1418632 (Refugee)

[2016] AATA 3773

1418632 (Refugee) [2016] AATA 3773 (17 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1418632

COUNTRY OF REFERENCE:                  India

MEMBER:Chris Thwaites

DATE:17 April 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 17 April 2016 at 12:19pm

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)[1].

   [1] The relevant law is attached to this Statement of Decision and Reasons.

2. The applicant, who claims to be a citizen of India, applied for the visa [in] May 2014 and the delegate refused to grant the visa [in] October 2014.

3. On 14 November 2014 the applicant applied to the Tribunal for review of that decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The Tribunal has before it the Department’s file relating to the applicant’s protection visa application and the Tribunal’s file relating to the review application. The Tribunal has also had consideration of the documents provided to the Tribunal in support of the application and their English translations, as well as the delegate’s decision record and the CD recording of the applicant’s interview with the delegate, provided to the Tribunal by the applicant.

5. The applicant’s written reasons for claiming protection are contained in his protection visa application form. In summary the applicant claims that he was in love with girl named [Ms A]. She belongs to another caste. Her family was against them. They tried to hurt the applicant heaps of times. That is why he left his country.

6. The applicant indicates that he has experienced harm in his country, and states one day he was travelling to another city when [Ms A]’s brother saw him. He came with a few guys and without any reason started to beat the applicant and tried to kill him.

7. The applicant states he is still in love with [Ms A], but her father and brother do not like the applicant. They both tried to kill the applicant several times. They are richer than the applicant’s family and if he goes back to India they will definitely kill him. The applicant indicates he thinks [Ms A]’s father and her brother and their goons may harm or mistreat him if he goes back to India.

8. The applicant thinks this will happen because he and [Ms A] still love each other. Her family do not like that she will love a person that does not belong to their caste. The applicant states that if he goes back, [Ms A]’s father, brother and her brother’s goons will kill him and that he does not want to die at this early age.

9. The applicant indicates he does not think the authorities in India can and will protect him if he goes back. He states [Ms A]’s family is rich in the city and due to corruption her father can buy the cops and the politician, and they will do what [Ms A]’s father wants.

10. The delegate’s decision record, provided to the Tribunal by the applicant, indicates that [in] January 2014 and [March] 2014 the applicant lodged protection visa applications which were both found invalid as he did not present to the Department for biometrics. The delegate’s decision record indicates the additions or variations from these protection visa applications to the claims made by the applicant in his protection visa application made [in] May 2014 include:

    ·The applicant’s family agreed that he could marry [Ms A], but her family did not agree and tried to harm him and so he married with another girl and came to Australia.

    ·When the applicant was coming to Australia, [Ms A]’s brother and father found him in New Delhi. They broke his [limb] and he ran and saved himself.

11. The delegate’s decision record also indicates the applicant was interviewed by the delegate [in] July 2014 and in summary, his claims provided at interview were;

    ·the applicant met [Ms A] sometime around the end of 1998 or beginning of 1999. Not long after they met he proposed to her and she agreed.

    ·[Ms A]’s parents did not agree to the marriage because their family was [another religion] and he was Sikh.

    ·The applicant continued to go out on dates with [Ms A] in secret, but in 2004, her brother found out and her brother beat him and he was hospitalised. [Ms A]’s brother has taken an oath to kill him.

    ·The applicant was housebound and could not go outside even to go shopping. The attack that occurred prior to the applicant coming to Australia, occurred in [City 1].

12. [In] October 2014 the delegate refused to grant the applicant a protection visa because the delegate did not find it credible that the applicant was attacked by [Ms A]’s brother in 2010 as he had claimed, or that [Ms A]’s brother and family had threatened the applicant’s family that they will kill the applicant if he returns to India, or that [Ms A]’s brother had taken an oath to kill the applicant. The delegate was not satisfied there was a real chance that the applicant would face serious harm from [Ms A]’s family if he returned to India in the foreseeable future because of having a relationship with [Ms A] or for being a Sikh. The delegate was not satisfied the applicant had a real chance of being persecuted for a Refugee Convention reason and therefore was not satisfied the applicant’s fear was well-founded. The delegate was not satisfied Australia had protection obligations to the applicant under the Refugees Convention and therefore the applicant did not satisfy s.36(2)(a). The delegate was also not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the noncitizen being removed from Australia to a receiving country, there was a real risk the noncitizen will be subject to significant harm. Therefore the delegate was not satisfied Australia had protection obligations to the applicant under s.36(2)(aa).

