicant stated he had told his lawyer that he was involved in the fight.

    [4] DIBP Folio 56

1. The Tribunal does not accept that the applicant was involved in the fight for the following reasons. The Tribunal does not accept that the applicant’s [brothers] would choose to leave out any mention of the applicant in the statements they provided to the police on the day of the incident. The description of the incident from [the] brothers is relatively similar, detailed on the same day of the incident, and the applicant is conspicuous in his absence in both statements. Leaving the applicant out in such circumstances, after attending the hospital, ‘to protect him’, appears to be a strange decision arrived at by his [brothers] when issues of recrimination and retribution had never been alleged or raised at that time. The Tribunal considers that the brothers would have referenced the applicant’s attendance as a witness had he been there. The applicant, had he truly been either a participant or witness to the incident, would have been someone who could have attested to the incident, including the provocation. That he is not included in these statements, of the time or in any documentation of the police, causes the Tribunal to have significant concerns regarding the claim that he was involved in this incident.

2. The Tribunal expressed its concern that the applicant was actually unknown to these people in the first place. The applicant has lived in the village for most of his life, though at the hearing he stated that he had also lived with his [relative] in a village around 30kms away, though this was not included in his application. The applicant stated that he occasionally assisted his brothers in the farming of the land, while also being employed in a [business] which kept him away from the farm at times. The applicant stated that the two men who were involved in the fight had gone to college with his brother, which is why they knew him. The Tribunal finds it concerning that the applicant would be an unknown person to these men, that they would not know who he was during the incident. There is no reference to the applicant in the detailed statement made by [one of the men] which has led to the criminal charges against the applicant’s brothers being brought.

3. From the evidence of the applicant, it would appear that by sometime in 2011 the men knew who the applicant was, as in the undated statement[5] he was named as being threatened on return. It is therefore highly concerning that the applicant is not a party to the court proceedings, if he was a participant in the fight. The document provided by the applicant at the hearing makes no mention of the applicant, but has included two other people who were not involved in the fight, the brother and mother of the people whom the applicant’s brothers fought. The applicant stated that they may have been included due to some historical enmity. The Tribunal pointed out that had the applicant been involved  in the fight, and given that his name was known, it is reasonable to presume that the applicant would have been named and alleged to have been involved, leading to criminal proceedings against the applicant. The applicant stated that he may not have been included because he was overseas. The Tribunal stated that the applicant’s residence in Australia was no reason for criminal allegations or charges to be lodged against him, and the lack of proceedings against the applicant was another reason to determine that the applicant was not involved in the dispute.

   [5] DIBP Folio 56

4. The applicant also stated that perhaps a new case would be created. The Tribunal expressed considerable doubt as to a new case arising so long after an incident of this nature being lodged. The Tribunal does not consider that any legal proceedings would involve the applicant so long after the incident occurred. The Tribunal does not consider that there is any consideration by any party that the applicant would become involved in any legal proceeding on return to India.

5. The Tribunal asked about the fight itself and the applicant gave some explanation for the reason. The applicant stated that his brothers had rented the land from one brother (the landlord), but that water rights were being excluded from that land by the other brothers, causing the land to dry up. The applicant stated that his brothers had dug channels to let the water come onto their rented land. The two men with whom they fought were angry with this, and came to destroy the channels, as they had done in the past. This was what caused the fight.

6. The Tribunal compared this reason to the reasons given by the applicant’s [brothers] separately in their statements. [The] brothers state specifically that accusations were made to them by their assailants ‘why are you setting our Khaal’ and ‘why are you cleaning our Khaal’, the exact phrase reiterated by the servant. As the Tribunal noted to the applicant, the accusation was not about the use of water, but was specifically about the use of the land itself. The applicant could not explain this contradiction. Further issues arose as to what happened at the end of the fight, which the applicant stated left the two other men ‘fainted’, though the Tribunal noted that the statements both said that ‘they drove off in their tractor with their arms’. The applicant stated he had fled the fight. The applicant’s inconsistency with respect to the fight itself causes the Tribunal to have further significant concerns that he was not involved in the fight itself.

7. Having considered the evidence of the applicant provided in his application, including the hearing before the Tribunal and in the documents provided by him, the Tribunal finds that the applicant was not personally involved in the fight in any way, was not a participant or witness to this incident. The Tribunal does not accept that any involvement in this fight is attributed to the applicant by any person, or that he has been threatened at all because of any involvement in this fight.

