1415416 (Refugee)

[2015] AATA 3516

1415416 (Refugee) [2015] AATA 3516 (6 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415416

COUNTRY OF REFERENCE:                  India

MEMBER:James Jolliffe

DATE:6  October 2015

PLACE OF DECISION:  Sydney

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

Statement made on 06 October 2015 at 9:07am

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] January 2014 and the delegate refused to grant the visa [in] August 2014.

3. The applicant appeared before the Tribunal on 13 August 2015 and 1 September 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Tamil Nadu) and English languages.

   Relevant 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.

   CLAIMS AND EVIDENCE

9. The Tribunal has before it the Departmental and Tribunal files relating to the applicant together with information from a range of sources.

10. The issue in this case is the applicant claims to fear harm if he returned to India on the basis of his political opinion and on the basis of his Muslim religion. He also claims to fear harm in [Country 1] in relation to a debt dispute.

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed

12. The applicant previously applied to the Refugee Review Tribunal in relation to an earlier protection visa application. The Tribunal in a decision dated 6 August 2009 affirmed the decision not to grant the applicant a protection visa. Section 48A of the Act imposes a bar on a noncitizen making a further application for a protection visa while in the migration zone in circumstances where the noncitizen 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 raised the same essential criterion for the grant of a protection visa. Applying the reasoning in the decision in SZGIZ the Tribunal finds that it does not have power to consider the refugee Convention criterion in s.36(2)(a), and has proceeded on the basis that he can only consider the applicant’s claims under the complementary protection provisions in s.36(2)(aa) of the Act

13. In his protection visa application the applicant claimed that he had been born [in] Tamil Nadu in India. He claims to speak Tamil as well as reading and writing English. He claimed to be of the Muslim faith. He claimed have arrived in Australia [in] February 2009 and that his Indian passport was issued [in] 2006. He claims to be married. He claims to have no right to enter or reside temporarily or permanently in any other country other than India. He claimed to have lived in [Country 1] between August 1997 and August 2007 and to have lived in India between August 2007 and January 2008. He claimed to have returned to [Country 1] and lived there between February 2008 and March 2009. He claimed to have attended school in [India]. He claimed to have been employed as [occupation] in [Country 1].

14. The applicant claimed that he left India because of violence perpetrated on him by Hindu extremists and because he had been falsely accused by the police. He provided a statement in support of his protection visa application. In that statement. He claimed that he had worked in [Country 1] for 13 years and had returned to India and opened a [business] in [Town 2]  in Tamil Nadu in October 2007. He claimed [in] December 2007 that [a] rally was held near his [work place] and that “RSS people” had begun throwing stones and bottles at people in the rally. He claimed that his [business] was damaged on that occasion. He claimed the police came and took him to the police station and “filed a case against me”. He claimed that he was told by the police that he was being charged because he had “supplied weapons, knife, bottles to those persons during the fight”. He claimed that he had financed the purchase of his [business] by selling assets owned by his wife. He claimed that he could not continue to run the [business] and because he was fearful about the prosecution case against him and that he might also lose his passport he decided to return to [Country 1 in] January 2008. He claimed when he returned to [Country 1], he discovered that the shop where he had previously worked had been demolished, but that he had tried to open a new shop and had arranged a loan of 50000 through “[Mr A]”. He claimed the loan had been arranged through a friend. He claimed that he was paying the money back, but was told in June by [Mr A] that he had only been paying interest on the loan. The applicant claimed that he had been paying back the principal and the interest and became involved in a dispute about that aspect with [Mr A]. He claimed that that [Mr A] threatened him with some “rowdies”. He claimed [Mr A] was the leader of the Hindu organisation involved in staging protests and rallies in [Country 1]. He claimed that person came to his “shop” with some other people in June and beat him and he was saved from further harm by the intervention of members of the public. He claimed several other people had been cheated by [Mr A] in a similar manner. The applicant claimed that he did not go to the police because he was afraid that the people who had attacked him with kill him. He claimed he only had a yearly visa to reside in [Country 1] He claimed that the friend who would arrange the loan for him had gone to India.

15. He claimed that if he returned to India “RSS people and police will catch” him. He claimed he could not remain in [Country 1] and run his business and that he had contacted his [relative] in [Country 2], and he was told to go to Australia and that this was arranged by a friend of his [relative] who lived in [Country 1] and that this was [in] December 2009 and that he had gone to [Country 2] to make those arrangements. He claimed that around this time he was threatened again by [Mr A] after he returned from [Country 2 to Country 1]. As a result of the threat the applicant claimed that he had gone to “[location]” and stayed [somewhere]. He claimed that [Mr A] had started looking for the applicant and that he had gone to the applicant’s shop and taken away things from the “shop” and threatened people in a neighbouring shop that he would kill the applicant even if the applicant paid him the money that was owed. He claims he received money from his [relative] and that he had gone to [Country 2 in] December 2009 and received money from his [relative]. He had returned to “[location]” and received a ticket to come to Australia [in] February 2009. He claimed that he had called India after he arrived in Australia and claimed the police “and RSS people” had beaten and taken his son. He claimed that he could not live in India because of the “RSS people” and could not live in [Country 1] because of [Mr A] “and his Hindu organisation”and that he will be killed if he went back to [Country 1]. He is seeking protection in Australia.