13. On 14 November 2014 the applicant applied to the Tribunal for review of that decision.

14. On 14 November 2014 the applicant provided copies of a number of police and court documents to the Tribunal in a language other than English together with their English translations: one titled  English translation from Punjabi, outlining police charges against[the applicant]; one titled First Information Report outlining an informer indicated [the applicant] is habitually [details deleted]; one document titled In The Court of [name deleted] Special Judge [City 1], State v[the applicant], outlining the judgement of that court noting that [in] May 2001 the accused was arrested and charged under section 21 of the [deleted] Act 1985, and that the accused denied the entire incriminating circumstances appearing against him, and that the prosecution had miserably failed to prove guilt of the accused beyond reasonable doubt, and that the accused was acquitted of the charge framed against him.

15. The applicant appeared before the Tribunal on 1 March 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

16. During the hearing the applicant told the Tribunal he feared returning to India because the family of the girl he had had a relationship with were rich and angry about the relationship and they will put him in jail, they will not let him come inside the city, her brothers are not gentlemen, her [relative] is a Minister, and they will again put him in jail. He told the Tribunal that is why he left his home and moved to Delhi, and that is why he did not live in his city. Later in the hearing the applicant also told the Tribunal that he feared that if he goes back to India, [Ms A]’s brothers will beat him, and they will put charges against him. On questioning why [Ms A]’s family would continue to have any adverse interest in the applicant, given his oral evidence that his relationship with [Ms A] ended in 2000, and that both he and [Ms A] had since married other people, and had not seen each other since 2004, the applicant told the Tribunal it was a question of respect, they feel they were insulted, therefore they continue to wish to harm the applicant. The applicant told the Tribunal they beat [Ms A] as well. 

17. At the conclusion of the hearing the Tribunal granted the applicant 14 days in which to provide any further evidence or documents in support of his application.

18. On 7 March 2016 the Tribunal received a copy of an appointment confirmation letter from [a health facility] addressed to the applicant for an appointment [in] March 2014, as well as a number of tax invoices from [a] pathology for services in 2011 and 2012 and 2013, as well is a CD labelled PV Int. [date]/07/2014.

    FINDINGS AND REASONS

    Nationality

19. On the basis of the copy of the applicant’s Indian passport, provided to the Department, the Tribunal finds that the applicant is a national of India. As the Tribunal has found that the applicant is a national of India, the Tribunal also finds that India is the applicant’s “receiving country” for the purposes of s.36(2)(aa).

    Credibility

20. During the hearing the Tribunal spoke to the applicant about his background, his family composition, where he had lived in India, he is education and employment history, his relationship history, specifically about his relationship with [Ms A], and the reasons he left India and his fears of returning. During the hearing the applicant told the Tribunal a friend assisted him to complete the visa application form. His friend asked him questions on the form and wrote his answers in English. He told the Tribunal he knew what was written in the form, and on questioning whether he wished to add or change anything to the form, the applicant told the Tribunal that whatever’s written is the same information.

21. While the Tribunal notes the applicant has remained broadly consistent in his claims about his fears of returning to India being connected to fears of harm from [Ms A]’s family and the people they can influence, when questioned in detail during the hearing about his relationship with [Ms A], and the harm he had experienced in India, the Tribunal raised a number of concerns in relation to the applicant’s credibility and the reliability of his evidence. During the hearing the Tribunal raised its concerns about the differences between the applicant’s oral evidence and the information he provided in his visa application form, and the information recorded in the delegate’s decision record the applicant had provided to the Tribunal. The Tribunal also raised its concerns about the genuineness of the documents the applicant had provided to the Tribunal, and about the applicant’s delay in making his protection visa application after he arrived in Australia.

