1500744 (Refugee) [2018] AATA 3094 (30 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1500744
COUNTRY OF REFERENCE: India
MEMBER:Brendan Darcy
DATE:30 June 2018
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 30 June 2018 at 3:06pm
CATCHWORDS
Refugee – Protection Visa – India – Religion – Follower of the Jain religion – Member of the Bania caste – Property dispute – Victim of assault – Fears about criminals who are at large – Credibility concerns – Recusal request refused – Membership of the same family unit – Decision under review affirmed
Practice and procedure – Recusal request – Apprehended bias – Tribunal’s powers to obtain information – Role of an applicant's representative – Whether an interruption of a witness is giving evidence on behalf of that witness – Request refused
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 36, 65, 91R, 91S, 366A, 424, 425, 499
Migration Regulations 1994 (Cth), r 1.12, Schedule 2
CASES
Ahmed v MIMA [2000] FCA 1571
Applicant A v MIEA (1997) 190 CLR 225Kathiravelu v MIMA [2000] FCA 1279
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v MZYRI [2012] FCA 1107
MIAC v SZIAI (2009) 111 ALD 15MIMA v Rajalingam (1999) 93 FCR 220
MIMA v Sarrazola (1999) 95 FCR 517
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Prasad v MIEA (1985) 6 FCR 155
Rajaratnam v MIMA (2000) 62 ALD 73
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Subramaniam v MIMA (1998) FCA 305
SZLGP v MIAC (2009) 181 FCR 113
SZMWI v MIAC (2009) 111 ALD 160
SZQII v MIAC (2012) 126 ALD 479
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
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).
The applicants, who claim to be citizens of the Republic of India, applied for the visas on 28 April 2014 and the delegate refused to grant the visas on 18 December 2014.
In this decision, the primary or first named applicant [is] referred to as the first applicant; the secondary or second named applicant [is] referred to as the second applicant, or the first applicant’s wife.
The applicants appeared before the Tribunal on 10 March 2016 to give evidence and present arguments.
The applicants were represented in relation to the review by their registered migration agents.
RELEVANT LAW
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
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).
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
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.
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.
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.
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.
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.
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
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criterion 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’).
‘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.
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
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Member of the same family unit
Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if they are either a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spousal relationships.
CONSIDERATION OF CLAIMS AND EVIDENCE
The first applicant claims to be born on [date of birth] in the union territory of Chandigarh in India and to be a citizen of the Republic of India.
The second applicant claims she was born in [year] in Rohtak in the Indian state of Haryana and claims also to be a citizen of the Republic of India.
The first applicant claims to be able to speak, read and write Hindi, Punjabi and English.
Both the first and the second applicants initially arrived in Australia on 26 September 2002 as the holder of a [temporary] visa. Since his initial arrival, the first applicant has departed and re-entered Australia 16 times. Those trips include [various countries]. Full lists of visits are on the Departmental decision record file.[1]
[1] [file number deleted] Folios 18-19.
The first applicant's last entry into Australia was on 10 November 2010. The applicant's last [temporary] visa expired on 10 February 2011. Since then the first applicant has held a series of 12 bridging visas. The first applicant has had several visa applications refused, including [specified temporary] visas.
The second applicant last departed Australia on 1 February 2011 for India and returned to Australia on 25 March 2011.
On 28 April 2014 the applicants made valid applications for Class XA Subclass 866 protection visas and were granted associated bridging visas in association with the applications.
Written claims
The first applicant's claims are contained in a statutory declaration dated 22 July 2014 and are summarised below:
· The first applicant claimed to belong to the Bania (or Baniya) caste and that he was a follower of the Jain religion;
· In December 2005 the first applicant purchased a property in [Mohali district], as an investment;
· In April 2008 he was contacted by a loan company and told that [Mr A], the man who he had purchased the property from, had raised a loan against the same property. The first applicant was asked to return the whole amount or surrender the property;
· After contacting the police, on 14 June 2008, the first applicant was attacked by [Mr A] and several other men outside the front of his house. The assailants had between them [various weapons]. The first applicant claimed he had been beaten with significant wounds in 13 places and three fractures;
· The first applicant contacted [Mr A] who told him he had nothing to do with it and that the first applicant should repay the loan. [Mr A] told the first applicant that he would face 'dire consequences' if he sought a refund of the money;
· The first applicant claimed he was hospitalised and that on release he lived at the residence of the second applicant’s parents;
· Two of the first applicant's attackers were arrested and charged, however the applicant continued to receive threats. As soon as he was recovered from his injuries, the applicant fled India to Australia on the first of his numerous [temporary] visas on 5 August 2008;
· The first applicant returned to India for business since the incident but received threats while he was there;
·The first applicant returned to Australia on 11 August 2009. This was the last time the applicants left India. The first applicant has been told that his business has been broken into and associates of his attackers have been threatening his family in India;
·The first applicant claimed that the court proceedings were dismissed by the court in late 2013, leaving the alleged assailants in India completely free;
·Since then the assailants have been threatening and harassing his family in India, telling relatives that they will find the first applicant and kill him;
·The family of the second applicant live next door to the applicants’ residence and the sister of the second applicant lives in the applicants’ residence – all of which have been visited by [Mr A] and others;
·The first applicant was too scared to return to India as he fears that he will be killed by members of this group that [Mr A] belonged to. He states that the police can give him no protection from this group;
·The first applicant claims his family is essentially held hostage by [Mr A] and the alleged assailants;
·The first applicant also claims the group of men is motivated by hatred for him as he belongs to the Jain religion and is a member of the Bania caste. According to the written claims, the assailants say that Banias should no longer be part of society and should be eliminated and that along with the Brahmin caste, the Banias control everything;
·The authorities in India, it is claimed, cannot protect the applicants from such people as protection in India is superficial and the police did not charge the assailants for murder despite medical reports and evidence of grievous injuries.
Attached to the submission was a First Incident Report lodged in the courts against [Mr B] and [Mr A] dated 17 April 2013; and a case status report to verify the filling and proceedings of the criminal matter relating to the applicants.[2]
[2] [File number deleted] Folios 115-117.
Media reports from Indian newspapers dated indicated that the first applicant was attacked with sharp weapons over a property dispute and that the assailants were [Mr B] and [Mr A - variant spelling 1] (also mentioned as [Mr A] and as [Mr A – variant spelling 2]). The media reports include photographs of the applicants.[3]
[3] [File number deleted] Folios107-109;113-114;121-126.
The applicants’ representative also provided a number of articles regarding caste issues pertaining to the Bania caste, caste violence and corruption.
Delegate’s decision record
The applicants attended an interview with the officials at the Department of Immigration on 18 December 2013 to present arguments and additional evidence.
According to the first applicant he was asked at interview why he had not applied for a protection visa at an earlier date, given the claimed incident in India had occurred in 2008 and he had been in Australia relatively permanently since that time. The first applicant stated that he only became aware of protection visas while applying for ministerial intervention in regards to a prior visa application refusal. The delegate found this to be an unsatisfying explanation given the applicants’ familiarity with Australia’s visa processes and migration law.
Overall, the delegate found the first applicant's claims to be facing an ongoing risk of harm to lack plausibility. The delegate was satisfied there was a property dispute involving the applicant and some men in Chandigarh in 2008 which resulted in a physical attack on the first applicant; however the delegate did not accept that this dispute is ongoing, nor that the first applicant has faced threats since the initial attack.
The delegate refused to grant the applications for protection visas to the applicants on 18 December 2014.
The delegate’s decision record not to grant the applicants protection visas was attached to the review application.
Evidence before the Tribunal
The applicants sought to appeal that decision at the Tribunal, differently constituted on 19 January 2015.
On 2 February 2016, the applicants were invited to attend a scheduled hearing on 10 March 2016. On 9 February 2016, the applicants’ representative forwarded to the hearing a response that the applicants could attend and did not require an interpreter.[4]
[4] AAT Folio 52.
On 2 March 2016, the applicants’ representative required a postponement of the hearing on the basis that ‘an administrative error by our firm in typing the address, the invitation was sent to the wrong address for [the primary applicant], meaning he was not aware the matter had been scheduled until last week’.[5] The carefully considered request was refused.
[5] AAT Folio 54.