16. The applicant appeared before a Department delegate in relation to his protection visa application [in] May 2014. The applicant had also provided a number of documents to the Department in relation to his protection Visa application. Some English language translations were provided in relation to some documents. In summary those documents were a statement from the applicant about events he claimed he was not aware of at the time of the interview with the Department delegate. In summary that letter refers to one of the applicant son’s having been arrested and the applicant claims the police had done so on the basis of a “false case”. The applicant claimed that his son had joined the TMMK and become a student leader. He claimed his son had been trying to flee India but the police had blocked his son obtaining a passport and that his son was continuing to be harassed by the police. He claimed that there had been attempt on his son’s life and that damage had been done to his son’s car. The applicant also provided a letter which was claimed to be from the TMMK in India in support of the applicant’s claims regarding the applicant’s involvement with the police and the RSS and also in relation to the applicant’s son ([Mr B]) having a “false case” made against him by the police. The applicant also provided a first information report which in summary refers to the son ([Mr B]) and a claim that son was involved with another person in an attack on two men and also alleges that they also damaged the [property] of the complainant in the first information report. The applicant also provided an order from an Indian court in relation to that incident and granting bail to the applicant’s son (who is not named in the document) in relation to charges arising out of that incident. The applicant also provided a letter from the passport office in Tamil Nadu in relation to an application by the applicant’s son ([Mr B]) for a passport and a show cause letter had been sent to him in relation to the application. There was also a further letter addressed to that son from the regional passport office referring to, in summary, a criminal case against the son which was not finalised and which apparently had not been disclosed by the applicant’s son in his passport application. The son was invited to respond to the letter and that if he did not respond no passport would be issued to him. The applicant also provided a copy of a newspaper article which was said to relate to damage done to the applicant’s son’s ([Mr A]) [property] and that damage was reported to the police and that the TMMK had urged the police to take action in relation to that damage. The applicant had also provided a letter to the Department dated April 2009 from the TMMK in support of his first protection Visa application. In summary that letter referred to the applicant’s claims about the events that he said occurred in December 2007. The applicant had also sought Ministerial intervention in relation to his protection Visa application and the department file contains a submission dated October 2010 by the applicant’s then representative seeking ministerial intervention pursuant to section 417 of the Migration Act. The Minister declined to intervene in the applicant’s case for protection.

    TRIBUNAL HEARING

17. The applicant appeared before the Tribunal on 13 August 2015 and 1 September 2015 to give evidence and present arguments. The applicant produced to the Tribunal his Republic of India passport at the first hearing and his [Australian] identification card and at the second hearing produced a copy of a first information report in relation to a claimed incident in India involving one of his sons and his arrest by Indian authorities. The applicant also produced an affidavit from that son ( [Mr B]) in which his son said (in summary) that the first information report contained an incorrect name in describing or identifying that son. There was also a copy of a court order dated [in] March 2015 referring to “[name]” as one of the persons before the court and that bail was granted in relation to the offences with which that person had been charged. The Tribunal notes that the applicant in documents provided in support of his protection Visa application had referred to his sons as “ [Variation of Mr A’s name]” born on [date] and “[Variation of Mr B’s name]” born on [date].

18. The Tribunal informed the applicant that it was only considering his claims for protection under the Complementary protection provisions in the Migration Act and the reason for that decision. The applicant provided no comments in relation to the Tribunal’s decision on that issue. The applicant confirmed his personal details to the Tribunal. He said that a friend had helped him complete his protection Visa application. He said he did not know the last name of his friend but had worked with that person in Australia. He told the Tribunal that everything in his protection Visa application was true and correct. He said his wife was in India together with [their children]. He said he does not speak often to his family in India and he said that he was scared the family would get into trouble if the applicant contacted them. He referred to the problems that he said his son had with the police and the RSS. He said he had worked as [occupation] in India and in [Country 1] before he came to Australia. He said he had not been trained in the trade but had worked extensively as [occupation].

19. He told the Tribunal that the basis of his claim for protection in Australia was because he was a Muslim person who feared harm from Hindu extremists and including the RSS in India. He said the basis of his claim was his religion and because of his claimed membership of the TMMK ( Tamil Nadu Muslim Munnetra Kazhagam) a Muslim based movement and that he feared harm on the basis of political opinion as well if he returned to India. He said he feared harm if he returned to India from the RSS and the police and “other Hindu extremists’. He told the Tribunal that he was claiming protection on the basis of fearing to return to India and that he was not claiming protection on the basis of any fear in terms of [Country 1]. The applicant’s claims about difficulties that he had in [Country 1] are referred to elsewhere in these reasons. However he told the Tribunal that even though he was not seeking protection in terms of the incidents that he had claimed occurred in [Country 1] that he could not confirm that he was not at risk of harm in India from [Mr A] from whom he claimed to fear  harm when he had been in [Country 1]. He was not able to indicate to the Tribunal the basis for his claim that he could be in fear of harm in India from  [Mr A]. The applicant said he could not give a definite answer to the Tribunal as to why he would be at risk in India based on the claims of what he said had occurred in [Country 1]. He told the Tribunal that what happened in [Country 1] was a long time ago and said that he did not think it would be a problem for him now. The applicant confirmed that he had been in [Country 1] between 1997 and August 2007 and again between February 2008 and March 2009 before he came to Australia. He had opened his shop in India in October 2007 and he claimed the incident that he feared harm from occurred [in] December 2007.

20. The applicant was asked why he feared harm if he returned to India. He claimed that the Indian police were working with “them” (a reference to the  RSS and other extreme groups) and he said he was at risk because he was a Muslim person and had helped Muslim people. He claimed he gave donations to Muslim people in India. He claimed to be a current member of the TMMK even though he left India in February 2008. He had lived in [Country 1] for [years] before returning to India in August 2007 but said that he had returned to India from time to time during the period. The Tribunal asked the applicant who he was referring to when he had referred to “other Hindu extremists” in terms of his fears of harm. The Tribunal found the applicant was very vague in addressing the question and just referred to Hindu extremists in discussing his fears.

21. He told the Tribunal that he had opened his [business] in October 2007 in India and said that he had bought the business and leased the premises. He described the business as fairly small in terms of its physical dimensions. He said that on December [date], 2007 there had been a protest march by Muslim [people]. The Tribunal asked the applicant about the events on that day and his claims. Overall the Tribunal found it difficult to get clear details from the applicant about his involvement with the march by the Muslim people on that day. He told the Tribunal’s that the Muslim people had been protesting at the bus stop across the road from his [business]. He said that there had been about 50 to 100 Muslim people involved in the protest and they had been attacked by a number of RSS people. He said he was in his [business] but told the Tribunal that he would go out and look at what was happening and that before the attack he would go across the road and stand with the Muslim people at the bus stop. He told the Tribunal he was both involved in the protest but was also looking after his [business] at the same time.. The Tribunal had difficulty in accepting the applicant’s evidence that he was able to both participate in the protest across the road at the bus stop and at the same time be working in, and, looking after his [business]. As indicated the Tribunal found the applicant’s evidence about his participation in the events [in] December 2007 to be overall vague and lacking in detail. He said that the RSS people attacked the procession and started fighting and throwing stones. As indicated he said the [business] was very close to the bus stop where this incident occurred. He claimed that he was in his [business] when the fighting started. He said that the RSS people attacked the shop and he claimed they smashed his chairs and his showcase and then the police came and took him away. He claimed that the police charged him and accused him of providing bottles and knives to the protesters. He claims that everyone ran when the fighting started. He told the Tribunal that no other shops were attacked because they were shut up but he then claimed that some stones were thrown at other shops.