22. During the hearing the Tribunal asked the applicant whether he had any medical conditions or was taking any medication that might affect his ability to recall things consistently or in detail. In response the applicant told the Tribunal he did not have any medical conditions and was not taking any medication at the time of the hearing. While the Tribunal accepts the passage of time can affect a person’s ability to recall matters in detail and consistently, the Tribunal does not accept this explains some of the critical differences between the applicant’s oral evidence and the information he provided in his visa application form, and the information he provided to the delegate during their interview, or the other credibility concerns raised by the Tribunal. The Tribunal finds the applicant is not a witness of truth and it is not satisfied the applicant has told the truth in relation to critical aspects of his claims. The reasons for this finding are discussed below.

23. During the hearing the applicant told the Tribunal he had lived in Delhi in 2004/2005, and had then lived in [location] which is far away from his family home for almost one and a half years, and then he moved back to Delhi. He told the Tribunal he lived in Delhi for 10 to 12 years and then clarified his oral evidence and told the Tribunal he lived in Delhi for six or seven or eight years. He told the Tribunal he also used to visit his [relative]’s home in [another city] and visited his friend’s homes in the same city] once or twice. He told the Tribunal he last visited his family home in [City 1] a week before he came to Australia and stayed for almost six or seven days. The applicant later told the Tribunal he also used to accompany his [relative] on interstate[trips]. He later told the Tribunal he first stopped living in his family home to avoid being harmed by [Ms A]’s family in 2001.

24. The Tribunal raised its concerns that the applicant’s oral evidence was different to the information in his visa application form. The Tribunal noted the applicant’s visa application form indicated the applicant lived at an address in [City 1], which he identified as his family’s home address, between [date] and July 2010, which was when he left India to come to Australia.

25. In response the applicant told the Tribunal whatever he had said was correct. He suggested the Tribunal can check the recording of his interview and that he had said the same thing in his interview. The Tribunal noted that the delegate’s decision record does not record the applicant spoke about living in different places prior to leaving India. The applicant told the Tribunal he had the CD of his interview. The Tribunal later noted that the CD of the applicant’s interview on the Department’s file did not contain any data. The applicant told the Tribunal he will provide the Tribunal with a copy of the CD he has of the interview and the Tribunal granted the applicant time in which to do so. The Tribunal has listened to the CD provided by the applicant after the hearing. The CD contains a recording of the applicant’s interview with the delegate [in] July 2014. The Tribunal notes that, consistent with the information in the delegate’s decision record, when the delegate asked the applicant if he had lived anywhere else in India apart from [City 1], the applicant told the delegate he had not lived anywhere else in India.

26. During the hearing the Tribunal also raised its concerns about the difference in the applicant’s oral evidence and the information he provided to the delegate in their interview, as recorded in the delegate’s decision record provided to the Tribunal by the applicant. The Tribunal noted that the delegate’s decision record indicated the applicant had told the delegate that he had always lived in his home town and had never moved prior to coming to Australia. In response the applicant asked the Tribunal if it had a copy of his first refugee visa application and in that everything is mentioned. The Tribunal noted the delegate’s decision record indicated the applicant had tried to lodge a protection visa application [in] January 2014 and [January] 2014, and that these applications were deemed invalid by the Department because the applicant had failed to provide biodata. The applicant told the Tribunal he has taken photographs of all the documents and would provide copies of them to the Tribunal with the CD of his interview, after the hearing. The Tribunal notes that while the applicant did provide a copy of the CD recording of his interview with the delegate after the hearing, he did not provide a copy of his previous application forms to the Tribunal. Nevertheless, even if the applicant had provided copies of his previous applications, the Tribunal does not consider this would resolve the issue of the differences between what the applicant had told the Tribunal during the hearing and the information in his most recent visa application form, and the information he provided during his interview with the delegate.

