1418598 (Refugee)

[2015] AATA 3323

1418598 (Refugee) [2015] AATA 3323 (21 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1418598

COUNTRY OF REFERENCE:                  India

MEMBER:Sydelle Muling

DATE:21 August 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 21 August 2015 at 10:41am

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of India, applied for the visas [in] December 2013 and the delegate refused to grant the visas [in] October 2014.

3. The applicants appeared before the Tribunal on 6 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. Only the first named applicant has made specific claims under the Refugees Convention and Complementary Protection, his wife and child relying on their membership of his family. For convenience, therefore, the Tribunal will refer to the first named applicant as the applicant.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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.

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. 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’).

9. 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.

10. The applicant claims to be a citizen of India who was born in [in a village] in district Ludhiana, Punjab in India on [date].  He presented his claims in his protection visa application [in] December 2013 (folios 2 to 37 of the Department [File]), a Departmental interview he attended [in] May 2014 (folio 119 of the Department [File]) and at his Tribunal hearing on 6 August 2015.

11. The applicant claimed in his protection visa application that he was tortured by the Punjab police on the behest of other villagers on the basis of suspicion and old rivalry. He claimed that when the police found the dead body of [Mr A], son of [Mr B] in a water drain [in] May 2003, on the basis of the longstanding rivalry between the family of the deceased and the applicant’s family, the deceased’s family falsely framed him for murder. Although he was not named in the First Information Report (FIR), the applicant claimed he was picked up by the Punjab police [in] May 2003 from his house, along with his friends, [Mr C] and [Mr D]. They were kept in various police stations of [Town 1] for three months during which time they were severely beaten by CIA staff and were not given any food. They were taken to hospital a few times in a state of unconsciousness due to the injuries and beatings. The applicant claimed their parents could not do anything. The police demanded two lakhs each to release them. He claimed the police knew that he and his friends were innocent but the opposing family wanted to frame them to teach them a lesson. The applicant claimed they may have paid money to the police to harass them or used their influence to frame them as [Mr B] was a Shiromani Akali Dal activist. The applicant claimed that his father paid two lakh to the police inspector who released him along with his friends.

12. The applicant claimed that the matter got silent for about 5 years. They were occasionally called to the police station in [Town 1]. [In] April 2009 the police raided his home and arrested him on the same account. He was taken to the police station where he was beaten mercilessly on the behest of [Mr B] and his ally [Mr E]. He was beaten for several days in their presence and was later hospitalised. He claimed before this he was falsely framed in another criminal case and beaten and humiliated but was “compromised” on request of the elders of the village. The applicant claimed soon after the incident in 2009 when he was picked up by the police, his friend [Mr D] was picked up by [Town 1] police in June 2009, tortured and killed in police custody. He claimed he was afraid and planned for his family to flee abroad to save his life as his enemies threatened to shoot him in daylight in the village. The Tribunal notes the applicant later amended his evidence regarding the timing of [Mr D]’s death from June 2009 to March 2009 by way of a notification of incorrect answer form received by the Department [in] January 2014.

13. The applicant claimed that he accompanied his wife to Australia and they returned to India to visit their parents in 2010 and 2011 for short periods. During his last visit to India in 2011, [in] March, the police raided his house but he was not there. He was in the [another village]. He claimed he escaped to Australia soon after.

14. [In] January 2013, the police picked up his other friend [Mr C] and he was beaten and died a few days after, in police custody. He claimed the police threw [Mr C]’s body in front of his house [later in] January 2013. Although there was great tension in the area due to the death of [Mr C], no further action was taken by the authorities against the police responsible for his death. The applicant claimed he was to travel to India around that time but postponed his plans due to fear of death. The applicant claimed his fear came to be true when last week police picked up his father from their house and beat him to pressurise him to come back from Australia for reasons best known to [Town 1] police or his enemies. After his father’s release, his father called to warn him that he should never come to India because the police will surely kill him or falsely frame him in some heinous crime. The applicant claimed this was the reason he left India and does not want to return.