1. The Tribunal asked him if he had any documents as a result of his claims that he had been charged by the police. He said he left the documents in India and told the Tribunal that he had not tried to get the documents after he had left. He said he did not know where the documents were in India. The Tribunal referred to the department delegate’s record of decision (see pages 7 and 8 of the delegate’s record of decision) and noted that the delegate had raised with the applicant during the department interview issues about any documents to support his claims that he had been arrested and charged on that occasion. The Tribunal raised this issue on the basis that the question of documentation in support or in corroboration of his claims had been raised with him on previous occasions both by department delegate and during an earlier hearing before the Refugee Review Tribunal. In those circumstances the Tribunal was concerned that the applicant had made no attempt to obtain documents in India in support of his claims that he had been arrested and charged by the police. The Tribunal raised its concerns about the credibility of the applicant’s claims in this context. The applicant claimed that he had asked his wife in 2009 about trying to locate documents. He told the Tribunal his wife said that she did not know where the documents were on that occasion.

2. The Tribunal also raised the Refugee Review Tribunal decision of August 2009 and noted that in paragraph 86 of that decision the Tribunal had referred to the applicant’s evidence and claims about the events [in] December 2007. The Tribunal on that occasion had raised with the applicant its concern that letters had been provided from the TMMK dated April and July 2009 that indicated that the applicant had taken part in the procession on that occasion. The Tribunal in the current proceedings raised this aspect in terms of an apparent inconsistency in the applicant’s evidence that he was inside his shop when it was attacked and when the fighting started. He told the current Tribunal that he had been in his shop when it was attacked but had also been involved in the rally or protest

3. He confirmed to the Tribunal that he had been charged by the police. He said that six or seven police had come in a police jeep and that there had been many  police. He said he had been the only one who had been arrested at that time and he claimed he was arrested because he was in his shop. He claimed that when he was taken to the police station the police had “twisted” the case against him. He claimed the police accused him of having supplied bottles and other weapons and that he was accused of starting the fighting by supplying the weapons. He claimed he was beaten by the police and put in detention and he claimed he was kicked and beaten with police “sticks”. He claims he was injured and put in a cell. He told the tribunal that the fighting had occurred in the morning [in] December and had gone on for between 30 minutes to 1 hour. He claimed the police took about 20 minutes to arrive at his restaurant after the fighting started. He claims he was then in police custody until he was released on the night [in] December. The Tribunal asked him if he had been taken before a court as he claimed that the police had filed a case against him. He said he did go to court and that he got bail from the court. The Tribunal noted to the applicant that he had never raised this claim before about being taken to court and having been granted bail. He said he had not raised the issue before because of his “tension”. He told the Tribunal he had no documents about being taken to court and claimed that they had been lost. He told the Tribunal that a neighbour had gone surety for bail for him. He said he got released on bail and then had to report to the police station initially every day but then claimed that he ran away because more threats were being made to him. He claimed that the police had warned him that people were looking for him and that those people wanted to kill him. The Tribunal again noted that this claim had not been made before by the applicant. The applicant responded by saying that he had answered any questions that he had been asked. The Tribunal raised its concerns with the applicant’s credibility and said that if the claim about the threats had actually happened that it did not seem credible that the applicant would not have previously raised that claim in terms of his fears of harm if he returned to India. The Tribunal told the applicant that its concerns about his credibility meant that the Tribunal may not believe that he was telling the truth about his claims. The applicant said that he was telling the truth.

4. He told the Tribunal that he ran away when he was on bail because the police had threatened him and he was afraid that the police might hand him over to the RSS or that the police might beat him to death. The applicant indicated that he believed the RSS and the police worked together. The Tribunal asked the applicant what the police had warned him about and he said that he had been threatened about the incident that he said occurred [in] December 2007 and had been warned not to be involved with “our people”.

5. He told the Tribunal that he had run away to Chennai and went into hiding with the TMMK. He said he got a ticket to go to [Country 1] and left India [in] January 2008. He said he did not go back to court after he was released on bail in India. He told the Tribunal that he thought the surety for his bail would be in trouble in India as a result of him having not answered his bail. He told the Tribunal that he did not know what happened to the charges against him in India and claimed that police in India were looking for him. He said that the charges related to police claims that he had instigated the fighting and supplied weapons.

6. He claimed that the RSS people had attacked him in his [workplace] [in] December 2007 because he is a Muslim and because he was in “the party” (a reference to the TMMK).

7. He told the Tribunal that he had no difficulty travelling to [Country 1] from India and had done so on his Indian passport. He was asked if he  had any documents about his [business] in India but he said that all the documents had gone after the fighting had occurred. He claimed the documents were in his [business] and had “gone”. He was asked if he was hurt during the attack by the RSS people on the restaurant. The Tribunal noted that the TMMK letter [in] April 2009 referred to the applicant having been assaulted “grievously” but the applicant told the Tribunal that he had not been hurt because he said he hid on that occasion. He told the Tribunal that he had been hurt by the police when he was arrested. He said that he had seen a doctor after he was released and obtained tablets from a pharmacy but that he had no documents to support his claim that he had suffered injuries. The Tribunal raised its concern that there were no documents in relation to any injuries given the claim in the TMMK letter that he had been assaulted "grievously" during the attack on his [business] but he claimed as indicated that he had not been hurt on that occasion.