27. The Tribunal finds the applicant provided very different oral evidence about where he had lived in India prior to coming to Australia during the hearing, to the information he provided in the visa application form he lodged [in] May 2014, and the information he provided to the delegate in his interview [in] July 2014 as recorded in the CD which he provided to the Tribunal, and as noted in the delegate’s decision record which he also provided to the Tribunal. The Tribunal considers these differences reflect poorly on the applicant’s credibility and the reliability of his evidence.

28. During the hearing the Tribunal asked the applicant about his relationship with [Ms A] in detail. When asked when the applicant met [Ms A], the applicant told the Tribunal they had studied together in 1997-1998, and that she was one class below him. He told the Tribunal she lived in her family home near his family [home]. He later told the Tribunal that their mothers were friends and she used to visit his house. When asked if he had known [Ms A] before they studied together in 1997-1998 the applicant told the Tribunal he had seen her in school and knew her before because they were neighbours, and at that time they were small and grew up together, and then around 2000 to 2005 they decided to get married, but her brothers beat him, and between 1998 and 2000, after 2000, he started having fights with them. He later told the Tribunal he proposed marriage sometime between 1998 and 2000 and her family found out about the relationship around 1999 to 2000, and that the first time her brother beat him was 1998 or 1999.

29. During the hearing the Tribunal raised its concerns that the applicant’s oral evidence was different to the information in the delegate’s decision record provided to the Tribunal by the applicant. The Tribunal noted the delegate’s decision record states that during the interview with the delegate the applicant claimed he met [Ms A] at the end of 1998 or beginning of 1999. In response the applicant told the Tribunal he told them she was his neighbour and that he knew her before as well. Whatever questions they asked him he just answered.

30. As noted above the Tribunal has also listened to the CD recording of the applicant’s interview with the delegate provided by the applicant after the hearing, and notes that the applicant told the delegate that he met [Ms A] at school where they studied together, and then clarified they met at a friend’s place. The recording does not record the applicant told the delegate she was [living nearby] and that he knew her before as well.  

31. The Tribunal does not accept the applicant told the delegate [Ms A] was [living nearby] and that he knew her before they studied together at school in 1998 or 1999.

32. The Tribunal finds the applicant provided very different oral evidence about where he first met [Ms A] to the information he provided to the delegate. The Tribunal considers this difference reflects poorly on the applicant’s credibility and the reliability of his evidence.

33. During the hearing the applicant told the Tribunal [Ms A]’s brothers beat him. On questioning, the applicant told the Tribunal he thought the first time they beat him was in 1998 or 1999. The Tribunal noted the applicant had earlier told the Tribunal that he thought [Ms A]’s family became aware of the relationship around 1999 to 2000 and asked the applicant why her brothers would beat him in 1998 if that was the case. In response the applicant told the Tribunal he may have been mistaken with the dates as it had been a long time ago and her brothers beat him so many times he could not recall how many. He also told the Tribunal he was sent to jail in 2004. He told the Tribunal that in 1998 they did not but in 2000 or 2001 they had a fight with him. He told the Tribunal that when he came to Australia he knew everything that had happened to him, but it had been a long time now so he has forgotten many things. He recalls that he came in 2010 and that his [limb] was broken and these are the few things he remembers. He thinks he went to jail in 2005 or 2006.

1. The Tribunal raised its concerns that the applicant had told the Tribunal earlier in the hearing that he had been jailed in 1998 for two or three months. In response the applicant told the Tribunal he was, but does not remember the dates. The Tribunal raised its concerns that the applicant had later told the Tribunal that he was jailed in 2004, and that he was having trouble remembering the dates and thought he may have been jailed in 2005 or 2006. In response the applicant told the Tribunal he did not go to jail only one time, he went to jail three or four times, in 1998 and in 2004 and in 2005 and 2006. Four or five times he went to jail. Every time they just used to put him in the jail, and every second day they used to take him to the police station. He just remembered he was in a jail for a long time in 2004 or 2005 for eight or nine months, and he has passed all the papers from there. It was a bad time.