On 8 March 2016, the applicants’ representative submitted a copy of a 13 June 2013 Ministerial Request prepared by [Law Firm 1]. Although the quality of the copy was so poor that it was illegible in parts, it states the following:
At the time the Applicant was a bona fide purchaser of the property and without notice of the fact that [Mr A] had also apparently raised a loan against the property apparently from [Company 1] but for reasons not known to the Applicant this loan was not secured against the property. The Applicant leant [sic]of this in April 2008 when [Mr A] contact him and demanded that he return the property to [Mr A] as at the time he still owed approximately[amount]. The Applicant then demanded [Mr A] repay the loan to [Company 1] or refund the purchase price to the Applicant.
However, [Mr A] refused to do so and threatened the Applicant with dire consequences if he sought … the purchase money in the further. While the Applicant tried to resolve the issue amicably, he was unable to do so.
On the 14 June 2008 at about 11.15am while he was sitting in his car in front of his residence getting reading to go to the office, he was attached [sic] by [Mr A], [Mr B] and one other (note this is from the media report whereas client statement refurs to [various weapons].
After brutally attacking the Applicant and leaving him bleeding profusely outside his home, his class for help were head by his wife and son and others. He was immediately rushed to [a] Hospital in Chandigrah [sic].
Whilst the culprits were subsequently caught by the Police and criminal proceedings are outstanding against them in India, the Applicant has continued to receive threats against him (illegible) family. As a result. and with the view to purchasing further business activities for [Company 2] in Australia, he arrived in Australia on 5 August 2008 as the holder of [a temporary] visa.
On 28 June 2009, he returned to India proposing to resume his business activities and in the hope that he would be safe from further harm that the assailants had threatened against him, Instead he learnt that the assailants had threatened to kill him and were determined to do so, apparently as they did not want him to give evidence against the criminal proceedings,
Accordingly, the Applicant returned to Australia on 11 August 2009.
Attached also was an undated and unsigned statement written in the first person by the first applicant outlining much of the claims in the legal submission for ministerial intervention.[6] It is noted that the first applicant wrote that he was fearful to return to India given the outstanding proceedings, which have now been dismissed by the court because he could not present himself in court because of the threats against him, his wife and son, and the extremely high incidence of crime in Chandigarh. The first applicant also claimed he learnt the assailants belong to a cult and their cult members are desperately looking for him.
[6] AAT Folios 125-126.
Another attachment included a written witness statement by [Mr C] dated 8 March 2013 claiming to be the elder brother of the second applicant.[7] The statement iterates there was a property dispute between the first applicant and a third person leading to violence and that the witness interrupted the beatings of his brother-in-law. By way of summary, it is also claimed by the witness:
· People were asking about his sister’s family when they returned in 2009 and he discovered men were offered money to monitor his house so as to abduct the first applicant;
· He further claimed vandalism at the first applicant’s workplace and a plot to trap the first applicant and that the witness has repeatedly heard threats made against the first applicant by different people;
· The witness claimed they contacted the police on multiple occasions ‘but it has proven to be moot’;
· The harassment, it was also claimed, included threats conveyed to the second applicant’s father who was traumatised and hospitalised (medical documents were attached);
· The police advised the witness and other family members not to pursue those conveying threats or the group will start to target them specifically;
· The group of people threatening the applicants and their family raised funds from Naxalite movements for extortion and kidnapping and are unofficially affiliated to the Communist Party of India;
· The most recent incident occurred only three or four weeks ago when a person approached the witness to enquire about the first applicant’s return and insisted the witness contact them when the applicants returned and if he did not, the witness and his family may be harmed; and
· The witness contacted the police but would not file a formal complaint because there were not enough grounds for a complaint and because the police said the group had strong political connections across the nation and no case would stand during a trial because they will make bail.
[7] AAT Folios 177-186.
A statement by the second applicants’ younger brother dated 8 March 2016 was submitted as a witness. The witness elaborated on the applicants’ behalves that ‘the group’ of assailants is a cult of radical members who believe that God created the caste system and that they have taken it upon themselves to implement the system through illegal activities. He claimed they called themselves ‘Kharkus’ and that they recognise the Singh or Kshatriyas castes which are affiliated with the Communist Party of India (CPI) and the CPI (Marxist).[8]
[8] AAT Folios 174-175.
A further witness statement claiming to be from the second applicant’s elder sister is submitted. It outlines that the witness had been subjected to goons sniffing for her family’s whereabouts, their insults and threats of torture and killing.[9]
[9] AAT Folio 176.
Also attached was an excerpt from the Ministerial Review summary regarding the applicants dated 25 July 2013, stating the applicants’ case did not meet the guidelines as being unique or exceptional circumstances.[10]
[10] AAT Folios 144-145.
On 10 March 2016, the applicants appeared before the Tribunal to give evidence and present arguments as to the reasons they are owed Australia’s protection obligations. They were assisted by their representative from [Law Firm 2].
Evidence from a witness claiming to be the second applicant’s elder brother, [Mr C] from [Punjab], provided oral evidence to the Tribunal. He was assisted by an interpreter in the Hindi and English languages.
During the hearing, a request was made by the representative for the presiding Member to recuse himself on the basis of apprehended bias.
The applicants’ representative wrote to the President of the Tribunal on 11 April 2015 seeking the recusal of the presiding Member. The request was refused and the applicants were invited to provide a post-hearing submission by 29 April 2016.[11]
[11] AAT Folios 209-216.
Dated 29 April 2016, the applicants’ representative provided a post-hearing submission for the Tribunal to consider. This submission contained additional information to support the applicants’ claims.[12] This included:
· That the first applicant instructed the representatives to inform the Tribunal that, during the course of the applicants’ engagement in respect of [the primary applicant]’s ministerial request, he was not provided any advice about lodging a protection visa.
· An attached email dated 23 June 2013 claiming to be from [the primary applicant] and ’[Ms D]’ at [Law Firm 1] which states:
It is pertinent to mention that the visa officer at DIAC compliance office, during the interview mention that the option of ‘Protection Visa” is still open for me and my family as per the circumstance explained to him (the attack on me in India).
He advised me to consult the above protection visa option with you (as my immigration solicitors).
· The legal submission goes on to state by the representatives that they were instructed their clients that it was not until then that [the primary applicant] received a letter from [Law Firm 1], in response to the 23 June 2013 email, with advice pertaining to a protection visa application;
· The absence of state protection arising from a lack of police protection, citing Refugee Review Tribunal (RRT) decisions numbered 1002062 and 1005461, both from 2010, and country advice on India from the RRT (IND38565, dated 12 April 2011) about collusion between police and perpetrators of land grabs;
· That internal relocation within India is not reasonable citing RRT decisions 1303847 from 201233 and quoting the ability to trace applicants across India.
· That resettlement of the applicants to Nepal is not feasible, even if legally permissible, as the Treaty between both countries would allow the free movement of the applicants’ alleged persecutors and relocation to Nepal would be unreasonable to the applicants given the difficulty of access to health care or to livelihoods.
[12] AAT Folios 218-222.
On 3 May 2018, the applicant wrote to the Tribunal to reiterate his claims in a lengthy email. It stated that he came to Australia to live his life without fear of any danger and to seek a normal life. The applicant claimed his mind has almost reached breaking point as he has [some medical conditions], and his wife is severely depressed. He added his blood pressure keeps rising above normal and he cannot afford groceries and medical needs as he does not have work rights. He added that he is isolated from his family and has no friends and cannot have vacations.
No further submissions were provided to the Tribunal at the time of making this decision.
ASSESSMENT OF CLAIMS AND FINDING
Country of reference
The applicants have claimed to be citizens of the Republic of India. They provided certified copies of their passports issued by the relevant Indian authority.[13] With no evidence to the contrary, the Tribunal finds the applicants are nationals of India for the purposes of the Convention, and that India is their receiving country for the purposes of complementary protection.
[13] < [File number deleted]> Folios 58-94.
For the same reasons above, the Tribunal finds the applicants are nationals of India for the purposes of the third country protection provisions relating to ss.36(3), (4), (5) and (5A) of the Act.
Although the Tribunal explored with the applicants whether they could resettle in Nepal under ss.36(3), (4), (5) and (5A) of the Act, the Tribunal has assessed the applicants’ claims for protection against those matters dispositive to s.36(2)(a) and s.36(2)(aa).