8. The Tribunal noted that the TMMK letter of April 2009 indicated that the applicant “had taken part in the procession” in December 2007 but the applicant’s evidence was that he had walked across the road on a number of occasions from his restaurant to the bus stop to be with the protesters. The applicant had not claimed that he had taken part in a procession on that occasion. The applicant then told the Tribunal that he had taken part in a march. The Tribunal raised its concerns with the applicant as to whether he was telling the truth about the  incident and also referred to the applicant’s vague and to an extent inconsistent evidence overall about his claims in relation to this incident. The Tribunal indicated to the applicant that it had concerns he was “reconstructing” his evidence and claims in response to further questioning by the Tribunal.

9. The Tribunal asked the applicant about his involvement with the TMMK. He claimed that he helped people who were ill and that he helped people with money and provided assistance to the best of his ability. He claimed that he tried to get medical and ambulance treatment for people. He told the Tribunal that he also helped people to get ration cards. The Tribunal believed that the applicant was very general in his evidence in discussing his involvement with the TMMK. The applicant did not provide any reference to specific instances of his claimed assistance. He told the Tribunal he was not an office holder with the TMMK and he did not occupy any leadership role with that organisation. He told the Tribunal that he had become involved as a member of the TMMK in August 2007 after returning from [Country 1]. He said he had been a member of that organisation until early December 2012 but had earlier told the Tribunal that he was still a member. He told the Tribunal that he had never attended any meetings of the TMMK. Apart from the letters that had been provided to the Tribunal and the Department from the TMMK the applicant had no other documents from that organisation.

10. He was asked about his claims about his son ( [Mr A]) and the Tribunal referred to the letter [in] May 2014 to the Department in which the applicant claimed in part that his son had been arrested by the police on a false case. The Tribunal also referred to the police first information report regarding that son and a  claim that [property] had been damaged and referred to an incident in September 2011. The applicant had claimed in his statement in support of his protection Visa application that his son ([Variation of Mr B’s name]) had been taken by the police and the RSS people and beaten after the applicant had arrived in Australia in February 2009. The Tribunal found the applicant’s evidence about these claims involving his sons to be very confusing. The applicant said that there were a number of incidents involving one of his sons. He said that the first incident that occurred in early 2009 was when his son was taken and beaten by the police and questioned about the applicant. He said his son had not been charged on that occasion. The applicant, as indicated, in his statement in support of his protection Visa application had referred to his son “[Variation of Mr B’s name]” on that occasion. The Tribunal notes that this appears to be a reference to”[Mr B]” the applicant’s [younger son]. The applicant’s other son is “[Mr A]” who was born in [an earlier year]. The details for both sons is provided in the documentation filed by the applicant in support of his protection Visa application in January 2014.

11. The documents provided by the applicant that have been referred to elsewhere in these reasons indicate that “[variation of Mr B’s name]” was charged in relation to an incident that was said to have occurred in February 2015. The applicant claims that this documentation relates to his son ”[Mr B]”. The Tribunal notes variations in the spellings of the name of this person in terms of documentation that has been provided to the Tribunal and to the Department. The Tribunal indicated that it found the applicant’s claims and evidence about the sons to be confusing and in particular the confused and inconsistent spelling of the applicant’s youngest son’s name.

12. The applicant claimed that nothing had happened to his wife and children in 2008 in India.

13. The Tribunal sought to clarify the claims by the applicant about his sons. He claimed that his eldest son ([Mr A]) had been charged in relation to 2 incidents and that his youngest son was charged in relation to one incident and that the charges against the eldest son were still pending and that he was on bail. The applicant claimed that the charges in relation to the younger son had been concluded but then told the Tribunal that they were still pending and that the proceedings had not been concluded. The Tribunal told the applicant that it was concerned about the documentation that had been provided in relation to the applicant’s youngest son given the significant variations in the name in the documentation provided to the Tribunal. The Tribunal told the applicant it had difficulty in accepting the applicant’s claims and the documentation in relation to his youngest son. The applicant claimed that his son had given the wrong name when he had been arrested and detained. The applicant had claimed that his sons were being targeted because of their connection to him and that they were being falsely accused of committing offences. In those circumstances the Tribunal had difficulty in understanding how the police would not have used the applicant’s youngest son’s correct name given the applicant’s claim that his sons were known to the police because of their connection to the applicant. As indicated the Tribunal found the applicant’s evidence surrounding his claims around his sons being targeted and charged with “false” charges to be confusing and an extent inconsistent given the documentation that had been provided by the applicant.

14. The Tribunal raised the Refugee Review Tribunal decision of August 2009 and in particular paragraph 98 of that decision that refers to “sporadic instances of Hindu Muslim communal violence in India but none of those instances were in Tamil Nadu----- the independent evidence does not suggest that the police act in coordination with the RSS or its leaders. I do not accept that there are numerous incidents between the TMMK and the RSS that are not reported”. The Tribunal raised this issue in the context that the applicant had not referred to any publicity surrounding his claims of the fighting that had occurred [in] December 2007. The applicant told the Tribunal that he could not point to any media or publicity in support of his claims that incident occurred.

15. The applicant told the Tribunal he had not had previous difficulties with the RSS or the police in India and the only incident involving him had been [in] December 2007. He did claim there had been difficulties for his family after he left India. The applicant claimed that his wife and eldest son had been threatened in January 2008 by the RSS. He claimed that his wife was asked “is husband here and if you lie you will get into trouble”. The current Tribunal noted that the applicant had given inconsistent evidence about his claims in relation to threats to his family since he had left India. The Tribunal noted paragraph 54 of the RRT reasons for decision of August 2009 which had referred to the applicant’s inconsistent claims about some aspects of his evidence and claims in relation to threats to his family. The applicant claimed that there had been two incidents and that one had involved a verbal threat and the other had involved his son having been detained and beaten. The applicant’s claim that a verbal threat had been made to his wife and one of his sons in January 2008 was inconsistent with his claim that nothing had happened to his wife or children in 2008.

16. The applicant did not refer to any specific incidents involving his religious beliefs or opinions or practices other than the claimed incident [in] December 2007.