2. The Tribunal raised its concerns that the applicant did not mention being put in jail in his visa application form, and that the delegate’s decision record, provided by the applicant to the Tribunal, does not indicate the applicant told the delegate in their interview about being put in jail. In response the applicant told the Tribunal it can check the papers he had provided, which he had arranged from India. The Tribunal noted there were documents on the Tribunal file, which the applicant indicated were the documents he was referring to. While the Tribunal noted the applicant had submitted some documents, it again raised its concerns that the applicant did not mention being put in jail in his visa application form, and the delegate’s decision record does not indicate the applicant mentioned being put in jail once, or a number of times during his interview. In response the applicant told the Tribunal that he did not know he had to put in all his history otherwise he would have done it, and that during his interview he told the same thing and that’s why he arranged all the papers from India. He later told the Tribunal that when he was interviewed they told him he had to prove that, and had to submit some proof of that, and that’s why he arranged the documents.

3. As noted above the Tribunal has also listened to the CD recording of the applicant’s interview with the delegate provided by the applicant after the hearing. The recording does not record the applicant told the delegate he had been jailed in 1998 for two or three months, or jailed in 2004, or 2005 or 2006, or that every time they just used to put him in the jail, and every second day they used to take him to the police station. The Tribunal notes the delegate did ask the applicant if he had ever been arrested in India, to which he answered “No”. The delegate also asked the applicant if he had ever been convicted of a crime in India to which he answered “No”.

4. The Tribunal does not accept the applicant told the delegate he had been jailed in 1998 or 2004 or 2005 or 2006 or that he had told the delegate that every time they just used to put him in the jail, and every second day they used to take him to the police station.

5. The Tribunal finds the applicant provided very different oral evidence to the information he provided to the delegate. The Tribunal considers this difference reflect poorly on the applicant’s credibility and the reliability of his evidence.

6. During the hearing the Tribunal also raised its concerns that the applicant had told the Tribunal that his father had been taken to jail, and then clarified his oral evidence and told the Tribunal his father had been taken to the police station and held from number of hours, yet the applicant did not mention this in his visa application form, and the delegate’s decision record does not indicate the applicant mentioned this to the delegate during their interview. In response the applicant told the Tribunal that he mentioned that during his interview.

7. As noted above the Tribunal has also listened to the CD recording of the applicant’s interview with the delegate provided by the applicant after the hearing. The recording does not record the applicant told the delegate his father had been taken to the police station and held from number of hours.

8. The Tribunal finds the applicant provided very different oral evidence to the information he provided to the delegate. The Tribunal considers this difference reflects poorly on the applicant’s credibility and the reliability of his evidence.

9. During the hearing the Tribunal raised its concern that the applicant had told the Tribunal that he had been hospitalised because of assaults on a number of occasions, yet the applicant made no mention of this in his visa application form. In response the applicant told the Tribunal he has all the documents and proof at home and that he will provide that material to the Tribunal after the hearing. The Tribunal notes that while the applicant provided some documents from [a health facility] about appointments and pathology services to the Tribunal after the hearing, the applicant did not provide any documents in relation to being hospitalised in India.

10. During the hearing the applicant told the Tribunal he had been hospitalised six or seven times after major assaults or incident with [Ms A]’s brothers or family. The Tribunal raised its concerns that the delegate’s decision record provided to the Tribunal by the applicant, indicates the applicant only told the delegate about two major incidents, one in 2004 and one in 2010. In response the applicant told the Tribunal he told about the incident when his [limb] was broken, and noted he had told them that between 1998 and 2004 they had not hit him, and whatever question they asked he answered only those questions. Now he is telling the Tribunal because the Tribunal is asking the questions.

11. During the hearing the Tribunal raised its concerns that the applicant had told the Tribunal that false cases had been made against him, yet the delegate’s decision record which the applicant had provided to the Tribunal, does not mention the applicant told the delegate about this during their interview. In response the applicant told the Tribunal they asked him, and then asked him if he had any proof to show whatever he was saying was correct or not, and that is why he organised the documents from India, and whatever they asked him he told them.

12. The applicant told the Tribunal that on his request his [relative]’s son went to the police station and asked for the old records and paid an amount to get the documents. He provided the documents to the applicant’s parents who had them translated and sent them to the applicant.