Membership of the same family unit
Spousal couple
It was claimed in both the written and oral claims that the first applicant and the second applicant were in a spousal relationship; that they were married in India in 1993; that they have one child between them; and that they have travelled to and from Australia together since 2002. With no evidence to the contrary, the Tribunal accepts the first and second applicants are in a genuine spousal relationship and that the second applicant satisfies r.1.12(4)(a) of the Regulations, as she has membership of the same family unit as the first applicant for the purposes of this application for review.
Credibility findings
The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that his fear is for the reasons claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself.
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
… care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’.[14] However, the Handbook also states (at [203]):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
[14] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at [348] per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547).
The Tribunal has also considered the published guidelines of the Administrative Appeals Tribunal in relation to credibility:
9. Findings made by the tribunal on credibility should be based on relevant and material facts. What is capable of being believed is not to be determined according to the Member’s subjective belief or gut feeling about whether an applicant is telling the truth or not. A Member should focus on what is objectively or reasonably believable in the circumstances.
10. The tribunal should make clear and unambiguous findings as to the evidence it finds credible or not credible and provide reasons for such findings.
11. In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true. If, on the other hand, the tribunal is able to make confident findings as to particular events, it is not obliged to consider the possibility that its findings of fact may not be correct.3 The rejection of some of the evidence on account of a lack of credibility may not lead to a rejection of an applicant’s claim for a protection visa. For example, when assessing an applicant’s claims as to whether they meet the definition of refugee, if an applicant is disbelieved as to his or her claims, the tribunal must still consider whether, on any other basis asserted, a well-founded fear of persecution exists.4 However, the tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.[15]
Accepted claims
[15] Guidelines on the Assessment of Credibility, AAT, July 2015 <>
Based on the consistency between the 866 forms submitted by the applicants and their testimony during the hearing, the Tribunal accepts the following to be credible:
The first applicant was born in [year] in the union territory of Chandigarh in India; and the second applicant was born in [year] in the Indian state of Haryana. It is accepted they were married in 1993 and remain married and that they have a son who was an international student in Australia at the time of application.
It is accepted that the first applicant has belonged to the Jain religion or faith tradition since birth and that his wife was a Hindu who became a Jain when she married.
It is also accepted that both the applicants belong to the Indian caste known as Bania which is considered among the higher or more prestigious castes or lineages and who are historically and contemporaneously connected with wealth and influence along with the Brahmin caste.
It is accepted, as claimed in the scheduled hearing, that the first applicant graduated with a [degree] and worked in his family business after he completed his studies, before establishing his own business in or around 1997.
As discussed in the scheduled hearing, there is considerable evidence, including written and oral evidence, media reports and a witness statement, that the first applicant had experienced a severe beating leading to hospitalisation in April 2008. As the delegate noted, the media reports provided varying accounts about the number of assailants, but the Tribunal concurs with the delegate that accounts of the event appeared to be otherwise relatively consistent regarding the timing, the place and the manner of the attack. Based on this compelling evidence it accepts the following regarding the background of the applicants’ claim.
The Tribunal accepts the first applicant’s claim that he believed that in good faith he purchased a property [in] the Indian state of Punjab from a Sikh man named [Mr A] in 2005 and was unaware [Mr A] raised a loan of about [amount] Indian rupees (or about [amount] Australian dollars) against the same property from a financial institution. It is also accepted that when he learnt of this irregularity he contacted [Mr A] who insisted the first applicant return the property to him while the first applicant demanded [Mr A] repay the loan or refund the purchase of the property in question.
The Tribunal accepts that the first applicant attempted to resolve the matter but was unable to do so and that matters escalated into violence when on 14 June 2008 the first applicant was physically attacked outside his house. It is accepted that his wife was a witness and that at least two men, [Mr A] and [Mr B], were involved in the attack.
It is further accepted the first applicant required hospitalisation; that the harm amounted to being seriously or significantly physically harmed; and that the applicants made a complaint to the police that led to two of the assailants, [Mr A] and [Mr B], being arrested and charged.
It is also accepted that the applicants were in Australia when the court proceedings against the assailants ended in acquittal due to the lack of evidence in 2013, as claimed by the applicants. It follows that the Tribunal accepts the assailants remain in the wider Indian community without being convicted or sentenced or otherwise punished for their attack on the first applicant.
Credibility concerns and adverse credibility findings
While it is accepted that the applicants had genuinely been harmed in the past when he was attacked in 2008 by at least two Sikh men, the Tribunal makes the following adverse credibility findings based on the following credibility concerns.
Of particular credibility concern to the Tribunal has been the applicants’ return trip to India after the accepted 2008 incident of significant physical ill-treatment by [Mr A and Mr B] when they remained in Chandigarh for six weeks. Both the first and second applicants claimed that they returned because they believed the situation had calmed down. The first applicant claimed that when he arrived he was told the assailants planned to kill him in the next few days as they did not want to him to provide evidence against them in court. He claimed he sold the property which was part of the dispute and repaid the loan and then departed in August 2009 with the second applicant. The second applicant claimed that while she saw the assailants attack her husband in 2008, she did not experience any threats in 2009 as they kept inside as much as possible, although she noticed people coming to the door asking for her husband’s whereabouts and that she felt scared and described the experience as difficult to articulate due to painful memories. However, when the Tribunal enquired into the reasons the second applicant made a second return trip in 2011 to India, she claimed she did so because it was assumed the general atmosphere had calmed and because she did not return with her husband – the focus of the assailants’ anger. The second applicant also claimed that she was not harmed. Had the second applicant been deeply affected by the 2009 threats and harassments when she returned to India for the first time after her husband’s attack, it would be reasonable to expect her not to have returned to India, let alone Chandigarh, at all. This specific return trip by the second applicant further undermined the first and second applicants’ claims that they had been threatened, harassed or monitored at all in 2009.
Of further concern to the Tribunal was the significant delay in the applicants applying for protection visas, in the context of their abovementioned travel history. The Tribunal notes that it is legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvaduraiv Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347).
The Tribunal accepts the applicants’ claim that he was seriously harmed and hospitalised in April 2008 but did not apply for a protection visa until April 2014 – a significant four year delay. During that period of time, the applicants’ last [temporary] visa expired in February 2011; they had unsuccessfully applied for two substantive [temporary] visas; their last substantive visa expired on 31 July 2012; they appealed to the [Tribunal]; and they unsuccessfully sought ministerial intervention on June 2013 with the assistance of a law firm. As discussed in the hearing, it appeared the applicants applied to remain in Australia by applying for protection visas as their migration options had considerably narrowed. When the Tribunal enquired about the reasons the first applicant had not applied for a protection visa at a much earlier point in time since the 2008 incident, the first applicant claimed that he was not aware of protection visas as a migration option and that his law firm did not inform him, although the incident of harm is detailed in that submission. The first applicant claimed in the hearing that he was never told about protection visas until he went to the compliance section of the Department after he lodged his ministerial intervention application. In the representatives’ post-hearing submission, the first applicant instructed them that it was on 23 June 2013 that he was informed about protection visas and attached an email to support the claim. The Tribunal notes that the email provided appears to indicate that the first applicant was aware that the protection visa ‘is still open to me and my family as per the circumstances explained to him (the attack on me on India)’. Notwithstanding the curious change between the first and third person and the change of font, the email indicates to the Tribunal that the applicant was aware of the option to apply for protection visas prior to this meeting as it states ‘still open to me and my family’. As discussed in the hearing, it is very unlikely that the applicants, who had used migration agents continuously as indicated in their ministerial intervention request, were not aware of their migration options. Even if this were the case, it would not explain the further delay in applying for protection visas between June 2013 and April 2014 – which, in itself, was a considerable delay and indication of a further lack of genuine, deep or urgent fear of persecution. The Tribunal holds no weight on the applicant representative’s attempt to provide the oral argument that [Law Firm 1] did not inform the applicants about this migration option due to them not being a protection visa specialist. In this regard, the Tribunal finds that the applicants’ explanations and arguments about the reasons for their substantial and considerable delay in applying for protection visas lack credibility and plausibility and they have further casted doubts into the Tribunal’s assessment that they did not have any genuine, urgent or deep subjective fears of persecution.