15. The applicant claimed that he fears he will be killed by the Punjab police or his opponents/enemies in [the] village who are very influential and in power in the State of Punjab. He claimed they have links with other gangsters in various parts of India. He may be falsely framed in another criminal case or may be jailed or tortured or humiliated.

16. In response to the question “Why do you think this will happen to you if you go back? “, the applicant claimed this is a matter of political cum village rivalry dating from a long time back. He stated that he and his family are Congress workers and voted and supported Congress Sarpanch MLA’s. He claimed Akali leaders want to eliminate them. They made the death of a villager a reason to harass them. His two friends were also Congress men and they had been killed over the same issue, in the same way. The applicant stated that he will also face the same tragedy if he returns.

17. The applicant claimed that the authorities would not protect him as his enemies belong to the ruling Shiromani Akali  Dal (Badal) and have political influence in the area. They are in connivance with the Punjab police, who have tortured him and killed his two friends in the past.

18. The delegate of the Minister for Immigration and Border Protection refused the applicant a protection visa [in] October 2014 and the applicant applied to this Tribunal for review of that decision [in] November 2014. Attached to the review application was a copy of the delegate’s decision.

19. The primary issue in this review is whether there is a real chance that, if he returns to India, the applicant will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to India, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of the Migration Act.

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

21. The applicant’s claims regarding his fear of returning to India stems from an incident that he  asserts occurred in 2003, when he and two friends were arrested and detained by the Punjab police, for the murder of a boy named [Mr A]. The Tribunal has carefully considered the evidence provided by the applicant regarding this particular incident, and the subsequent problems he claimed to have experienced, and due to numerous inconsistencies and discrepancies discussed below, the Tribunal does not accept the applicant’s claims regarding his past problems in India are credible.

22. Firstly, the Tribunal finds the applicant’s evidence as to the reason why he and his friends were arrested and detained in 2003 has changed over time. The Tribunal notes in the hearing the applicant claimed that he and his friends were suspected for this crime because on the night [Mr A] was killed and his body was thrown in the river, he and his friends were at the market drinking. The applicant also explained that at the time of [Mr A]’s death, there were local village elections and the opposition party, the Akali Dal, wanted to get them in trouble and insisted that they be involved in this case. When asked why the Akali Dal wanted to falsely implicate him and his friends in the murder of this person, the applicant stated that at the time his father had a good reputation in the village and was well-know and his father was contesting the local village election as a member of [a certain organisation]. The applicant claimed that a person named [Mr F], who was the main leader of the Akali Dal and the current Sarpanch, was behind his arrest. He confirmed [Mr F] was responsible for informing against him and encouraging [Mr A]’s family to involve him in the case because they were also from the Akali Dal. However, he also claimed that [Mr A]’s family believed that they were responsible for their son’s death.

23. In contrast, the Tribunal notes that the applicant claimed in his protection visa application and statutory declaration submitted to the Department that he and his two friends were framed by the family of [Mr A] because of an old rivalry between his family and [Mr A]’s family. The Tribunal also observes that the applicant made no mention of anyone by the name of [Mr F] as being involved, let alone instrumental for him being implicated in this case. Additionally, the Tribunal finds that there is nothing in either the applicant’s protection visa application or in his statutory declaration to indicate that his arrest took place around the time of local village elections or that his father had any association with a [certain organisation]. In fact, as the Tribunal noted in the hearing, in the protection visa application, the applicant claimed that he and his family were Congress workers “since quite long back” and that they voted for and supported the Congress Sarpanch.    

24. Secondly, the Tribunal finds the applicant’s evidence regarding when he and his friends were arrested inconsistent. In the hearing, he claimed that he was arrested from his home, three to four days after [Mr A]’s body was found. However, in both the protection visa application and his statutory declaration, he claimed that [Mr A]’s body was found [in] May 2003 and he was picked up by the Punjab police [later in] May 2003, several weeks later and not just a few days after the body was found, as he contended in the hearing. While the applicant admitted he made a mistake and that he had not expected he would have to explain dates, the Tribunal does not accept given the significance of this particular event, that the applicant would not be able to recall consistently whether his arrest occurred days or weeks after the body of [Mr A] was found.