17. The Tribunal raised its concerns about the applicant’s claims that the police would be looking for him and that the police and the RSS would be working together against the applicant. The Tribunal told the applicant that the evidence he had given about his role and involvement with the TMMK did not suggest to the Tribunal that he would be a person of interest to the RSS if he returned to India. The Tribunal referred to available country information in terms of information contained in a background paper on India relating to political parties which had been issued in August 2013 and which was available to the Tribunal. That background paper referred to the formation of the BJP (Bharatiya Janata Party) in India and noted that the BJP was formed in 1980 as a result of a split caused by the decision of the “Janata Front” to ban leaders from participating in the activities of the Rashtriya Swayamsevak Sangh (RSS) which was described as a “secretive paramilitary Hindu communal group generally regarded as the BJP’s parent organisation. Like the RSS, the BJP’s core philosophy is Hindutva (HIndu nationalism) however in order to gain wider political acceptance, the BJP has played down its Hindutva roots”.  The DFAT country report for India dated July 2015 provided information relevant to the applicant’s claims. The report indicated that the BJP had obtained a parliamentary majority in the 2014 general election in India and had formed the National government with its National Democratic alliance partners. The country report also referred to issues involving Muslim people in India. The report referred to more recent instances of communal tension involving Muslims in India. The department assessment is that there is a low level of official discrimination against Muslims in India particularly in relation to police and security forces but there has been a history of official violence involving Muslims in  Jammu and Kasmir. The Tribunal also referred to a country advice document dated September 2007 (IND32355) which indicated there were no recent reports that had been located that mentioned major violent conflicts between the TMMK and the RSS in Tamil  Nadu but did refer to some reports involving a March 2007 incident where a TMMK District president had been attacked by a three-member gang who were suspected to be Hindu activists (The Hindu, 3 March 2007) and also referred to a November 2006 news report which described the TMMK disrupting a Hindu religious procession( Hindustan Times, 4 November 2006) The Tribunal’s overall assessment of the country information did not suggest that there were  present difficulties for Muslim people in Tamil Nadu in terms of conflict between TMMK and RSS.

18. The applicant told the Tribunal that he had occasionally spoken to TMMK people since he had been in Australia but he had not provided any assistance to that organisation since he had been in Australia.

19. The Tribunal raised with the applicant the department delegate’s concerns about the applicant’s case and that the department delegate did not accept a number of claims of the applicant (see page 11 of the delegate’s record of decision). The Tribunal noted that the delegate did not accept that the applicant was a credible witness. The applicant asked the Tribunal to believe him and his claims and he told the Tribunal that he was telling the truth. The Tribunal also raised with the applicant the findings of the Refugee Review Tribunal (RRT) in its decision of August 2009. The Tribunal raised with the applicant the findings of the RRT on pages 18 and 19 of that decision. That included the inconsistency between the applicant’s evidence to the RRT and the letters received from the TMMK regarding the applicant’s claims about where he was located when the RSS attacked his shop and also whether he had participated in the procession on that occasion. The applicant, in response, told the current Tribunal that he was telling the truth and said that he was afraid to return to India.

20. The Tribunal asked the applicant why he could not obtain state protection in India if he feared harm. He said that the police would arrest him(because of the December 2007 incident). He told the Tribunal that he could not relocate in India because he claimed that the RSS was connected to the BJP(the now governing party in India) and in essence and by implication claimed he would be at risk anywhere in India. The applicant claimed that his [sons] had been harassed and harmed by the police because of the applicant . He told the Tribunal during the first hearing that his youngest son had also had difficulties in India and the Tribunal noted that this claim had not been made before. The applicant said that the difficulties in relation to his youngest son had occurred after the interview with the department delegate.

1. He told the Tribunal that he did not wish to return to India and wanted to bring his wife and children to Australia. He said if he had to return to India he would return to Chennai and claimed that he would have to go into hiding because of the incident that occurred in December 2007. The applicant raised no further issues with the Tribunal and said that he had told everything about his claims and that he had told the truth and that he could not return to India because of the threat to his life

2. The Tribunal raised with the applicant country information that it believed was relevant to the applicant’s claims. The Tribunal had already referred during the hearing to some aspects of country information in the context of the applicant’s claims and that  information is referred to elsewhere in these reasons. The Tribunal raised information contained in the DFAT country report for India dated July 2015. The Tribunal noted that the department assessment was that there was a low level of official discrimination in India on the basis of ethnic extraction and language and that was as the result of “protections” within the Indian Constitution. The report noted that the majority of cases of communal violence in India since petition had involved Hindu and Muslim communities but that the overall department assessment was that there was overall a low level of official discrimination on the basis of religion. The Tribunal noted that the report in discussing Muslim people in India did not refer to recent reports of clashes in Tamil Nadu between Muslim and non-Muslim groups. The Tribunal noted that the primary responsibility for law and order in India under the constitutional arrangements rested with India’s states and union territories. The report noted that allegations of human rights abuses carried out by police in India are frequent but there were mechanisms in place to deal with complaints of misconduct against police. The Tribunal noted that the report indicated that internal relocation was available within India subject to reasonable restrictions in relation to places where there may be  unrest or there are security issues. The report also noted that the department was not aware of any credible reports of mistreatment of returnees by Indian authorities including in relation to failed asylum seekers. The Tribunal notes that the report also indicated that a February 2015 report by the UK Home Office indicated that the possibility of the police or any person or body being able to locate a person who had fled to another state or territory in India was remote. The Tribunal also noted the report indicated that document fraud was a significant industry in India. The Tribunal referred to the background paper on India in terms of political parties that has been referred to elsewhere in these reasons in terms of the RSS and its connection with the BJP and that the BJP had effectively banned its leaders from participating in the activities of the RSS. The Tribunal noted that there had been no media coverage or reports of the events [in] December 2007 that the applicant claimed had occurred. The applicant responded to the country information by asking the Tribunal to believe him in relation to his claims.

