1501352 (Refugee)

[2016] AATA 4377

1501352 (Refugee) [2016] AATA 4377 (24 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1501352

cCOUNTRY OF REFERENCE:                India

MEMBER:Gabrielle Cullen

DATE:24 August 2016

PLACE OF DECISION:  Sydney

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

Statement made on 24 August 2016 at 6:30pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, a citizen of India, living in Kolkata departed India for Australia [in] March 2014 on a [temporary] visa. He fears return to India as he claims he was an active member of the BJP and was threatened on numerous occasions and kidnapped in August 2013 by members of the Trinamool Congress party. He applied for a protection visa [in] May 2014.

3. [In] January 2015 the applicant was interviewed by the Department. The Tribunal has listened to the tape of that interview and where relevant the evidence from that interview appears in this decision.

4. The delegate refused to grant the visa [in] January 2015 on the basis that the applicant was not a credible witness as to his claims.[1]

   [1] The delegate’s decision was attached to the Application for Review.

5. The applicant appeared before the Tribunal on 23 August 2016 to give evidence and present arguments and where relevant the evidence from that hearing appears in this decision. The applicant was assisted with an interpreter in the Bengali and English languages.

6. The issues to be considered in this case are as follows.

   ·Is the applicant credible as to his claims?

   ·Does the applicant have a well-founded fear of persecution in relation to India and meet the protection obligations under the Refugees Convention?

   ·Does he meet the protection obligations under the complementary protection provisions of the Migration Act?

   RELEVANT LAW

7. 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

8. 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).

9. 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.

10. 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.

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

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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

18. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

19. ‘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.

20. 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

21. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. This includes, but is not limited to, the following.

    ·The applicant’s protection visa application of [May] 2014, attached statement and identity documents, including an Indian passport.

    ·Oral evidence provided at the Department interview held [in] January 2015 and Tribunal hearing held on 23 August 2016.

    ·Letter from the BJP dated [in] April 2014 indicating the applicant was an active member and [occupation 1] for the BJP.

    ·Birth certificate issued by the Bangladesh government indicating the applicant was born in Bangladesh.

    ·DFAT DFAT Country Report India 15 July 2015.

    ·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.

23. For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.

    Is the applicant credible as to his claims?

    The Applicant’s Claims

24. The applicant claims in a statement attached to his protection visa application a fear of return as he is an active member of the BJP and has been since 1992. He claims to believe in the political philosophy and ideology of the party.

25. The applicant claims [in] June 1992 he was a Hindu minority where they were living in Bangladesh in Munshigonj district. He claims [in] June 1992 a local political Muslim leader, [Mr A] with six other people came to their house at night, yelled at his father and asked him to open the door otherwise their house would be burnt down. He claims his father opened the door and he was told that the political and social situation in Bangladesh is not for a Hindu minority. He claims he asked his father to sell all their property a lot less than its real value and he threatened his father that if he does not comply with his request he will make his life miserable. He claims his father was frightened as [Mr A] is a very dangerous man and had already taken over properties and kidnapped and murdered Hindus.

26. He claims as their family was frightened they decided to leave and [in] January 1992 fled to India. He claims he began to live in Kolkata but the people there hated him as he is from Bangladesh. He claims he returned to Bangladesh to see his father and [in] September 1992 [Mr A] found him. He claims [Mr A] was with three others and stopped him on the street and punched him in the face. He claims he then fell to the ground and they started kicking and punching him and he was found bleeding and take to the nearest hospital. He claims his father went to the police but they refused to help.

27. In relation to India he claims in 1992 with the help of relatives he joined the BJP as the BJP believes in Hindus and helps Hindus throughout the world. He claims as a BJP member he was responsible for assisting the party to recruit all the Hindus who are from Bangladesh. He claims in August 2013, [three named people] who were all Trinamool Congress members held him for ransom. He claims they demanded [an amount] rupees and held him in their party office. He claims while he was there they beat him with a stick and punched him. He claims they called his wife and his wife managed to pay that money and he was released. He claims [one of them] asked him to stop being a recruiter for the BJP and join Trinamool.

28. He claims he then decided it was not safe and left. He claims if he returns to India he will be imprisoned and face severe punishment as a result of his association with BJP and the political conflict between Trinamool Congress and BJP.

29. At the Department interview [in] January 2015 the applicant reiterated his claims as to fearing return as a member of the BJP and due to his activities with the BJP. The delegate raised a number of concerns as to the credibility of the applicant’s claims.