25. Thirdly, the applicant claimed in the hearing that during the three months he was allegedly detained and regularly tortured by the Punjabi police, a doctor was brought to give them medical attention. The applicant stated he was never taken to hospital while he was detained but that they would sometimes take him to a small local doctor when he fainted after being beaten. The Tribunal notes in the applicant’s protection visa application, he claimed to have been taken to hospital a few times in a state of unconsciousness due to his injuries and beatings. When this was put to the applicant, he explained that when he stated hospital he meant small doctor. The Tribunal has some doubts about there being a comparison between a small local doctor and a hospital. In any case, the Tribunal finds the applicant’s evidence that the Punjabi police who had allegedly arrested him on false charges and routinely tortured him would repeatedly seek medical treatment for the applicant, including taking him outside the police station, unconscious because of any concern for his welfare or the applicant bringing a case against them, implausible. As the Tribunal put to the applicant in the hearing, the independent information regarding the Punjab Police, particularly in the early 2000’s reports on their practice of arbitrary detention of suspects, engaging in torture and extra judicial killings and ‘ disappearances’, and in circumstances where he purports the police to have falsely implicated him in a murder case on the behest of others, the Tribunal finds the applicant’s claims in the hearing that the Punjab police were concerned about his physical wellbeing far-fetched and fanciful.

26. Fourthly, the applicant claimed in the hearing that following his release from detention, from 2003 to 2007 he lived outside of his village with friends and relatives. He stated that he had lived in [a certain] area and in [another place]. He used to go to different places with his friends and could not remember all the names of where he had stayed. He confirmed that he did this for a period of five years, before returning to his village in 2007, however he again had to live outside his village for a period of a year and a half. The applicant confirmed during these years he had no problems because he was not staying in one place and he did not go back to his village. In comparison to the applicant’s claims in the hearing, the Tribunal notes that in the applicant’s protection visa application he stated that he had lived at the one address in his [village] from his birth until he left the country in July 2009 to come to Australia. Further, there is nothing in either his protection visa application or his statutory declaration, to indicate that for several years he was living in various places because of fears for his safety. In fact, the applicant specifically states that the matter got silent for about five years and while he does claim to have been called to the police station, he stated that this happened occasionally and not once as he claimed in the hearing. The Tribunal finds it implausible that if the applicant had been moving around for a period of four to five years and had not lived in his village because of his alleged fear of being harmed, that he would not raise this prior to the hearing. The Tribunal does not accept the applicant’s assertions that because he is not a lawyer he did not know what to mention. The Tribunal finds that the applicant has provided a relatively detailed account of what transpired since his alleged arrest in 2003 and does not accept that he would not appreciate the relevance of him living in hiding for a substantial period of time, to his alleged fear of returning to India. The applicant also claimed that his wife was responsible for what was written in his application form and while the Tribunal accepts that the applicant’s wife may have assisted the applicant in preparing his application, the Tribunal notes the applicant’s wife’s evidence that she and the applicant were married in an arranged marriage in 2009 and she only became aware of the problems the applicant allegedly experienced in the past after her marriage to him and therefore she would have written what the applicant told her. Additionally, the applicant signed the application as being true and correct and subsequently provided a statutory declaration made by him, reiterating his claims, in which he also failed to mention anything about living in various places for several years. The Tribunal therefore finds the applicant has embellished this aspect of his claims. 