3. The Tribunal raised information pursuant to section 424AA of the Act  that it had that would be a reason or part of a reason for affirming the decision under review. That information was information in the Refugee Review Tribunal decision of August 2009 and related to a number of issues that had been raised with the applicant during the current Tribunal hearing in terms of his evidence about his claims. That information included that the RRT (see paragraph 72) had been unable to locate any recent reports mentioning major violent conflicts between the TMMK and RSS in Tamil Nadu. The information included that the RRT had not accepted that the applicant was a witness of truth and that the RRT had also referred to a number of inconsistencies in the applicant’s evidence. The RRT also referred to independent evidence that indicated there had been sporadic instances of Hindu Muslim communal violence in India but that none of those instances were in Tamil Nadu and the RRT also indicated that the independent evidence did not support the applicant’s claims that the Indian police acted in coordination with the RSS or its leaders. The Tribunal also raised information in the department delegate’s record of decision in relation to the applicant. As indicated elsewhere in these reasons the Tribunal had raised with the applicant during the Tribunal hearing the delegate’s findings and invited his comments. The Tribunal said that the information contained in the RRT’s statement of decision and in the delegate’s record of decision were relevant to the current Tribunal’s assessment of the applicant’s claims and the applicant’s evidence. The Tribunal noted that inconsistencies in the applicant’s evidence about his claims in terms of the information referred to and his evidence to the Tribunal could cause the Tribunal to not accept that the applicant was telling the truth in relation to his claims as well as affect the Tribunal’s assessment of the applicant’s credibility. In those circumstances the Tribunal may not believe the applicant in relation to his claims. The applicant was invited to comment or respond to the information raised by the Tribunal and he said that he had nothing specific to say and said that he had told the truth to the Tribunal. The Tribunal allowed the applicant two weeks to provide any further comments or responses to the information or to provide any further information to the Tribunal in relation to his claims.

4. The Tribunal referred to the evidence and documentation provided by the applicant in relation to the charges that had been apparently brought against his sons in India. The Tribunal noted that according to the applicant his sons were being harassed by the police because of the applicant’s activities. The Tribunal noted that his youngest son was already known to the police, on the basis of the applicant’s claims, and that the Tribunal had difficulty in accepting in those circumstances that the younger son would be able to provide a false  name to the police. The applicant said that his son had been beaten by the police and then claimed that other people had told the police about his son’s identity. That claim seemed inconsistent to the applicant’s earlier claim that his youngest son was known to the police and was being harassed by the police because of the applicant. The Tribunal told the applicant that it was concerned about the inconsistency in the applicant’s claims about his youngest son and had difficulty in accepting the applicant’s claims in those circumstances. The applicant said that he did not lie about the incidents involving his son.

5. The Tribunal raised with the applicant concerns that it had about the applicant’s claims and the credibility of his claims and his evidence. The Tribunal noted its concerns about the applicant’s often vague and inconsistent evidence about aspects of his claims .The Tribunal noted the applicant had been in [Country 1] for a long time before returning briefly to India in 2007. He had not been involved in Indian politics before returning to India in August 2007. He had only been in his [business] for two months before the claimed incident occurred in December 2007. The country information referred to by the Tribunal did not indicate that there had been problems in Tamil Nadu and in those circumstances the applicant’s claims about the incident with the RSS in December 2007 did not seem credible. The Tribunal, during the hearing, had noted that the Department assessment was that there was a low level of official discrimination against Muslims in India particularly in relation to police and security forces interaction with the Muslim community but the report also noted that there was a moderate level of societal discrimination against Muslims across India. The Tribunal noted there had been no media reports of any incidents in relation to the applicant’s locality in India in December 2007. The Tribunal noted that the applicant had provided no documentation to support his claims in relation to being arrested and detained and charged by the police. He had made no efforts to obtain any documents from India in relation to that aspect other than to speak to his wife. The Tribunal noted that the applicant had left India on his own passport to travel to [Country 1] in January 2008 and had not encountered any difficulties despite claiming that he was on bail at that stage because of the December 2007 incident. The Tribunal noted the inconsistent evidence provided by the applicant about his involvement in the activities in December 2007 in terms of both being in his shop and being involved in the protest across the road at the bus stop. The Tribunal noted its concerns about inconsistencies and vague evidence by the applicant surrounding the applicant’s claims about the circumstances in which his sons had been charged by police in India. The Tribunal noted that the documents provided by the applicant suggested that particular offences had been committed by his sons and that was the basis for his sons being charged. The Tribunal noted that the applicant had claimed he was at threat from “Hindu extremists” but had not been able to identify any other group other than the RSS. The Tribunal noted that until the Tribunal hearing the applicant had not claimed that he had been placed on bail or taken before a court before. The Tribunal noted the issues raised in the RRT  decision and in the delegates record of reasons (and which have been referred to elsewhere in these reasons). The Tribunal told the applicant that his profile based on his activities with the TMMK did not indicate to the Tribunal that he would be attacked or be a target of the RSS. The Tribunal noted that he had never attended any TMMK meetings since he had joined the organisation after returning from [Country 1] in 2007.

6. As indicated the Tribunal allowed the applicant two weeks from the Tribunal hearing (until 15 September 2015) to provide any further comments or responses or any additional information and including documentation to the Tribunal.

7. After the Tribunal hearing the Tribunal received a copy of a letter dated [in] September 2015 from a person described as [an official in Town 2]. The short letter, in summary, referred to the applicant having come to Australia and said that there had been “serious religious ( HINDU MUNNANI & R.S.S.) Distormony in [Town 2] area for about a year and there is continuous violation at law and order due to religious ( Hindu Munnani an RSS) disputes and we apprehend that if [the applicant] is allowed to travel to India and visit his native town, there is imminent danger to his life and property”. The letter invites Australian authorities “to kindly extend the required help and assistant” to the applicant. No further comments or responses were provided with the letter to the Tribunal

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. On the basis of the materials and information provided to the Department and to the Tribunal the Tribunal accepts that the applicant is an Indian citizen and that his identity is as he claims it to be. The Tribunal accepts on the basis of the information and materials provided that the applicant does not have a right to enter or reside temporarily or permanently in any other country apart from India. The Tribunal accepts that India is the applicant’s receiving country for complementary protection purposes.