Taking together the Tribunal’s serious credibility concerns regarding the applicants’ travel and visa histories, the Tribunal finds that the applicants have not provided any credible or plausible evidence to the Tribunal that they held either genuinely, deeply or urgently fears of returning to Chandigarh, their home area, or India more generally. As the Tribunal is required to provide the applicants the benefit of the doubt, the Tribunal does accept that since 2008, after a violent incident, the applicants did hold some actual fears regarding the criminals who seriously and grievously assaulted the first applicant. However it does not accept these actual fears were deeply or urgently personally held fears of serious harm and they have invited the Tribunal to consider that their claimed essential and significant reasons for that fear of harm have been fabricated or embellished.
The Tribunal also makes further adverse credibility findings regarding ongoing threats and questioning about the applicants’ whereabouts by the assailants and regarding claims that the police did not act on these actors’ complaints. The applicants’ written and oral claims have claimed that during their return trips to India in 2009 and 2011 rumors of threats, direct threats and ongoing harassment by people demanding information about the whereabouts of the applicants were made. The second applicant provided testimony that she heard people come to the door of her family’s residence seeking the applicants. There are three witness statements and the oral evidence of the second applicant’s eldest brother, including claims that the father of the second applicant had a [medical condition] triggered by threats and caste-based insults. The second applicant even claimed that [Mr A] was seen at the funeral of the first applicant’s father. The Tribunal notes that the applicants and the witnesses have presented these claims consistently and in a detailed manner and the Tribunal accepts there is plausibility to these specific claims given the accepted 2008 incident of serious harm.
However, in the context of the Tribunal’s findings about the applicants’ travel and visa histories, it is unable to overcome its significant suspicions that such ongoing threats, acts of intimidation, insults, property damage and monitoring are not credible. It is the assessment of the Tribunal that it is not credible to have claimed, on the one hand, to have been seriously harmed in 2008, while on the other hand for both applicants to return to Chandigarh in 2009. The Tribunal is further invited by the applicants to cast doubt on the credibility of these specific claims when they claimed to have been threatened and frightened and warned in 2009, yet the second applicant chose to return again in 2011. Furthermore if these threats and harassment had been ongoing since 2009, it would have been reasonable not to have significantly delayed in applying for protection visas until 2014. The Tribunal also finds that it lacks consistency to claim that the police and courts have acted on a 2008 compliant leading to the assailants being charged and arrested only to claim that the police would not act against further complaints related to the same people due to corruption or other claimed reasons.
These credibility concerns, cumulatively considered, are not trivial or minor matters and are assessed by the Tribunal to be so significant that it does not accept either the applicants’ written and oral evidence, the witnesses’ written statements or the oral evidence heard at the scheduled hearing that the ongoing threats, insults, property damage and monitoring since their return trip to India in 2009 actually occurred. Neither are the Tribunal’s adverse credibility findings assuaged by the provision of medical information regarding the [medical condition] of the second applicant’s father and accordingly the Tribunal does not accept that any cult, gang or other criminals triggered his deteriorating health situation through insults relating to the applicants’ and witnesses’ claims. Nor does it accept the applicants’ and the witnesses’ claims that the witnesses complained to the police about threats and intimidation relating to the applicants’ claims and the police did not act for the reasons claimed.
The Tribunal finds specific claims had been submitted to embroider and augment the applicants’ otherwise credible claims about the 2008 incident of serious harm arising from a property dispute. In making these adverse credibility findings, the applicants have invited the Tribunal to consider that other aspects of their claims to have a real chance of serious harm for a Convention reason or a real risk of significant harm, if returned to India, have been exaggerated, embellished or embroidered, not because the applicants have any strong or compelling reasons to seek Australia’s protection but because their migration options to remain in Australia had significantly narrowed.
Essential and significant reason for persecution: the applicants’ claimed nexus reasons
It has been claimed by the applicants that they fear persecution if they were to return to Chandigarh based on their accepted caste membership as Bania and based on the applicants’ accepted religion as Jain. The applicants have argued that their fears of persecution are for these essential and significant reasons as their attackers think Banias are evil and Banias should no longer be part of society and they are targeted for all their historical rage. It is noted that the applicants’ representative argued that these nexus reasons have amplified their real chances of serious harm.
Jainism or Jain Dharma is one of the oldest religions in India, going back to at least the third century and possibly the eighth century BCE (Before the Christian Era). As a Dharmic religion, it has co-existed with Buddhism and Hinduism in both ancient and mediaeval India and shares similar concepts or doctrines about karma and rebirth but has different cosmologies and sacred texts. Followers of Jainism, known as Jains, are known for their non-violence, vegetarianism and asceticism which progress the soul towards its ultimate goal.
As outlined in the 2015 DFAT report on India, given the 2001 census stated that 80.5 per cent of the population identified as Hindu, 13.4 per cent Muslim, 2.3 per cent Christian, 1.9 per cent Sikh, and less than one per cent each identified as Buddhist, Jain or others and that the Central Government established a National Commission for Minorities (NCM) in 1992 to evaluate and report on the progress of minorities in India, including Jains, the Tribunal accepts that Jain are a religious minority in India and that the Jain do make up a majority in any Indian state or territory.
The Tribunal was able to locate some country information that estimates the number of Bania people living in India as approximately 25 million and that Uttar Pradesh has 4.2 million, Rajasthan 4.5 million, Gujarat 2.3 million, Andhra Pradesh 2 million, Maharashtra 1.8 million, Madhya Pradesh1.5 million, Delhi1.4 million, West Bengal 1.3 million, Haryana 950,000, Bihar 790,000, Karnataka 280,000, Punjab 270,000, Orissa 250,000 and Tamil Nadu 220,000.[16] The same country information also concurs with the first applicant’s description of Bania caste as associated with the mercantile classes and who are perceived to be relatively wealthy.
[16] Banaihttp <>
As the country information provided by the applicants’ representative indicates, Bania and Jain families predominate in running Indian cricket, the media (The Times of India, The Hindustan, and Zee TV are controlled by Banias and Jains), steel companies (Essar, ArcelorMittal, Ispat, Jindal Steel and others) and vehicle manufacturing (Hindustan Motors, Bajaj Auto). Historically it is worth noting that one of the founders of independent India, Mahatma Gandhi, belonged to the Bania caste, although he was a Hindu and not a Jain by religion.[17]
[17] AAT Folios 97-98; ‘When will the Brahmin-Bania hegemony end?’ Aakar Patel, LiveMint, 28 August 2009, <
This country information does go some way in supporting the applicants’ claims that their religion and caste amplify or heighten them being a target for bias or prejudice against higher castes or a minority religion associated with higher castes and this may have been embedded in the motivation by the applicants’ assailants as either Sikhs or as Naxalites.
However, the Tribunal does not accept these reasons based on race, religion or a combination of both are the essential and significant reasons for fears of persecution, as required by s.91R(1)(a). Section 91R(1)(a) provides:
For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and …
The possibility of multiple reasons for harm caused has been particularly evident in cases where conduct involving self-interest such as revenge or extortion is involved.[18] As was observed in Rajaratnam v MIMA, ‘extortion can be a multi-faceted phenomenon exhibiting elements both of personal interest and of Convention-related persecutory conduct’.[19] Therefore, it is erroneous to apply a simple dichotomy of whether the perpetrator’s interest in extortion or other conduct is personal or refugee-related.
[18] See, for example, Rajaratnam v MIMA (2000) 62 ALD 73, applied in Ahmed v MIMA [2000] FCA 1571 (Mathews J, 8 November 2000); Kathiravelu v MIMA [2000] FCA 1279 (Lindgren J, 11 September 2000); MIMA v Sarrazola (1999) 95 FCR 517; SZBZJ v MIMIA [2004] FMCA 728 (Lloyd-Jones FM, 11 November 2004); and SHKB v MIMIA [2004] FCA 545 (Selway J, 5 May 2004), where Selway J held that the Tribunal in attempting to draw a distinction between a Convention-based reason and retribution committed jurisdictional error.