27. Fifthly, the applicant claimed in the hearing when he allegedly returned to his village in 2007, because he had thought everything had settled, that he was attacked when he was on his way to his farm. He stated that this occurred 20 days to one month after he returned. A car with boys in it came along and the boys surrounded him and hit him with bats and rods and neighbours working in their farms came with their tools and the boys fled and then he was taken to hospital. Although the applicant initially claimed he did not recognise any of the boys, later in the hearing he claimed one of the assailants was [Mr E] and that he, the applicant, made a complaint against him. The applicant claimed he sustained injuries to his head and hand and had marks on his leg and was hospitalised for 10 days although he could not remember exactly. However, as the Tribunal noted in the hearing, there was nothing mentioned in either the applicant’s protection visa application or his statutory declaration about this serious attack on him. Nor is there anything in the delegate’s decision, a copy of which was provided to the Tribunal by the applicant, to suggest that he discussed this event at the interview with the Department. While the applicant explained this omission as being due to him not having enough knowledge, the Tribunal finds it implausible given the seriousness of this alleged incident that the applicant would not appreciate the significance of such an event to his claims for protection or that he would fail to recount this in his protection visa application or statuary declaration when describing his past experiences in India. The Tribunal therefore does not accept that the applicant was violently attacked by several men in 2007 as he claimed in the hearing.

1. Sixthly, the applicant provided inconsistent evidence regarding his alleged arrest and detention in 2009, two months after his friend [Mr D] was allegedly killed in custody. In the hearing the applicant claimed that he was in his village to attend post wedding ceremonies when the police came to his house and took him. He stated that his family and all the people who were gathered at his home followed them to the station and essentially staged a sit-in outside the police station. He told the Tribunal that he was kept for three to four hours during which time his statement was taken again. When asked if he was beaten while at the police station for those few hours, the applicant stated that they slapped him. The Tribunal asked the applicant if he required any medical treatment. He stated no, because he was just slapped. The Tribunal asked the applicant why he was taken by the police in 2009. While the applicant initially stated that only the police would know why, he also claimed they just wanted some money. However, according to the applicant’s protection visa application and statutory declaration, he claimed that when he was taken to the police station he was beaten mercilessly on the behest of [Mr B and Mr E]. Further, he claimed he was beaten for several days in the presence of them and was hospitalised, which the Tribunal finds to be vastly different from his evidence in the hearing. Additionally, the Tribunal notes the applicant wife gave evidence in the hearing that after her marriage to the applicant in 2009, the police came about two or three times searching for the applicant and once or twice he was picked up and taken to the police station where he was kept for two or three days or sometimes one to two weeks. The Tribunal finds the applicant wife’s evidence regarding the interest in the applicant in 2009, from after their marriage, to be inconsistent with the applicant’s evidence in the hearing, as discussed above.

2. Seventh, the applicant claimed in the hearing that after he left India, [Mr F] and [Mr B] had sent people to threaten his father a couple of times and once they had hit his father accidently. The Tribunal asked the applicant if his father had been threatened only by these people or if anyone else had done anything to his father. The applicant asserted that it was only the people acting on behalf of [Mr F and Mr B]. Yet, in the applicant’s protection visa application he claimed that the police had come and picked up his father and beat him to pressurise him to calll the applicant back from Australia.

3. The Tribunal has taken into consideration the applicant’s return to India in February 2011 for a period of a month, when he went back to perform rituals associated with the recent passing of his grandmother and to also bring the applicant child back to Australia. While the Tribunal appreciates the importance of being able to participate in the rites and ceremonies associated with the death of a loved one, the Tribunal has difficulty accepting that in circumstances where the applicant allegedly fled the country in order to save his life, that the applicant would return to India even to attend his grandmother’s funeral. The Tribunal also has serious concerns about the fact that the applicant wife travelled to India with the applicant child prior to the applicant, and left her there for a period of time, without either she or the applicant present. The Tribunal finds that these circumstances raises considerable doubt about the genuineness of the applicants’ fear.