9. The Tribunal is not satisfied on the basis of the evidence and materials before it that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned from Australia to India that the applicant faces a real risk of significant harm. The Tribunal is also not satisfied as to the applicant’s credibility in relation to some aspects of his evidence and to some aspects of his claims

10. The applicant claimed to fear harm if he returned  to India on the basis that he was at risk because of his Muslim religion and because of his political opinion. In essence both these claims related to the applicant’s claims that he was a member of the TMMK, a Muslim based movement in India. His claims to fear harm were essentially based around an incident that he claimed occurred [in] December 2007. He had raised previously a claim to fear harm on the basis of claims relating to his living and working in [Country 1] however he eventually told the Tribunal that he did not believe that he was at risk of harm on the basis of those events if he returned to India. He claimed to fear harm if he returned to India from the Indian police and members of the RSS and other Hindu extremists. He did not identify the other Hindu extremists to the Tribunal.

11. The applicant, in summary, claimed as a result of the incident [in] December 2007 that his [business] had been damaged by RSS members. He claimed he was not injured on that occasion because he hid. He claimed that he was subsequently arrested and charged by the police with having been involved in the riot and in providing weapons to assist the rioters on that occasion. He claimed that he was taken before a court and granted bail. He claimed he was injured by the police after he been arrested. He claimed he went into hiding after he was granted bail and then fled India on his own passport and returned to [Country 1] in early January 2008. He claimed his wife and one son had been verbally threatened by the RSS in January 2008 in relation to the applicant’s whereabouts. He claimed one son had been subsequently beaten by the RSS in relation to the applicant’s whereabouts in the applicant’s activities. He claimed that both sons had false criminal  cases brought against them by the police because of the applicant and he claimed his sons had been harassed by the police because of the applicant.

12. The Tribunal has considered the applicant’s evidence and his claims and has also considered its assessment of the applicant’s credibility in relation to his claims and his evidence. The Tribunal has referred elsewhere in these reasons to its concerns about the applicant’s often vague and inconsistent evidence in relation to some aspects of his claims. Those issues include the difficulties the Tribunal faced in getting the applicant to clarify his claim as to whether he feared harm because of the claimed incidents in [Country 1] as well as trying to get the applicant to clarify which other Hindu extremist groups he claimed to fear harm from. The Tribunal also had difficulty in relation to the applicant’s claims about his involvement in the protest activities [in] December 2007 and his claim that he was both participating in the protest and conducting his [business] at the same time. The Tribunal also had difficulty in getting the applicant to clarify his evidence and his claims about the claimed harassment of his sons by the police which he claimed was occurring because of him. The Tribunal found the applicant’s evidence about the claims regarding his sons to be vague and to some extent inconsistent. He made the claim that his youngest son was facing difficulties with the police during the first Tribunal hearing. The documents that have been supplied to the Tribunal in relation to the police charges against his two sons are suggestive of offences having been committed by the sons but the applicant claims that the police have produced false cases against his sons because of the applicant. The evidence of the applicant in relation to the charges against his two sons and the Tribunal’s concerns about those issues have been referred to elsewhere in these reasons. As indicated the Tribunal found the applicant to be on occasion very vague and inconsistent in his evidence in relation to his claims. He did not claim to the Tribunal that there had been any instances regarding his political opinion or his religious practices where he had faced difficulties in India apart from the claimed events in December 2007. The Tribunal was also concerned that the applicant raised a number of claims for the first time before the Tribunal and these included his claims that he had been taken before a court and placed on bail as a result of being charged because of the events [in] December 2007. He was unable to produce any documents to the Tribunal in relation to the claimed charges or the bail. He was also unable to indicate to the Tribunal any media reports or publicity about the claimed events [in] December 2007. The Tribunal notes the applicant was able to leave India on his own passport in January 2008 without difficulty at a time when he claimed to be in hiding and on bail for the offences arising out of the December 2007.

13. The Tribunal found the applicant to be very vague and very general in referring to his activities with the TMMK. That evidence has been referred to elsewhere in these reasons. The Tribunal’s overall assessment of the country information that has been referred to in these reasons does not support the applicant’s claims that an incident occurred [in] December 2007 involving the TMMK and the RSS. The Tribunal notes that the applicant had told the Tribunal that his [business] was very small but he claimed to the Tribunal that he had not been injured when the shop had been attacked because he was able to hide. The Tribunal does not find it credible that the applicant would have been able to hide in a small shop in the circumstances where the shop was being attacked by a mob who he claimed did significant damage to the shop. The Tribunal does not find it credible, having regard to the totality of the evidence, that the applicant would have been singled out to be arrested by the police and accused of having instigated the riot and be charged with supplying weapons to the rioters based on his evidence to the Tribunal about his involvement with the TMMK and his claim that his was the only shop that was actually attacked and damaged. He claimed some other shops had stones thrown at them but that they were closed when the riot had occurred. Other than the applicant claiming that the police had accused him of supplying bottles and other weapons the applicant was unable to explain to the Tribunal why the police would have arrested him having regard to his evidence about the events on that day. He claimed he was arrested and detained and questioned by the police and mistreated by the police. He claimed after he went to court and was granted bail he went into hiding before returning to [Country 1] in January 2008. He claimed, as indicated, that his family and in particular his two sons had faced difficulty in India as a result of harassment by the police because of the applicant. That aspect has been referred to elsewhere in these reasons. He claimed that the Indian police and the RSS were working together even though as indicated the country information that has been referred to does not  support that claim.

14. The Tribunal after having considered the applicant’s evidence and his claims and considered the totality of the evidence and information before the Tribunal does not accept that the applicant is a credible witness.

15. The Tribunal after having considered the totality of the evidence and the applicant’s claims does not accept that the applicant was a member of the TMMK as he claimed and that he joined that organisation after returning to India from [Country 1] in 2007. The Tribunal has considered the documents that have been provided to the Department and the Tribunal which indicate or suggest that the applicant was a member of the TMMK. The Tribunal raised with the applicant during the hearing and referred to the prevalence of document fraud in India as reported in the DFAT country report for India of July 2015. The Tribunal notes that the documents purporting to be from the TMMK that were provided in 2009 referred to the applicant having been “greviously” assaulted in the events [in] December 2007 however the applicant claimed that he hid on that occasion and had not been harmed. The documents suggest that the applicant was a active member of the organisation but the applicant told the Tribunal that he had never attended a meeting of the TMMK. It is unclear who the authors of those letters are or their role in the TMMK . A further undated letter purporting to come from the TMMK was provided by the applicant to the Department after the interview with the Department delegate. That letter refers to the applicant’s claims about the events [in] December 2007 and referred to the applicant's son  [Mr A]. It is unclear who the author of that letter is or their role in the TM MK. The Tribunal having regard to the totality of the evidence together with its concerns about the applicant’s credibility and its concerns about the country information indicating the prevalence of forged documents in India does not place any evidentiary weight on these documents. The Tribunal has also considered the document provided to the Tribunal after the second hearing but the Tribunal because of its assessment of the totality of the applicant’s evidence and its concerns about the applicant’s credibility does not find that document causes the Tribunal to alter its views in relation to the applicant’s claims.