[19] Rajaratnam v MIMA (2000) 62 ALD 73 at [48] per Finn and Dowsett JJ. Justice Moore also acknowledged that the existence of personal or business attributes of the victim did not remove the possibility that other Convention-related issues might be factors which influenced the conduct or motivation of those engaging in extortion (at [10]). See also MIAC vMZYRI [2012] FCA 1107 (Jagot J, 16 October 2012) at [33] where the court stated that s.91R(1) does not permit a decision-maker to disregard a claim on the basis of an unstated assumption that there is a simple dichotomy between persecution by reason of self-interest and for a Convention reason. In that case, local villagers had killed the claimant’s father and taken his land, which continued to be occupied by a local commander. The Court found that the Reviewer had operated on the basis of an impermissible dichotomy between the self-interested motives of the commander who had benefited from the persecution of the claimant’s father, and the underlying religious reasons motivating the villagers to continue to persecute the family and to enable the oppressive conduct of the local commander. Similarly, see SZQII v MIAC (2012) 126 ALD 479 at [22] where the Court held that the Reviewer’s finding that the motivation of a gang was to obtain money failed to address the claim that the appellant was a target for extortion because he was a young Tamil male. However, contrast DZACC v MIAC [2012] FMCA 314 (Cameron FM, 20 April 2012) for an example of circumstances where it was open to the Reviewer to consider multiple motivations but conclude that the harm was motivated by a non-Convention reason. The claimant had alleged he would be persecuted by the family of his girlfriend and the Reviewer found that although his religion and caste may be reasons that the family found him unsuitable, they were not the reasons that he was targeted by the family: the claimant was targeted because her family objected to the relationship. The Court held that the Reviewer had not applied a false dichotomy or failed to take into account multiple motivations and that the finding was open to the Reviewer.
However, the Tribunal finds that the applicants were late to attribute specific Convention reasons for their persecution and when it was presented as an argument, they did so in a confusing and inconsistent manner, which invited the Tribunal to consider the credibility of these claims.
The Tribunal notes that there is nothing in the submitted media reports from 2008 that indicated the first applicant had been targeted based on his religion or caste, only that there was a disputed property deal. Secondly, the applicants’ written statement for the Minister to personally intervene in granting them [temporary] visas did not mention any specific caste or religion, but vaguely stated that ‘After the dismissal of the court proceedings against the assailants, I learnt that the assailants belong to a cult and now the assailants & their cult members are desperately waiting for me & my family in India to kill’. Thirdly, there is no elaboration of the motives pertaining to any cult, religion or caste in the submitted charge sheet. In the applicants’ submitted statutory declaration dated 22 July 2014 they introduce members of ‘the group’ in terms of not only hating the applicant because he reported them to the authorities and forced them to face charges, but because they see the applicant as representative of all that is wrong in their lives because he was Bania and Jain. He also mentions the assailants as a gang and that the police were afraid of such gangs. Fourthly, while the applicants have argued that they were not informed by their migration lawyers about protection visas to account for the lack of detail in the ministerial intervention request, the Tribunal has already made a finding that it does not accept this explanation. The Tribunal also notes that further Convention reasons were elaborated on in the legal submission dated 7 March 2016, including that the applicants have a well-founded fear of persecution based on caste-based targeting by ‘armed criminals gangs’ as a widely known phenomenon in Chandigarh. For example, the country information provided by the applicants’ representative through footnotes did not elucidate that gangs were targeting castes, although it did mention Naxalites were reported to have kidnapped, indoctrinated, extorted and even killed students in areas where they are active (no mention of Naxalite violence in Chandigarh, Haryana or Punjab), and provided examples of higher caste violence towards and exclusion of lower caste members. Accordingly, the Tribunal finds the country information does not support the assertion that caste-based targeting of higher classes occurs, outside of the Naxalite examples of violence which are not widespread.
However, of particular concern has been the very confusing picture of the assailants’ motivation.
The leitmotifs of caste-based and religious-based targeting of the applicants are only further elaborated by the late submitted witness statement from the second applicant’s younger brother, dated 8 March 2016. The witness elaborated on the applicants’ behalves that ‘the group’ of assailants is a cult of radical members who believe that God created the caste system and that they have taken it upon themselves to implement the system through illegal activities. He claimed they called themselves ‘Kharkus’ and that they recognise the Singh and Kshatriyas castes which are affiliated with the CPI and the CPI (Marxist).
This elaboration is then compounded by the second applicant’s elder brother claiming that the assailants were Naxalites whose affiliation to the Communist Party of India allowed them the freedom to conduct business without police trouble due to corruption and political influence. He further claimed ‘[t]hey boast about their cultural purity and enforced that inter-caste relations are abhorrent to society’, viewing business people as honey pots for extortion, blackmail and threats of ‘accidents’. During the hearing, the eldest brother of the second applicant provided oral evidence as a witness in which he reiterated that [Mr B] wore a turban as a Sikh; assumed he and [Mr A] were members of the Kshatriyas caste; and that they will be able to find anyone throughout India through their connections with the CPI and the Naxalite movement.
During the scheduled hearing, the first applicant was provided with an opportunity to concisely articulate the fears he held based on Convention grounds. He claimed variously that he and his wife were Jain and belonged to the Bania caste; that the assailants were Sikhs as [Mr B] wore a turban; that relations between Banias and Sikhs were poor, even though there are some good ones; that the Sikhs were involved in the Naxalite movement; and that Harkistan Singh Surjeet, a prominent communist Punjabi who served as the General Secretary of the Communist Party of India, had sleeper cells in India and influence throughout the country; and that all his complaints about the assailants will be ignored as the two major Indian political parties – the Indian Congress Party and the Bharatiya Janata Party (or BJP) – and the Sikh parties collude with the Naxalites and the police.
It was put to the first applicant that he presented an implausible and speculative as well as confusing conspiracy to the reasons the applicants were unable to return either to their home area of Chandigarh or anywhere else within India, which is a vast and populous country. The first applicant insisted the picture he provided of India is correct. As discussed in the hearing, the country information indicates that the Indian government has been active in fighting and killing Naxalite members;[20] however he claimed that the government is not telling the world about the real number of killings undertaken by the Naxalites or their influence. Asked if the first applicant is sure the assailants are fanatics, he responded that ‘they might be’ and that they yelled threats and ‘caste insults’ at his family members after their acquittal. He also insisted that the assailants are powerful given the widespread political connections they have and because of the fear they yield over the police and others. However the first applicant was unable to explain their arrest and charges, given his contention the assailants had been so politically powerful or influential through corruption.
[20]DFAT Country information Report India, 15 July 2015, at 2.33: Leftist insurgents referred to as ‘Naxalites’ have conducted an armed campaign since 1967 in India’s east ‘Red Belt’ states, namely Chhattisgarh, Odisha, Maharashtra, Jharkhand, Uttar Pradesh, West Bengal, Andhra Pradesh and the newly created state of Telangana. Naxalite activity has included violent attacks on security forces and civilians. The Central Government launched a nationwide initiative in 2009 called the Integrated Action Plan (IAP), aimed at dealing with the Naxalite problem. In December 2011, the government reported that the IAP had succeeded in reducing the number of Naxalite-related deaths and injuries by nearly 50 per cent from 2010 levels. However, in 2013 Naxalite groups still claimed responsibility for 192 deaths, nearly half of all terrorism-related deaths in India for that year.
The Tribunal also relevantly notes that the second applicant was asked about the reasons she understood she could not return to India. She credibly stated that her parents said to her not to return to her home country; that it not safe as her father had been threatened; and that her sister and brothers tell her people are looking for them all the time. The second applicant further stated that they wanted her husband because of a dispute over property and made no mention of any political party or radical links.
100. The Tribunal acknowledges, as raised by the applicants’ representative, that applicants for protection are not required to have exact knowledge of events in their homeland.
101. However the applicants appear to have conflated their assertion that the assailants are Sikhs, on the basis they have Sikh names, with the idea of the assailants having corrupt influence throughout all of the major political parties in Chandigarh, Punjab and Haryana as well as India more generally, and further associating them with the violent and/or corrupt elements of the Maoist or Marxist or Naxalite movements. The applicants’ claim was further undermined by their often ambivalent responses to the Tribunal’s questions, with that the Sikhs ‘might be fanatics’ and speculating that some Sikhs are good but some have killed, while the second applicant did not advance any political, caste or religious motives to the assailants at all.