30. At the Tribunal hearing held on 23 August 2015 the applicant repeated his claim as to fearing harm from the Trinamool Congress on return, and referred to being kidnapped in August 2013. He added he had been threatened with death by members of the Trinamool Congress party on approximately 7 to 8 occasions from 2011 to 2013, and stated that after he was kidnapped he lived with friends and particularly mentioned living in the North of West Bengal. He indicated that the difficulties he claims he faced in Bangladesh did not affect him while he lived in India. He indicated he did not fear return to India based on his claims with regard to Bangladesh. He also referred to fearing return and being targeted as he is of Bangladeshi ethnicity living in India. The Tribunal raised with him its concerns, particularly as to the credibility of his claims and where relevant these have been outlined below

    Assessment of Credibility of Claims

31. Having sighted a copy of the applicant’s passport, and on the basis of the applicant’s evidence at hearing, the Tribunal accepts that the applicant is a national of India for the purposes of s.36(2)(a). For the purposes of s.36(2)(aa) the Tribunal accepts that India is the receiving country.

32. As to the applicant having faced the difficulties he claims in India, for the reasons that follow the Tribunal does not accept that the applicant is a credible witness and that he suffered the harm or difficulties in his country, India, that he claims for the reasons that he claims, which led him to leave India and why he fears return. It follows it does not accept as true he was ever a member of the BJP involved in [occupation 1] and promoting candidates, and was threatened with harm and kidnapped in August 2013 by members of the Trinamool Congress, and went into hiding until he departed India. It finds his testimony to be inconsistent as to these claims, and is of the view that he has fabricated claims and concocted evidence to achieve an immigration outcome.

33. In making these findings the Tribunal has considered the document from the BJP in India as to the applicant’s membership of the organisation. However for the reasons outlined below in a separate paragraph the Tribunal places no weight on this letter as evidence of the truth of the applicant’s claims as to his involvement and activities with the BJP in India.

    Employment in Bangladesh

34. While the applicant does not claim to fear return to India as a result of his employment, his inconsistent evidence as outlined below as to where he worked in Bangladesh, adds to the finding the applicant is not a reliable or credible witness.

35. As raised with the applicant at the hearing before me the applicant has provided the following inconsistent evidence as to his employment in India before he departed for Australia in 2014.

    ·According to his [temporary] visa application submitted [in] March 2014, as outlined in the Department decision,[2] the applicant claimed to work as [an occupation 2] at “[a Product 1 business]” from 1995, including at the time of application and indicated that he wanted to come to Australia to inspect [similar business operations].

    ·At the Department interview[3] he indicated that immediately before coming to Australia he had been self-employed at [Business 1]. When asked if he had done in any other work in India, he replied in the negative.

    ·Initially at the Tribunal hearing the applicant claimed he had owned and worked at [Business 1] until just before he departed for Australia. He said it was shut just before he came to Australia. He then said that he only worked at [Business 1] up to two years before he departed for Australia. He then said that in the immediate two years before he departed for Australia he worked at a [Product 1] company. He said he worked at the company until 15 days before he departed for Australia.

    [2] Submitted with his Application for Review.

    [3] As outlined in the Department decision attached to the Application for Review.

36. When the above inconsistencies in evidence were raised at the hearing before me, the applicant responded that he worked at [Business 1] until 2 years before he departed then at the [Product 1 business]. At the Department interview when raised with him he indicated that [Business 1] was not going well so he had done some other work.

37. The Tribunal has considered the applicant’s responses and does not accept they explain why he has provided the inconsistent evidence.

38. The applicant’s inconsistent evidence as to where he worked adds to the finding the applicant is not a credible witness.

    Birth Country

39. The applicant has also provided inconsistent evidence as outlined below as to whether he was born in India or Bangladesh. This adds to the finding the applicant is not a reliable or credible witness.

40. As raised with the applicant via the process outlined in s.424AA in his application for a [temporary] visa submitted in March 2014, he indicates he was born in Kolkata, West Bengal, India[4]. However, in contrast with his application for a protection visa he submitted an Indian passport in his name which indicates his place of birth as [Town 1] in West Bengal, India. Similarly in his application for a protection visa at Question 9 he indicates he was born in [Town 1], West Bengal, India. However in the same application at question 21 he indicates his citizenship at birth as Bangladesh and attached to his application for a protection visa a Birth Certificate issued by the Bangladesh authorities, indicating he was born in Bangladesh. He also claims in his statement attached to his application for a protection visa to have fled Bangladesh in 1992 to India with no papers to enter India and indicated at the hearing before me that he was born in Bangladesh and fled there in 1992 for India.

    [4] The applicant confirmed that [Town 1] lies within Kolkata.