1. The Tribunal after having considered the totality of the evidence and its assessment of the applicant’s credibility does not accept that the applicant was involved in any protest or procession organised by the TMMK [in] December 2007 as he claimed or that the RSS attacked that protest/procession on that occasion. The Tribunal also does not accept that the applicant's was  attacked by the RSS on that occasion. The Tribunal does not accept having regard to the totality of the evidence that the applicant was arrested and charged by the police in relation to the claimed incident [in] December 2007 and that he was then taken before a court and granted bail as he claimed. The applicant’s evidence about those issues has been referred to elsewhere in these reasons. The Tribunal having regard to the totality of the evidence does not accept that the applicant was harmed or mistreated by the police [in] December 2007 as he claimed. The applicant’s evidence about that issue has been referred to elsewhere in these reasons. The Tribunal also does not accept the applicant’s claims that he was warned and threatened by the police in India after he was arrested and charged and bailed. The applicant’s evidence about that issue has been referred to elsewhere in these reasons. The applicant has produced no documentation to support his claims in relation to a number of these issues and has also been unable to indicate any media or publicity surrounding the events he claims occurred [in] December 2007 in [Town 2] in Tamil Nadu. The Tribunal notes that the country information that has been referred to elsewhere in these reasons does not support the applicant’s claims in relation to the claimed events on that occasion. The Tribunal has considered the applicant’s claims that since he has been in Australia his family has been threatened by the RSS and his two sons harassed by the police and had false charges brought against them. The applicant claimed in his statement in support of his protection Visa application that his son “[variation of Mr B’s name]” had been taken by the police and the RSS people and beaten. He had claimed in his evidence that his eldest son [Mr A] was taken by the police and the RSS. That evidence is not consistent with the applicant’s claims in his statement. As indicated elsewhere in these reasons the applicant’s evidence surrounding the claims about the events involving his two sons was both vague and inconsistent. The Tribunal’s concerns about the applicant’s claims and his evidence in relation to the issues affecting his sons have also been referred to elsewhere in these reasons. The Tribunal after having considered the totality of the evidence surrounding the applicant’s claims around his sons does not accept that the applicant sons have been harassed by the  RSS or the police or placed on false charges by the police as a result of any activities by the applicant or because of any connection to the applicant. The Tribunal has considered the documents that have been provided in relation to the applicant’s sons in terms of charges and investigations and court proceedings. The Tribunal after having considered the totality of the evidence and the documents is prepared to accept that the applicant sons are facing court proceedings in India. However the Tribunal does not accept that those proceedings are “false” proceedings (in the sense claimed by the applicant that the proceedings have no legitimate basis).The evidence and the documents suggest that the proceedings have been commenced on the basis of legitimate concerns and not for any discriminatory reason .The Tribunal also does not accept the applicant’s claims that his wife was threatened by the RSS as he claimed.

2. The Tribunal after considering the totality of the evidence does not accept the applicant’s claims that the applicant is of any interest to the RSS or to any other Hindu militant organisation or the Indian police. The Tribunal notes that the applicant eventually told the Tribunal that he did not believe that he was at any risk of harm in India on the basis of his claims in relation to incidents that he said occurred in [Country 1] and that have been referred to elsewhere in these reasons.

3. The Tribunal does not accept and the evidence does not support that the applicant faces a real risk of significant harm on the basis of his Muslim religion or on the basis of his political opinion should he return to India. The applicant did not claim to have faced harm because of his religion or his political opinion in India apart from the claimed December 2007 incident and as indicated the Tribunal does not accept that claim. The Tribunal has considered the relevant country information referred to elsewhere in these reasons. The Tribunal accepts that information. However the Tribunal does not accept that any discrimination the applicant might face in the future in India because of his religion would constitute significant harm in terms of s.36(2A) and having regard to the definitions within s.5(1) of the Migration Act. The country information (the DFAT country report for India) refers to low-level official discrimination in relation to Muslim people in terms of their dealings with police and security forces in India and also refers to a moderate level of societal discrimination against Muslim people in India which can be partly attributed to that community’s relatively low socio-economic situation. The applicant did not claim to have ever faced difficulties in India previously before the claimed incident in December 2007. The Tribunal notes the applicant claimed to have worked in and conducted businesses in [Country 1] and India and that evidence is relevant to socio-economic considerations in terms of assessing future issues in relation to the applicant. The applicant claimed to fear harm from the RSS and the police (who he claimed work together) and other unnamed Hindu extremists. The Tribunal has not accepted the applicant’s claims in relation to these issues. The Tribunal does not accept, given the overall evidence and country information, there are substantial grounds for believing that any discrimination the applicant might face in India in the future because of his religion or his political opinion would constitute a real risk of significant harm within the meaning of the Migration Act. The Tribunal is not aware of any other reason or claims by the applicant that he would face a real risk significant harm if he returned to India.

4. The Tribunal has considered the applicant’s claims both individually and cumulatively. The Tribunal has considered the applicant’s claims in terms of s.36(2)(aa) of the Act. The Tribunal has considered the evidence which has been discussed and the relevant country information which has been discussed together with the Tribunal’s assessment of the applicant’s credibility. The Tribunal does not accept after having considered those issues that there are substantial grounds for believing that is a necessary and foreseeable consequence of the applicant being removed from Australia to India that there is a real risk that the applicant will suffer significant harm on the basis of his claims.

   Overall Summary

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

6. 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

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

   James Jolliffe
   Member