13. As noted above the Tribunal has also listened to the CD recording of the applicant’s interview with the delegate provided by the applicant after the hearing. The recording does not record the applicant told the delegate that false cases had been made against him, or that he was requested to provide proof. The Tribunal finds the applicant provided very different oral evidence to the information he provided to the delegate. The Tribunal considers this difference reflects poorly on the applicant’s credibility and the reliability of his evidence.

14. During the hearing the applicant told the Tribunal that just prior to leaving India to come to Australia he visited his family home, and that 10 or 11 people came to his family home and beat the applicant. The Tribunal raised its concerns that the delegate’s decision record which the applicant had provided to the Tribunal, indicates that the applicant’s previous protection visa application states that when the applicant was coming to Australia, [Ms A]’s brother and father found him in New Delhi. They broke his [limb] and he ran and saved himself. In response the applicant told the Tribunal that there might be some confusion in that, that they had come to Delhi to find him, but when he got his visa for Australia he went to his family home and they then attacked him and put chilli in his eyes as well, and did not let him go outside.

15. As noted above the Tribunal has also listened to the CD recording of the applicant’s interview with the delegate provided by the applicant after the hearing. The recording indicates the applicant initially told the delegate that eight or nine people beat him at the airport in India, and then later in the interview he told the delegate they did not touch him at the airport and that he was attacked at his parents’ home a few days before he left India.

16. The Tribunal finds the applicant has provided a number of different and inconsistent versions about when and where he was attacked in India prior to coming to Australia. The Tribunal considers these different and inconsistent versions reflect poorly on the applicant’s credibility and the reliability of his evidence.

17. During the hearing the Tribunal noted the applicant’s visa application form indicated the applicant arrived in Australia in July 2010 yet the applicant had not made his protection visa application until 2014. The Tribunal noted the applicant had lodged two protection visa applications in January 2014 which were both found invalid as he did not present biometrics to the Department, and had then lodged a valid protection visa application [in] May 2014. The Tribunal raised its concerns that the applicant had spent a number of years in Australia before he lodged his protection visa application. In response the applicant told the Tribunal that when he was in India he did not know anything about the law, and that after he arrived in Australia he was guided by people and did what people told him and advised him and he went with the crowd. The Tribunal noted the applicant had told the Tribunal he had worked distributing papers at [a location] for a migration agent for over a year, advertising the agent’s services in the area of the visas. In response the applicant told the Tribunal he had told them as well.

18. While the Tribunal accepts the applicant may not have been aware of the laws in Australia while he was in India, and may have been guided and advised by people in Australia, and while the Tribunal accepts working for a migration agent distributing advertising papers does not necessarily indicate the applicant would become aware of protection visas, it notes the applicant claims to have been in fear of [Ms A]’s family at the time he left India and that he had been harmed and pursued by [Ms A]’s family for many years prior to leaving India. In these circumstances the Tribunal would expect someone to have informed themselves about their migration options within a shorter time period.

19. The Tribunal considers the applicant’s delay in making his protection visa application reflects poorly on his credibility and the reliability of his evidence and claims to fear returning to India.

20. During the hearing the Tribunal raised its concerns that the delegate’s decision record which the applicant provided to the Tribunal indicated the applicant made an application to the Minister for intervention in his matter in May 2013, yet he did not indicate then that he feared returning to India. In response the applicant told the Tribunal he did not do that because he was guided and advised by different people to do different things, and he did not understand the process.

21. During the hearing the Tribunal raised concerns that the delegate’s decision record which the applicant provided to the Tribunal noted that the applicant was interviewed in June 2013 by a departmental community status resolution officer. In response the applicant told the Tribunal he was interviewed by two ladies every month and they were short short interviews. The Tribunal noted that according to the delegate’s decision record, when he was asked why he did not want to go home after his relationship with his [wife]broke down, he did not mention anything about fearing returning to India. In response the applicant told the Tribunal it was so hard for him when his [limb] was broken he did not have money from the operation, and nobody helps him in Australia or guides him properly, and he can’t speak English, and he has spoken to agents about what to do but they asked for a lot of money. He told the Tribunal he had given an agent $2000 but he did not do anything, and no one guides him in Australia although one friend helped him and told him to apply and that’s what he did.