8. The Tribunal accepts that the applicant’s brothers were involved in a fight, for which there are ongoing criminal proceedings, evidence of which was provided by the applicant. His brothers were charged because they had been involved in the fight. The applicant stated that similar criminal proceedings are continuing against his brothers’ two assailants as well, though the applicant’s evidence regarding this aspect of the proceedings was vague and limited. He did not know what charges were being proceeded with against them, or indeed his brothers, though he knows that courts take a long time in India. The Tribunal further does not accept that the applicant will become involved in any criminal proceedings on return to India, either as an applicant or defendant, as he was not involved in the fight, and would not commence or be drawn into to any proceedings in the future over this dispute.

9. The applicant claimed that two months after the fight he had left the area, going to reside in Jalandhar. The Tribunal noted that in his application he had not mentioned living in any other location except his home village, from birth until August 2009, when he came to Australia. The applicant stated he had registered some marriage documents that stated he was residing in Jalandhar. The applicant did not provide this material. The Tribunal does not accept that the applicant moved to Jalandhar. Given he was not involved in the fight, the applicant had no reason to flee the area. The Tribunal noes that the applicant’s [brothers], who were involved in the fight, had remained in the village and in the family home ever since the incident without issue. The applicant stated that they are going about their daily business without being threatened or harmed.

   Convention Nexus

10. The Tribunal raised its concern that the claim that the applicant had raised did not disclose a Convention nexus, that the dispute arose over the use of land and a fight ensued between the applicant’s brothers and two other men, leading to threats against the applicant as well. The Tribunal noted that the delegate determined that the evidence of the applicant did not suggest a Convention nexus. The Tribunal asked if the applicant believed there was a Convention nexus, having explained that the harm arose out of the applicant’s race, religion, nationality, membership of a particular social group or political opinion. The applicant stated he did not know this. His agent had not advised him of this issue.

11. The Tribunal considers that this dispute is a personal dispute arising from the use of land. The Tribunal noted its concern at the hearing that there were no Convention grounds being raised by the applicant. The applicant did not raise any Convention claims to the Tribunal, in written or oral form.

12. The Tribunal finds that a Convention ground is not the essential and significant reason for the harm feared. The Tribunal finds that that the applicant does not have a well-founded fear of persecution for a Convention based reason, now or in the reasonably foreseeable future.

    Complementary Protection

13. Having determined that there are no Convention grounds, the Tribunal has considered the applicant’s claims under the Complementary Protection provisions of the Migration Act 1958. In considering this, the Tribunal notes the guidance that Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm.  The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

14. The applicant has claimed that he has been threatened by two men arising from a dispute over land. In an undated statement of his [brother] undated though claimed to be 2011, it is alleged that the two [men] ‘prevented us from going onwards and threatened to kill us and said that when your brother [the applicant] comes back from abroad, by quarrelling with you, our purpose is to stop your brother from going abroad and we will see him’.[6] This is the sole reference to the applicant in the entire materials provided in support of the claim. Given the finding that the applicant was not involved in the fight in any way, the Tribunal does not consider that there are any genuine reasons to threaten the applicant on his return to India. The Tribunal does not accept that the applicant was threatened in this manner.

    [6] DIBP Folio 56

15. The Tribunal asked where the applicant’s brother’s presently resided, the ones who were in the dispute. The applicant stated that they are at home and have not left. The Tribunal noted that in the time since the dispute his brothers had [children].  The Tribunal asked if they had been harmed or threatened on any occasion. The applicant stated that there was the one incident in 2011, which was the subject of the statement. They had not been harmed or threatened otherwise. The applicant stated that they would be harmed after the outcome of the criminal cases. They have not been harmed to date.

16. The Tribunal asked why the two men accused of assaulting the applicant’s brothers would not seek to harm them now, prior to the finalisation of the criminal case. Given that they were material witnesses to the case, it would seem likely that if there was to be any violence or threat of violence it would occur prior to the criminal proceedings being finalised, given that this would affect the criminal proceedings, including getting them to drop the charges.  The applicant stated that threatening and swearing was quite normal in India, and referenced the threat from 2011. The Tribunal noted that this had not stopped any criminal proceedings in this matter, and that the court dates are continuing.

17. The Tribunal noted that the applicant had returned to India in August 2010 for a month. The applicant disclosed that he had arrived in Delhi, then gone home to his village. The Tribunal expressed its considerable concern that the applicant would voluntarily return to his home village, if he genuinely feared harm from these individuals. The applicant stated he wanted to go and see his family. The applicant stated that he stayed at home during this time. The Tribunal considers that the applicant’s willingness to return home to his village provides strong evidence that he has limited concern for his safety in that region of India. Had the applicant a genuine fear of harm, the Tribunal considers that the applicant would not have returned at all, not giving any chance of being discovered and harmed by anyone.