4. Further, the Tribunal has had regard to the fact the applicant waited until December 2013, four years after arriving in Australia, to apply for protection despite the fact he claimed he left India as result of the alleged problems he had experienced. The Tribunal notes according to the delegate’s decision attached to the applicant’s review application, the applicant travelled to Australia as a dependent on the applicant wife’s 572 visa which ceased [in] September 2011. The applicant wife applied for a further visa [in] August 2011 and this was refused [in] October 2011. She subsequently applied to the MRT for review of this decision and her appeal was refused on 11 June 2013. The applicant wife then made a section 351 Ministerial Intervention request and this was declined [in] November 2013. The applicant then lodged his protection visa application [in] December 2013. It is well established that delay in applying for refugee status is a relevant consideration. In Anandaray Subramaniam v MIMA (unreported, Federal Court of Australia, Carr J, 10 March 1998) Justice Carr agreed with Heerey J in Selvadurai v MIEA & Anor (1994) 34 ALD 346 as a matter of principle that the period of time which elapses between an applicant’s arrival in Australia and the time when he or she claims refugee status is a legitimate matter to take into account when assessing the genuineness or at least depth of an applicant’s fear of persecution. His Honour went further and found that such a delay is a legitimate matter which the Tribunal is entitled to take into account when deciding whether to believe an applicant. The Tribunal notes the applicant’s explanation for his delay, when this was put to him in the hearing, was that he was on a student visa and that there was no surety for this visa. However, as noted above, the applicant had not been on a student visa since September 2011 and in circumstances where the applicant claimed he left India to save his life, the Tribunal finds the applicant’s delay until he exhausted other avenues available to him raises concerns about the genuineness of his fear.

5. The Tribunal notes that the applicant provided a number of documents to substantiate his claims for protection including FIRs, receipts for FIRs, death certificates, hospital documents and newspaper articles. However, given the Tribunal’s concerns regarding the applicant’s credibility, the Tribunal places little weight on these documents. Further, the Tribunal has had regard to country information it put to the applicant in the hearing, including information from DFAT Country Information Report on India dated 15 July 2015 regarding the prevalence of document fraud in India. According to this report, there are no classes of documents which are not open to fraud.

6. Based on the many significant inconsistencies and discrepancies in the applicant’s evidence, as discussed above, the Tribunal does not find the applicant to be a credible witness or his claims for protection genuine. Further, the Tribunal finds the applicant’s return to India despite the alleged targeting of him over a period of some six years and his delay in seeking protection raises further doubts about the veracity of his fear. As such, the Tribunal does not accept that the applicant or his friends were ever arrested and detained in 2003 or at any subsequent time for any reason including because they were suspected of being responsible for the death of a young man or because of any long standing dispute with a rival family or because of the actions of Akali Dal members, particularly [Mr F]. The Tribunal therefore does not accept that the applicant lived in various places for several years to avoid any harm from either the police, [Mr F], [Mr B] (the father of the alleged dead young man), [Mr E], the Akali Dal or anyone associated with any of these people. It does not accept that the applicant was required to go to the police to make any statements in relation to this alleged incident in 2003 or that he was occasionally called to the police station in his village, as he claimed in his protection visa application. The Tribunal does not accept that the applicant was physically assaulted by a group of boys in 2007 or that he was falsely framed in another criminal matter which occurred in 2008 and tortured by police during this incident. Nor does the Tribunal accept that the applicant was taken to the police station and detained in 2009 or that his friends were also detained and killed in custody in 2009 and 2013. It therefore follows that the Tribunal also does not accept that the applicant’s father was threatened by people sent by [Mr F] and [Mr B] after the applicant departed India or that the police picked his father up from the family home and beat him so as to “pressurise the applicant to return to India”.  

7. For the reasons provided above, the Tribunal does not accept that the applicant faces a real chance of persecution from the Akali Dal, [Mr F] and [Mr E], the family of the alleged boy killed in 2003 including his father [Mr B], who are long standing rivals of the applicant’s family or anyone associated with any of these groups, including the police, now or in the reasonably foreseeable future, if he returns to India.      