22. While the Tribunal accepts the applicant has not had ongoing services of a migration agent or a professional advisor during his time in Australia, the Tribunal does not accept that explains why the applicant failed to mention his fear of returning to India when interviewed in June 2013, as indicated in the delegate’s decision record. The Tribunal considers this omission reflects poorly on the applicant’s credibility and the reliability of his evidence.

23. During the hearing the Tribunal discussed with the applicant the police and court documents he provided to the Tribunal. The applicant told the Tribunal [Ms A]’s [relative] had bribed the police and raised false charges against him. The Tribunal raised its concerns that the applicant had not mentioned false charges and or a court case in his visa application form, and there was no indication in the delegate’s decision record that he had raised it with the delegate during their interview. The Tribunal also raised its concerns that the applicant had only produced the documents after the delegate’s decision. Given this, and the country information that false and non-genuine documents were obtainable in India[2], the Tribunal raised its concern about the genuineness of the documents. In response the applicant told the Tribunal he was asked for one Lakh to remove the case against him and all his neighbours asked for the charges to be removed and that [Ms A]’s family put allegations against him because of [Ms A].

    [2] Department of Foreign Affairs and Trade Country Information Report  India  14 July 2015.

24. As noted above the Tribunal has also listened to the CD recording of the applicant’s interview with the delegate provided by the applicant after the hearing. The Tribunal notes the applicant did not mention any false charges or court cases to the delegate. The Tribunal notes the delegate did ask the applicant if he had ever been arrested in India, to which he answered “No”.

25. Given the applicant had not mentioned any false cases or court cases in his visa application form or during his interview with the delegate, and only produced the police and court documents after the delegate’s decision, in November 2014, four years after he arrived in Australia, and given the country information that false and non-genuine documents are obtainable in India, the Tribunal is not satisfied the police and court documents provided by the applicant are genuine, and the Tribunal gives them little weight. The Tribunal has concluded the applicant has provided non genuine documents to the Tribunal in order to deceive the Tribunal and strengthen his application. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of his evidence.

    Refugee Convention criterion: s.36(2)(a)

26. In order to meet the criterion for a protection visa under s.36(2)(a), the applicant must satisfy the Tribunal that they are a person in respect of whom 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). The Convention requires, amongst other things, that the applicant’s fear of persecution must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

27. For the reasons given above the Tribunal finds the applicant is not a witness of truth and it is not satisfied the applicant has told the truth in relation to critical aspects of his claims. The Tribunal is also not satisfied that the documents the applicant has provided in support of his application, as noted above, are genuine, and therefore the Tribunal gives them little weight.

28. For the reasons noted above, the Tribunal finds that the applicant is not a witness of truth and it does not accept the applicant was in a relationship with a girl called [Ms A], or that her family objected to the relationship and threatened and harmed the applicant and his family. While the Tribunal accepts the applicant arrived in Australia with a broken[limb], the Tribunal does not accept the applicant’s claims that his [limb] was broken due to an attack by [Ms A]’s family members or their associates. The Tribunal does not accept the applicant was attacked or harmed by [Ms A]’s brother or her father or other family members, or their associates or goons, or that his [limb] was broken or that he was hospitalised because of their attacks. The Tribunal does not accept [Ms A]’s family tried to harm or kill the applicant because of his relationship with [Ms A] (which the Tribunal does not accept occurred) and/or because of his caste or religion. The Tribunal does not accept [Ms A]’s family bribed the police or that false charges were brought against the applicant, or that he was arrested and spent time in jail, or that he was a defendant in a criminal court case, or that every second day they used to take him to the police station, or that his father spent time in the police station, due to the actions of [Ms A]’s family. The Tribunal does not accept the applicant left his home and lived in other locations in India to avoid harm from [Ms A]’s family, or that the applicant was in fear for his safety at the time he left India. The Tribunal does not accept the applicant’s family continues to be approached by [Ms A]’s family and threatened that they will kill the applicant if he returns to India.