18. The Tribunal noted the significant delay in the applicant lodging his protection visa. The applicant had arrived in Australia in August 2009, as a dependent on a student visa. As per the migration history in the delegate’s decision, the applicant applied for a 485 Graduate Skilled visa in September 2011, which was refused in November 2011. An associated Bridging Visa C was granted to the applicant which was valid until December 2011. The applicant used an agent to lodge this 485 visa application. The applicant was then unlawfully in Australia until he lodged his protection visa application in March 2014. The Tribunal asked why the applicant had not applied for a protection visa when he had an agent in 2011. The applicant stated that he was not aware of this visa, and that only people from Pakistan who came by boat were refugees. The applicant stated he had only seen his agent once and she had told him to lodge that 485 visa application. He only lodged his protection visa application when he was told he could.

19. The Tribunal does not accept this explanation. The applicant had migration advice that could have assisted him in lodging his protection visa at an early stage but did not do so. Hel lodged his protection visa after being in Australia for over 4 ½ years and after a considerable period of being unlawful, leaving him with limited visa options to seek to remain in Australia. The applicant is a capable individual, he stated that he had been employed as a [occupation] from 2000 to 2009, first employed by others then establishing his own business in this field. This shows he has a level of capability to understand and deal with more complex situations, such as considering his visa status in Australia, as well as providing him an opportunity to support himself. Had the applicant had a genuine fear of harm arising out of his circumstances, the Tribunal considers that the applicant would have sought to lodge a protection visa application much earlier, and the delay leads to a consideration that his claims in this regard are not genuine.   The Tribunal notes that it is legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347).

20. The Tribunal has considered the applicant’s circumstances. He has not been involved in any fight in India. The Tribunal accepts that a fight has occurred with his brothers being involved, and that this incident is being dealt with by the police and courts in due course. As evidenced by the documents provided by the applicant, all participants in the fight have been investigated, and bailed to appear before the court, no party, the applicant’s brothers or the opposing brothers, have been let out of the criminal proceedings by the police or the court. This would demonstrate that the authorities are taking appropriate action in light of the fight that took place in 2008. The Tribunal considers that the authorities have acted appropriately in the circumstances and that the lawful court processes will determine the outcome of the criminal matters in due course.  

21. His brothers, who were involved in the fight have remained in their home area without being harmed since the incident in 2008. They have continued to live their lives, working to support their growing families, though having to meet certain court requirements, without there being any repercussion from the men with whom they fought with. Given that the applicant’s brothers can carry on with their lives with limited restriction, aside from the court appearances, the Tribunal does not consider that the applicant, who had no involvement in the fight or any reason to be harmed because of the fight, has any risk of being harmed on return to his home village and re-establishing himself and his business, or look for work in a field of his interest. The Tribunal does not accept that the applicant would be harmed on return to his home village.

22. The Tribunal does not accept that the applicant, who was not a participant in the fight, would be threatened in any way because of his brother’s involvement in the fight. The applicant’s lack of concern with this incident is evident in both his return to his home village, with no issues arising from this visit; and in the significant delay in lodging the protection visa, lodged only when no other visa opportunity was available to him to remain in Australia.

23. The Tribunal further does not accept that the applicant would be harmed in the aftermath of any sentence recorded against men the applicant’s brothers’ fought. Having had no involvement in the fight, the Tribunal does not accept that any person would seek to harm the applicant simply because of his relation to his brothers. The Tribunal does not accept that any recrimination would be held against the application for any sentence handed down, given his non-involvement in the incident.

24. The Tribunal further does not accept that the applicant will himself become involved in any legal proceedings arising from the fight or the use of the land. Having not been in the fight itself, the applicant does not accept that the applicant will initiate any legal proceedings himself, or be brought into any legal proceedings by the other party or the police for the incident that occurred in 2008 which he had not been involved in. The applicant himself had limited use of the land, given he was involved in other interests of the family, running the [business]. The Tribunal does not accept that there is any belief that the applicant would imitate any legal proceedings so long after this incident, or be harmed for this reason.  The Tribunal finds that the applicant does not have a real risk of significant harm for this reason.

25. The Tribunal considers that the applicant does not have a real risk of significant harm arising from a fight between his brothers and two other men in December 2008. The Tribunal finds that the applicant does not have a real risk of significant harm arising from any sentencing outcome that may arise in the future from the incident in 2008.

26. The Tribunal is not satisfied 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 he will suffer significant harm.

27. 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).

28. 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).

29. 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

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

    Stuart Webb
    Member