8. While the applicant wife and daughter were included in the applicant’s protection visa application as members of his family unit and were relying on his claims for protection, during the hearing the applicant raised the fact that his young daughter was born in Australia and does not know the Indian culture or anyone in India. The Tribunal notes the applicant’s daughter was born in September 2010 and while she has not lived in India for a long period of time since her birth, the Tribunal does not accept that she has not been exposed to the Indian culture in Australia by her parents. Further, the applicant wife travelled to India in December 2010, leaving the applicant child there with the applicant’s family, until the applicant returned to India in February 2011 to bring her back to Australia. The Tribunal does not accept that in these circumstances the applicant child does not know anyone in India or that the applicant daughter’s unfamiliarity with India and/or Indian culture constitutes serious harm within the meaning of the Convention.

9. The Tribunal has also had regard to the applicant’s claim in the hearing that there are a lot of rapes in India. Similarly, the applicant wife referred to the kidnapping of children and to “what happens to ladies” in India. The Tribunal is concerned that if the applicant or applicant wife had a genuine fear for the applicant child’s safety, including a fear of her being kidnapped, that they would have left her there for a period of a month by herself, albeit with family members, but away from them. While the Tribunal accepts that there may be cases of kidnapping of children that occur in India, the Tribunal does not accept on the very vague and limited information provided by the applicant and applicant wife in relation to this particular claim, that the applicant child faces a real chance of being kidnapped either by unidentified people and certainly not [Mr F], the Akali Dal and [Mr B] or his family (as ambiguously raised by the applicant wife). Similarly, the Tribunal accepts the applicant and applicant wife’s claims regarding rape of women in India. However, as the Tribunal observed in the hearing, such criminal activities also occur in Australia. The Tribunal notes the applicant wife’s evidence, when asked if she had experienced any problems in India as a woman prior to coming to Australia, she stated no, nothing happened but it could happen. The Tribunal finds the applicant and applicant wife’s claims regarding the risk of harm in the form of violence (including sexual violence) to the applicant wife and applicant child, as women, by unspecified people, purely speculative. The Tribunal notes the applicant wife subsequently claimed that the people who wish to harm the applicant may do anything to her or the applicant child in revenge. However, for the reasons provided above, the Tribunal does not accept the applicant’s claims regarding his alleged past problems in India and therefore does not accept that there is anyone who wishes to harm either the applicant or his family members. As such, the Tribunal does not accept that the applicant wife or applicant child faces a real chance of persecution, now or in the reasonably foreseeable future, for a Convention reason.    

   Complementary protection obligations

10. On the basis of the applicants claims to be nationals of India and their Indian passports, the Tribunal finds that India is the applicants receiving country for the purposes of s.36(2)(aa).

11. As the Tribunal does not accept that the applicant is a refugee as defined in the Refugees Convention, the Tribunal has considered the alternative criteria in s.36(2)(aa), whether 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 as defined in subsection 36(2A) of the Act.

12. Having regard to the definition of significant harm in s.36(2A) of the Act as set out under the heading ‘relevant law’ above, and the findings of the Tribunal above, the Tribunal does not accept that what the applicant might experience upon return to his home in India will involve a real risk of being arbitrarily deprived of his life; having the death penalty carried out on him; or being subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

13. Based on the findings and reasons of the Tribunal above regarding the applicant’s claims that he faces harm from the Akali Dal, [Mr F], [Mr E], [Mr B] and his family who are long standing rivals of the applicant’s family or anyone associated with any of these groups, including the police, the Tribunal finds that there are no 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, including being killed. Nor does the Tribunal accept that the applicant or applicant wife face a real risk of suffering significant harm, in an act of revenge by these alleged people or groups. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

14. The Tribunal also does not accept on the basis of the somewhat vague claims made during the hearing and limited material before it, that there is real risk that the applicant child will be kidnapped or that either the applicant wife or applicant child will be subjected to criminal acts in the form of violence, including sexual violence, on their return to India. The Tribunal finds the applicants claims in this respect to be speculative. The Tribunal does not accept on the evidence provided by the applicant in the hearing that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to India that there is a real risk the applicant wife and applicant child will suffer significant harm because they are women or for any other reason.

15. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

16. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Sydelle Muling
    Member