29. The Tribunal does not accept there is a real chance the applicant will face serious harm, or harm of any kind, due to a previous relationship with a girl called [Ms A] (which the Tribunal does not accept occurred). The Tribunal does not accept there is a real chance the applicant will be threatened, or assaulted, or killed, or face serious harm, or harm of any kind, from [Ms A]’s family or their associates or goons if the applicant returned to India now or in the reasonably foreseeable future. The Tribunal does not accept there is a real chance the applicant will be arrested or have false cases bought against him due to the police and authorities being bribed or influenced by [Ms A]’s family, now or in the reasonably foreseeable future in India. The Tribunal does not accept there is a real chance the applicant will face serious harm, or harm of any kind, for any of the reasons he has claimed, if he returned to India now or in the reasonably foreseeable future.

30. The Tribunal finds that the applicant is not a witness of truth and it is not satisfied there is a real chance that the applicant will suffer serious harm, or harm of any kind, for the reasons he has claimed, of for any other reason, now or in the reasonably foreseeable future in India. Therefore the Tribunal finds the applicant does not have a well-founded fear of persecution.

31. Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

    Complementary Protection criterion: s.36(2)(aa)

32. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa). An applicant meets this criterion if he or she is a non-citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations because the Tribunal 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’).

1. As noted above, the Tribunal finds that the applicant is not a witness of truth and it does not accept the applicant’s has told the truth in relation to critical aspects of his claims.

2. For the reasons given above the Tribunal does not accept the applicant was in a relationship with a girl called [Ms A], or that her family objected to the relationship and threatened and harmed the applicant and his family. While the Tribunal accepts the applicant arrived in Australia with a broken[limb], the Tribunal does not accept the applicant’s claims that his [limb] was broken due to an attack by [Ms A]’s family members or their associates. The Tribunal does not accept the applicant was attacked or harmed by [Ms A]’s brother or her father or other family members, or their associates or goons, or that his [limb] was broken or that he was hospitalised because of their attacks. The Tribunal does not accept [Ms A]’s family tried to harm or kill the applicant because of his relationship with [Ms A] (which the Tribunal does not accept occurred) and/or because of his caste or religion. The Tribunal does not accept [Ms A]’s family bribed the police or that false charges were brought against the applicant, or that he was arrested and spent time in jail, or that he was a defendant in a criminal court case, or that every second day they used to take him to the police station, or that his father spent time in the police station, due to the actions of [Ms A]’s family. The Tribunal does not accept the applicant left his home and lived in other locations in India to avoid harm from [Ms A]’s family, or that the applicant was in fear for his safety at the time he left India. The Tribunal does not accept the applicant’s family continues to be approached by [Ms A]’s family and threatened that they will kill the applicant if he returns to India.

3. The Tribunal does not accept there is a real risk the applicant will be threatened, or assaulted, or killed, or suffer significant harm, or harm of any kind, from [Ms A]’s family or their associates or goons if the applicant is returned to India. The Tribunal does not accept there is a real risk the applicant will be arrested or have false cases bought against him due to the police and authorities being bribed or influenced by [Ms A]’s family, if  returned to India.

4. The Tribunal does not accept there is a real risk the applicant will suffer significant, or harm of any kind, if returned to India, for any of the reasons he has claimed or for any other reason.  

5. Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal is not satisfied there is a real risk the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subjected to torture, or cruel or inhuman treatment or punishment; or subjected to degrading treatment or punishment, if he is returned to India.

6. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that the applicant will suffer significant harm. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa) for a protection visa.

   CONCLUSION

7. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa.

8. 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

9. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Chris Thwaites
   Member  17 April 2016

   
   

   ATTACHMENT: RELEVANT LAW

10. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Refugee criterion

11. 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).

12. 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.

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

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

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

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

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

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

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

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

    Complementary protection criterion

21. 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’).

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

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

    Section 499 Ministerial Direction

24. 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.