41. When the concerns above were raised with the applicant, he elected to respond orally at hearing, he said that he just wants security for his family including his [specified family members] which is available in Australia. When the inconsistencies were raised at the Department interview he responded that he had claims against Bangladesh and was telling the truth.

1. The Tribunal has considered the applicant’s responses and does not accept it explains why he has provided the inconsistent evidence. It is concerned that he has fabricated evidence to strengthen his claim for protection with regard to Bangladesh and that he was targeted in India as he was a migrant from Bangladesh.

2. The inconsistencies in his evidence add to the finding he is not a credible witness.

   Membership of the BJP

3. Central to the applicant’s claim as to why he fears return to India is his membership and involvement with the BJP. He claims to have been a member since 1992, undertaken [occupation 1] work for them and assisted them to recruit Hindus who were from Bangladesh. At the hearing before me he claimed he was the frontline person who contacted others and told them of the party’s ideology, promoted candidates at election time by putting up posters and distributing pamphlets. He said at election time he did this sort of work whenever the party leadership called on him and it was sometimes daily. When asked whether he continues to be involved in the party, while in Australia, he indicated he contacts the local [Senior Official] of BJP, from his electoral area, [District 1], a couple of times a month to update himself on BJP politics in his area.

4. However despite claiming an active involvement in the BJP, stating and confirming he promoted candidates by putting up posters and distributing pamphlets in his electoral area for the West Bengal State Assembly elections which were held in 2011, he incorrectly named his local BJP candidate in those elections, as outlined below. This is particularly of concern as these were the most prominent elections held prior to his departure which he claims to have been involved in promoting the local candidate.

5. When asked at the hearing before me; he stated that [Mr B], the local BJP [Senior Official] for his electoral area, [District 1], was the BJP candidate for the 2011 West Bengal State Assembly elections. He said he was on the posters he put up. He said [Mr B] did not win; rather [name] from the Trinamool Congress won. However as I raised with the applicant via the process outlined in s.424AA, independent information indicates that [Mr C] was the BJP candidate in those elections for the [District 1] area, and while the Trinamool Congress candidate did win, his name was [name][5]. When the above matters were raised with the applicant via the process outlined in s.424AA he chose to respond orally and stated that what he said is the truth.

   [5] [Deleted.]

6. His lack of knowledge of the local candidate of the BJP in the 2011 West Bengal State elections, the Tribunal views as inconsistent with his claim to have been actively involved in the BJP in the manner claimed, including putting up posters and promoting candidates at the this election, often daily. This adds to the finding the applicant is not a credible witness.

7. Further despite claiming to talk to the local [Senior Official] of the [District 1] arm of the BJP a couple of times a month to keep updated as to BJP politics in his area, while living in Australia, his knowledge of BJP matters in the [District 1] area in West Bengal was lacking in any detail. He did not know the name of the local BJP candidate for the recent state elections in the [District 1] area held in April/May 2016 when asked at the hearing before me, nor did he know the name of the current President of the West Bengal State arm of the BJP. As raised with him via the process outlined in s.424AA his name is Dilip Kumar Ghosh and he was elected in 2015[6]. His evidence at the hearing before me was that he did not know much about current BJP politics in his local area and West Bengal.

   [6] At and >

   When these matters were raised with the applicant and that it questions whether he is a credible witness as to continuing an interest in BJP politics, as claimed at the hearing before me, including speaking monthly to the local BJP [Senior Official], he did not respond.

8. The Tribunal views his lack of current knowledge as to matters pertaining to the BJP in his local electoral area of [District 1] and the name of the current state BJP President, to be inconsistent with his claim of a continuing interest in BJP politics and that he speaks to the local [District 1] [Senior Official] of the BJP a couple of times a month about BJP politics in his area and elsewhere. It adds to the finding he is not a credible witness.

9. His lack of knowledge of the BJP regarding the 2011 and 2016 State elections, and lack of any current knowledge, leads the Tribunal to find the applicant is not credible as to his level of involvement and interest in the BJP.

10. These matters add to the finding the applicant is not a credible witness.

    Difficulties faced due to his role with the BJP and hiding

11. Central to the applicant’s claim as to why he fears return are the difficulties he claims he has faced at the hands of members of the Trinamool Congress, in particular [the three named Congress members] due to his role with the BJP and as he is from Bangladesh and promoting Hindus from Bangladesh to be involved in the BJP. He claims that he was kidnapped by them in August 2013, held for three days and only released when his wife paid [the amount] rupees. He also claimed at the hearing before me that from around 2011, they threatened him on 7 or 8 occasions by coming to his home and stating that they would kill him and his wife if he continued his political activity.