102. Neither were the claims enhanced by the applicants’ witnesses when they claimed that Naxalites and Marxists wanted to consolidate the role of castes on behalf of Kharkus or Khalistani militants or Kshatriyas caste members when Indian communists are typically secular and egalitarian by ideology and oppose both religious extremism and India’s caste-driven foundations. As mentioned above, Naxalite or Left Wing Extremist (LWE) violence is increasingly marginalised as a feature of contemporary Indian life and Sikh fanatics are generally affiliated with one of the Sikh parties such as Akali Dal, further indicating to the Tribunal that the applicants’ claims had been exaggerated to augment their otherwise genuine claims about past harm. The Tribunal also notes that the first applicant, who had principally elaborated on these nexus claims, was a university educated graduate who spoke English, which invited the Tribunal to consider that his level of knowledge about Indian current affairs was commensurately stronger than his often speculative and vague responses to the Tribunal’s questions. Even where there was some consistency between the first applicant’s claims and the witnesses’ written and oral evidence, this consistency had been significantly undermined by the Tribunal’s extensive credibility concerns about the essential and significant reasons for the applicants having a well-founded fear of persecution.
Real chance of serious harm or a real risk of significant harm for a nexus reason
103. In the context of the applicants’ travel and visa history and these additional credibility concerns, the Tribunal finds that the essential and significant reasons for their persecution were developed weakly and vaguely into a cluster of nexus reasons based on some actual religious and caste aspects of their claims that were significantly embroidered or embellished by the applicants and the witnesses. The applicants put forward speculative and often mutually unsupportive claims based on political and social reasons, including being opposed to Sikhs, Indian communist parties or movements, or any of the major parties, and being perceived to be wealthy, as the reasons they were targeted on an ongoing basis and they do not satisfy s.91R(1)(a) in this regard.
104. Accordingly, while the applicants had a level of genuine fear of being harmed by criminals, the Tribunal assesses that the applicants did not have any deeply or urgently personally held fears for any of these Conventions reasons pertaining to the applicants’ actual ethnicity, their religion, their caste, any membership of a particular social group, or their political opinion, imputed or otherwise. Neither did they have a level of genuine fear for any Convention reason related to a non-Convention reason such as being perceived as being wealthy, as persons involved in property disputes, or as persons perceived to have wronged gang members, as outlined above in its findings about s.91R(1)(a), either at the time of applying for protection visas or at the time of the scheduled hearing.
105. Neither does the Tribunal accept the applicants have any subjective reasons to hold well-founded fears of persecution based on these same Convention reasons, if they were to return to either Chandigarh or India more generally, either now or into the foreseeable future.
106. As to the objective element to the requirement that an applicant must hold a well-founded fear, the Tribunal assesses none of the submitted or the available country information, including the most recent 2015 DFAT report on India and the December 2016 DFAT Thematic Report on the Indian state of Punjab, involves information about the conditions in India whereby members of Jainism or Bania caste members, for any related Convention reasons, have a real chance of serious harm. While the Banias are singled out for being perceived to hold much power in India, there is insufficient information on Jains or Bania caste members being targeted for harm for a finding they face serious harm through discrimination or caste- or religious-based violence, even by gangs or caste community leaders. That is not to diminish the country information that supports that widespread communal violence based on caste or religion in either Chandigarh or throughout India taking place. However, it is the Tribunal’s assessment that available country information does not support the applicants was targeted for a real chance of serious harm solely or considerably, either directly or indirectly, because they are Jains and Bania caste members or a combination of both. Therefore as the harm they fear is not essentially and significantly is not for reason mentioned s5J(1)(a), the applicants does not satisfy s.91R(1)(a).
107. In considering these same Convention grounds, as discussed above in the context of the Act’s complementary protection provisions and its findings above, the Tribunal finds that the applicants do not have a real risk of significant harm of any kind arising from the applicants’ race, ethnicity, religion, caste, political opinion, imputed or otherwise, or any related memberships of particular social groups. In this regard, the applicants do not satisfy s.36(2)(a).
Non-convention grounds findings
108. It is accepted that some actual harm occurred over a property dispute between the applicant and at least two criminals and that the applicants do hold some actual, albeit not very deep or urgent, fears of persecution arising from this dispute and their willingness to complain to the police leading to arrests and court proceedings. For that reason it has also been argued that the applicants face a real chance of serious harm because they are actually or perceived to be wealthy, they are involved in property disputes, or they are persons perceived to have wronged gang members or other criminals, including by seeking police intervention.
109. Firstly, the Tribunal does not accept any of these stated reasons meet the criteria for cognisable membership of particular social groups set out in Applicant A v MIEA,[21] as the victimhood of the applicants in this particular case is substantially based on criminality and not based on the applicants’ actual or perceived wealth, their involvement in the property market, their engagement of India’s protection measures, or on a combination of these reasons.
[21] Applicant A v MIEA (1997) 190 CLR 225 at 307 per Kirby J.
110. Secondly none of these social groups relate to any of the other four nexus reasons mentioned in the Refugees Convention.
111. Thirdly, based on the adverse credibility findings about the applicants’ travel and visa histories, and because the Tribunal does not accept the applicants’ and the witnesses’ accounts that the applicants were subject to ongoing threats since 2009 or their claims regarding being denied state protection by the police, the Tribunal assesses that the applicants have embellished their claims for protection. The applicants attempted to argue that they face a real chance of serious harm arising from the applicants seeking the police and court proceedings against a criminal who tried to defraud the applicants and physically assaulted the first applicant, and because the criminal matter was acquitted leaving the assailants in the community. It is accepted that the applicants hold a level of subjective fear but that level is assessed as being shallow, lacking depth or urgency. As discussed in the hearing, given the considerable passage of time – almost ten years – and because the applicants did not experience any harm during their return visits to Chandigarh, it is not plausible that such criminals would remain fixated on the first applicant when the criminal matter was acquitted. For these reasons, the Tribunal finds that chance of either of the applicants being seriously harmed by the assailants if they were to return to either their home area or India more generally, is remote and insubstantial and not equal to or more than a real chance and accordingly does not satisfy s.36(2)(a).
112. With regard to the Act’s complementary protection grounds, as the ‘real risk’ test is the same as the ‘real chance’ standard, the Tribunal does not accept the applicants face a real risk of significant harm as required by s.36(2A), arising from any of the applicants being victims of crime, being actually or perceived to be wealthy, being involved in property disputes, or as persons perceived to have wronged gang members or other criminals, including by seeking police intervention, or for a combination of these matters.
113. For completeness, the Tribunal has also considered the residual claim that the applicants face a real chance or a real risk arising from the high level of crime. This claim was advanced in the context of the levels of police corruption failing to provide the applicants a suitable level of protection while the assailants remain in the community without having been convicted or sentenced. The Tribunal notes that the applicant did not advance this claim during the hearing. According to DFAT, crime rates across India vary. Homicide rates in India are comparable with other South Asian countries (3.5 per 100,000 people). Violent crimes against women occur frequently. Notwithstanding the number of incidents mentioned, in absolute terms the sheer size and diversity of India means most Indians live their lives with a relatively low risk of violence. Given the applicants will return to Chandigarh with each other and the support of their extended family, and based on the available country information, the Tribunal assesses that neither of the applicants, including the second applicant as a woman, will face a chance of serious harm arising from general levels of crime in India that is more than a remote or insubstantial chance. For these reasons, and by noting this residual claim lacks nexus reasons under the Refugees Convention, the Tribunal finds that the applicants do not have a real chance of persecution based on the applicants’ fear of crime in India if they were to return to Chandigarh specifically or India more generally, either now or into the foreseeable future.
114. With regards to the Act’s complementary protection, as the ‘real risk’ test is the same as the ‘real chance’ standard, the Tribunal does not accept the applicants face a real risk of significant harm as required by s.36(2A), arising from levels of crime in India.
Other matters
Recusal request
115. An allegation of apprehended bias and the application for this Tribunal member’s recusal were raised during the scheduled hearing. This allegation was raised by the applicants’ representative during the testimony of the second applicant. The representative alleged bias based on the combination of the Member’s tone of questioning during the second applicant’s testimony, lack of consideration regarding the second applicant’s emotional distress and the Member’s ignoring earlier requests by the applicants’ representative to assist the Tribunal. This Tribunal Member suspended the hearing for around ten minutes to consult a Senior Member.
116. In resuming the hearing and with the assistance of the interpreter, this Tribunal Member outlined his reasons for not recusing: the Tribunal cited a recent decision by the inaugural President of this newly amalgamated Tribunal, and Federal Court Judge, the Hon. Justice Duncan JC Kerr, Chev LH, in which a request for recusal was rejected on the basis that the Tribunal is entitled to conduct questioning to test claims, even robustly. The decision’s AAT number is 1419105 dated 29 January 2016.[22]
[22] 1419015 (Practice and Procedure) [2016] AAT 3075 (29 January 2016) < Extract: 59. ‘It has not been suggested by Parish Patience that Senior Member Raif was told anything by Mr Jones about the Applicant’s fragile mental state. However, even had the Senior Member been so advised, it would have remained her duty, with sensitivity and respect for the Applicant’s dignity, to test, even robustly, the Applicant’s asserted reasons to be entitled to the visa she sought notwithstanding those reasons were linked to claims of domestic violence.’
117. The Tribunal cited s.366A of the Act which states that while applicants have the legal right to be assisted during a hearing, the ‘assistant is not entitled to present arguments to the Tribunal, or to address the Tribunal, unless the Tribunal is satisfied that, because of exceptional circumstances, the assistant should be allowed to do so’.
118. The Tribunal also stated there is no legal nexus between recusal and vulnerability guidelines; that the applicants’ representative did not have the privilege of interrupting the flow of the Tribunal’s questioning; that the Tribunal had demonstrated flexibility during the hearing; and that there was an opportunity for the representative to address the Tribunal on any matter she thought appropriate. The Tribunal member stated that it was its decision to make an assessment about the vulnerability of the applicant, not the applicants’ representative. While the Tribunal acknowledged the second applicant was emotionally solemn and expressed her testimony through tears, the Tribunal was not satisfied her lugubriousness amounted to exceptional circumstances in which the applicant demonstrated severe distress or was so distressed that she could not continue to provide oral evidence under the circumstances.
119. The applicants’ representative responded to the Tribunal Member’s decision not to recuse himself by restating that the conduct of the Member was causing distress and that apprehended bias was apparent, however they accepted that the presiding Tribunal Member had made a decision not to recuse himself. The hearing then progressed.
120. On 11 April 2016, the applicants’ representative corresponded with the Tribunal seeking for this protection application under review to be reconstituted and reheard by another Tribunal Member.
121. On 15 April 2016, the Member responded in writing to the representative stating that the matter was given due regard by the Member and he had decided not to recuse himself.
122. The Tribunal will endeavour to elaborate on the reasons the Member decided not to recuse himself.
123. Throughout the scheduled hearing, the applicants’ representative frequently interrupted the Tribunal’s conduct of the hearing with no exceptional circumstances raised. Of particular concern to the Tribunal was the interruption of the first named applicant by the representative regarding his visa history. In this instance, the Tribunal sought a response from the applicant if it was credible or likely that in seeking the expensive migration advice and assistance from a highly reputable law firm, [Law Firm 1], that the matter of protection visas was not raised, given the documented past harm in 2008 as outlined in his request for the Minister to personally intervene. The representative claimed the firm only had expertise in migration law and it was credible that the firm did not raise the option the applicant. The representative was told by the Tribunal that the interruption was on an issue of fact and that the representative could not provide oral evidence in this way as she had not provided an oath or affirmation to do so and no weight could be placed on it. The representative was forcefully reminded by the Tribunal that such matters could be raised at the end of the applicants’ oral evidence.
124. The representative’s assertion that the law firm did not provide advice on protection visas, on the basis of credibility is not accepted by the Tribunal. It is an essential professional requirement that registered migration agents are able to identify migration options for their clients, prospective or otherwise, including protection visas. The assertion is also not supported by the [Law Firm 1] website which states its ‘expert legal practitioners have a proven track record for excellent visa applicants and superior understanding of all aspects of immigration law and policy’.[23] While the Tribunal accepts the firm in question specialises in migration as opposed to refugee law, the Tribunal does not accept the representative’s assertion such reputable migration law practitioners were unaware of protection visas as migration options given the applicants’ circumstances at the time they formally requested ministerial intervention. In fact, the Tribunal finds the assertion by the representative in this instance to be without credibility.
[23] [Source deleted].
125. A similar situation occurred when the Tribunal explored with the first applicant the first time he had heard about protection visas by enquiring if and when he had heard about them while in the Indian community in Australia. This is a legitimate and typical line of enquiry for the Tribunal, given the applicants’ delay in applying for protection visas since returning to Australia from India in 2008. In this regard, the Tribunal strongly recommends that representatives familiarise themselves with Selvadurai v MIEA (1994), cited above, and with Subramaniam v MIMA (1998) in which the court held that even a three month delay in lodging a protection visa is a legitimate matter to take into account when assessing the genuineness or depth of any applicant’s fear of persecution.
126. In a similar vein, during the hearing the representative interrupted the Tribunal taking evidence from the first applicant regarding him not recalling the reasons his [other temporary] visa was refused by the Department in 2011. The Tribunal does not consider asking reasons about not remembering significant milestones in an applicant’s visa history an ‘extremely minor point’ as claimed in the representative’s written submission for recusal. The Tribunal would have been failing in its inquiry on this note as it might have revealed some physical or mental health reasons for forgetfulness for the Tribunal to consider. This is especially the case given the Tribunal accepted at the beginning of the hearing evidence the first applicant experienced a physical attack leading to hospitalisation. Again, the Tribunal was correct in vocally registering its obvious frustration with the representative for interrupting the flow of the Tribunal’s inquisitorial proceedings as the first applicant was well placed to give that response while the representative was not a sworn witness.
127. The Tribunal acknowledges that elucidating oral evidence from the second applicant was sometimes challenging and that the second applicant found providing evidence stressful. It is true she asked for a break and was visibly upset. However, as it was explained to applicants during the hearing, the Tribunal persevered with its questioning not to intimidate the second applicant but to draw out the least ambiguous responses possible, and that it was for the Tribunal to determine whether an applicant provided evidence ‘through tears’ or not or whether a break is immediately warranted. As stated during the hearing, the Tribunal found the second applicant to have presented as a credible witness, in the sense her testimony was consistent. Nevertheless, in this decision it was unable to reconcile her evidence with the Tribunal’s key adverse credibility concerns and findings as outlined above. None of these aspects in conducting the hearing indicate apprehended bias was evident.
128. Of particular concern to the Tribunal was the representative’s objection during the hearing to the second applicant providing evidence of past harm at all. This was on the representative’s stated assumption that the second applicant as an additional applicant would not be providing evidence or presenting arguments for the Tribunal to consider. In an inquisitorial hearing, it is open to the Tribunal to seek oral evidence from the second applicant regarding a range of elements relevant to the first applicant’s claims on her behalf. Under the general power of s.424, the Tribunal’s powers to obtain information or invite a person to give information are discretionary; and under s.424(1), there is no limit to the type of information or range of information the Tribunal can garner. Indeed failure to make enquiries of the applicants other than the primary applicant may constitute a failure to review and therefore give rise to jurisdictional error according to the High Court’s MIAC v SZIAI (2009) 111 ALD 15.[24] In this context, the Tribunal finds the applicants’ representative’s argument that the second applicant, who was invited by the Tribunal to provide evidence and sworn in at the beginning of the hearing, should not provide evidence, to have been of no assistance to its proceedings.
[24] MIAC v SZIAI (2009) 111 ALD 15 at [25]; Prasad v MIEA (1985) 6 FCR 155. In SZMWI v MIAC (2009) 111 ALD 160 the Court found that the Tribunal’s failure to enquire constituted a form of Wednesbury unreasonableness, in circumstances where it rejected evidence of its own expert based on a suspicion which had not been put to the expert and there was no impediment to further enquiry from the expert. See also SZNIL v MIAC [2009] FMCA 883 (Raphael FM, 9 September 2009) where an applicant supplied the Tribunal with the telephone number for a witness whose statement the Tribunal rejected without contacting the witness; and SZLGP v MIAC (2009) 181 FCR 113 where the Court held that although the mere extension of an invitation by the applicant to conduct an enquiry was not of itself sufficient to make it an obligation, the circumstances of the case may be so. In that case the relevant circumstances giving rise to an obligation arose were that the Tribunal had before it Department file notes facilitating the making of the enquiry, the class of visa sought, and the impact of the inquiry on the assessment: at [49]-[50].
129. The applicant’s representative raised a number of other instances in relation to the Member’s ‘comportment’. For instance, in the representative’s written submission for recusal she raises the Tribunal’s irritation towards the first applicant assisting the second applicant in giving evidence about her date of birth. The representative claims that the first applicant was attempting to clarify the interpreter’s translation but he was in fact providing evidence on behalf of the second applicant.
130. On a number of occasions throughout the hearing, the representative did not attempt to assist the Tribunal but provided evidence on behalf of the applicants. The applicant’s representative claimed that her clients had been distressed by the Tribunal’s alleged apprehended bias and its ‘incredulous and annoyed’ tone. The Tribunal had, in fact, acted diligently to ensure there was an abundance of procedural fairness and to allay many of the applicants’ concerns since these review applications were constituted. These include:
· Foreshadowing for the applicants in the invitation letter that it was open to the Tribunal to explore these claims against the alternative criteria under the Act’s third country protection provisions;
· Granting a request for an adjournment arising from an administrative error of the representative’s firm in notifying the applicants;
· Clarifying at the beginning of the hearing that the Tribunal accepts on the evidence before it that a serious incident of past harm in India occurred so that the first applicant did not have to retell this traumatic incident;
· Limiting the number of questions to the second applicant as a witness to ensure the stress of appearing before the Tribunal was minimal;
· Withholding its powers to have the applicants’ representative leave the hearing room so as to provide the applicants the benefit of legal representation; and
· Providing the applicants with the opportunity to submit a post-hearing submission regarding their claims.
131. The Tribunal also notes that the representatives did not identify the second applicant’s requirement for an interrupter in the Hindi and English languages when the representative responded to the hearing invitation. During the hearing, the representative apologised for the oversight. Typically the Tribunal would not place much weight on this oversight; however in the context of the overall disruptive behaviour of the representative, it would indicate that the representative did not have a clear understanding about the role of assisting the Tribunal in hearings or about the Code of Conduct for registered migration agents to perform their contractual duties diligently.
132. It is difficult to comprehend that the representative on behalf of the applicants, who belongs to a firm that collectively has a great deal of experience and specialises in immigration law, would not know the difference between providing evidence on the client’s behalf during a scheduled hearing and assisting the Tribunal. The representative’s disruptive behaviour at the scheduled hearing and the requests for recusal strongly invited the Tribunal to consider that it was the representative’s intention to find the least provocative reasons to seek jurisdictional error as a deliberate delaying tactic through the appeal process.
133. The representative’s submission implied that the Tribunal did not bring an open minded approach towards the vulnerability of the second applicant and did not have regard to the AAT vulnerability guidelines. This is not supported by the second applicant’s testimony. When she was asked what she found upsetting she said it was raising very unpleasant experiences for her. The Tribunal did ask a number of times similar questions in order to assert a clear understanding of events on her return trips to India. Neither the applicants nor the representative ever made claims that the second applicant was a vulnerable person prior to or at the beginning of the hearing. However, as the spouse of a victim of past physical trauma, the Tribunal did consider that the second applicant may have experienced an extended period of stress and anxiety. The Tribunal understands that appearing before the Tribunal may be stressful for any applicant. With this in mind, the Tribunal had indicated to those present at the hearing that it did not anticipate exhaustive questioning from the second applicant. After this, a break in the proceedings occurred. Taking the Tribunal’s guidelines on vulnerable persons into account, it found that second applicant demonstrated no thought disorder or difficulties with complex reasoning, no poor attention or lack of concentration. She was able to provide answers and comments to robust questions without demonstrating the severe emotional distress that warranted an immediate cessation in the limited number of questions the Tribunal had in mind for the second applicant. It is also noted that no medical evidence was provided that either applicant suffered from any mental health complaints, either before or after the hearing. The Tribunal found the second applicant was able to provide oral evidence in a reasonably consistent manner, indicating that her demonstrable emotional distress did not inhibit her capacity to participate meaningfully.
134. In parenthesis, the Tribunal is satisfied that both applicants were given a real and meaningful opportunity to give evidence and present arguments in relation to the issues arising from the decision under review in a manner that was consistent with s.425 of the Act.
135. The Tribunal does not accept that it acted in any way that was derisory or aggressive or incredulous towards the protection visa applicants such that it inhibited their ability to present evidence. It also notes that the Tribunal expressed its displeasure towards the applicants’ representative in providing evidence on her applicants’ behalves and for using a mobile phone during the hearing as these actions did not assist the Tribunal in conducting an orderly and fair hearing. The Tribunal finds that the representative has mistaken robust questioning and providing participants at the hearing direct instructions for being agitated, enraged or hostile to the point where ‘this comportment gives rise to clear apprehension of bias’.
136. If the Tribunal Member were not open to persuasion or if it made prejudgment incapable of being altered by evidence or argument, the fair minded lay observer, who does not make snap judgments and is neither complacent nor unduly sensitive or suspicious, would ask himself or herself why the Tribunal granted the applicants additional time to provide further submissions and documentary evidence in support of their applications.
137. Based on the above considerations and facts of this case, the Tribunal does not accept that its comportment or tone of questioning during the scheduled hearing, its conduct towards the second applicant’s vulnerability, or its handling of gratuitous disruptions during the hearing, or these factors in combination, created a reasonable apprehension of bias from the perspective of a fair-minded observer.
Cumulative findings
138. There are no more residual claims to consider in this review application.
139. In summary, the Tribunal has made a number of adverse credibility findings that the applicants and witnesses have understandably exaggerated or embellished their otherwise credible claims about an incident of past harm in 2008 arising from a property dispute. It has also made unfavourable findings that the essential and significant reasons for their genuine but not deeply or urgently held fears about criminals who are at large were not for any of the Convention reasons advanced. It further made unfavourable ‘real chance’ and ‘real risk’ findings about the applicants’ non-Convention or residual reasons for fearing their return to India.
140. The Tribunal is satisfied that it has made exhaustive findings regarding the applicants’ claims, both singularly and cumulatively, against the Refugees Convention and that the applicants do not have a subjectively or objectively well-founded fear of persecution for a Convention reason, based on their accepted circumstances, if they were to return to either Chandigarh or India more generally.
141. Accordingly, the Tribunal is not satisfied that the applicants are persons 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).
142. Considering the applicants’ claims in their entirety, both singularly and cumulatively, the Tribunal is not satisfied that the applicants faces a real risk of treatment amounting to significant harm as contemplated by s.36(2A) of the Act, arising from any of the Convention or non-Convention reasons, if they were removed from Australia to anywhere in India, including Chandigarh.
143. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, there is a real risk of significant harm. The Tribunal does not accept that the applicants will suffer harm by way of their being arbitrarily deprived of their lives; the death penalty will be carried out on them; they will be subjected to torture; they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment, as required in s.36(2)(aa).
Conclusions
144. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a).
145. Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
146. There is no suggestion that the applicants satisfy 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.
147. Accordingly, the applicants do not satisfy the criteria in s.36(2).
DECISION
148. The Tribunal affirms the decision not to grant the applicants protection visas.
Brendan Darcy
Member
- AGLC
- 1500744 (Refugee) [2018] AATA 3094
- Case
- [2018] AATA 3094
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the applicants had established a well-founded fear of persecution for a Convention reason, and whether they met the criteria for a protection visa under the relevant legislative provisions. Specifically, the court was required to assess the credibility of the first applicant's claims regarding the property dispute, the assault, the ongoing threats, and the alleged discriminatory motivation behind these actions, which were linked to his religious and caste identity. Additionally, the court considered the provisions relating to membership of the same family unit for the purposes of protection visa applications.
The court's reasoning involved a detailed consideration of the evidence presented by the first applicant, including his statutory declaration outlining the property dispute, the assault, and the subsequent threats to himself and his family. The court examined the legislative framework for protection visas, including the definition of "member of the same family unit" as defined in the Regulations. The court also addressed a request for recusal, finding no apprehended bias on the part of the Tribunal and determining that an interruption of a witness by a representative did not constitute giving evidence on behalf of that witness. Ultimately, the court affirmed the decision under review, indicating that the applicants' claims did not meet the threshold for establishing a well-founded fear of persecution.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.