12. However for the reasons that follow, the Tribunal does not accept the applicant is a credible witness as to the applicant or his family ever being threatened by members of the Trinamool Congress for the reasons he claims.

13. Firstly, despite claiming at the hearing before me that he was threatened at home on 7/8 occasions with death and that his wife would be killed by these men and members of the Trinamool Congress from around 2011 to August 2013, he only first mentioned this at the hearing before me. When the Tribunal's concern in this regard was raised with him he answered that the Department did not ask and the interview was not thorough. The Tribunal does not accept this response, particularly, as raised with him via the process outlined in s.424AA, at the Department interview when asked at the end of the interview whether there was anything he would like to say, he said no, and then answered in the affirmative when asked whether he had put forward all his claims for protection. In response the applicant referred to looking for safety for him and his family. The Tribunal views his lack of evidence to the Department in his statement and at interview as to these threats of death to be significant, particularly as he was asked whether he had provided all his claims for protection and stated yes. It does not accept his response explains why he did not raise this earlier. It expects if true that he and his family were threatened in the manner claimed he would have raised it earlier that at the hearing before me. This adds to the finding the applicant is not credible as to being threatened 7/8 times with harm and death due to his role and activities with the BJP. This adds to the finding he is not a credible witness.

14. Further, although the applicant has been consistent as to being kidnapped in August 2013 by the named members of the Trinamool Council, held for three days and that his wife paid [the amount] rupees for his release, his inconsistent evidence as to where he was taken casts doubt as to whether he is a truthful witness as to this claim and generally. As stated by the applicant at the Department interview, and as it indicates in his statement, he claims he was held in the Trinamool Congress party office, however at the hearing before me he claimed he was held in the political club, where leaders would come and talk. When asked what he meant by a political club; he said it was not the party office but another establishment. When the inconsistency was raised with him at the hearing before me, the applicant stated that he was first taken to the party office but a ransom could not be demanded from there, so he was taken to another place where a ransom could be demanded. The Tribunal does not accept this response as it expects is this was the case he would have stated this previously, rather than only saying the party office to the Department and initially the political club at the Tribunal hearing. The Tribunal is of the view if the applicant was kidnapped that he would be consistent between the Department and Tribunal as to where he was taken and whether he was moved. This adds to the finding he is not a credible witness.

15. Further, the applicant has provided inconsistent and confusing evidence as to whether he went into hiding as a result of the kidnapping and threats made on his release. He claimed at both the Department interview and at the hearing before me that on release he was threatened that he was not to live in the area so went into hiding. However, as raised with him his evidence at the beginning of the Tribunal hearing was that he lived at his home in [Town 1] until he departed and said he travelled from his home in [Town 1] to the airport to depart for Australia. However later in the hearing he indicated that after he was released he went into hiding at different friends places, and referred to living north of West Bengal. He said he also went to Bangladesh to avoid them. He said he did not return home after he was kidnapped. When the Tribunal raised with him the inconsistency in his evidence, as to whether he lived in his home or not up until he departed India for Australia, he said it may be back to front but he was kidnapped and was in hiding. The Tribunal does not accept this response and expects if he was in hiding and did not return home as was his later claim due to the threats he would be consistent as to this throughout the hearing, particularly as it was for a period of 7 months. This leads to the finding the applicant never was in hiding as claimed. This adds to the finding he is not a credible witness.

16. Further, based on the finding above, it follows that the applicant’s behaviour in remaining living at home up until he departed undermines his claim that he was in fear and was threatened with harm if he continued to live in his area. When raised with the applicant he referred to living in North of West Bengal and being in hiding. However for the reasons above the Tribunal does not accept this to be the case and therefore does not accept the applicant’s’ response. The Tribunal finds his behaviour of continuing to live at his home undermines his claim to be in fear and to have been threatened and faced the difficulties he claims. This adds to the finding the applicant is not a credible witness as to being threatened, kidnapped, going into hiding and living in fear.

    Credibility Summary

17. For all the above reasons, considered cumulatively, the Tribunal does not find the applicant to be a credible, truthful and reliable witness. The Tribunal is of the view that the applicant has fabricated claims and concocted evidence to achieve an immigration outcome. On the basis of the above cumulative credibility concerns the Tribunal therefore does not accept that the applicant is a credible witness and cannot be satisfied on the evidence before it that the applicant is a truthful witness as to his claims as to why he departed India and why he fears return.

18. In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner of which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness as to these claims.

19. In making this finding the Tribunal has also considered that some information has been consistent over time, including that he was a member of the BJP and was kidnapped in August 2013 by three members of the Trinamool Congress, held for three days and released when his wife paid them [the amount] rupees. It has also considered that the applicant correctly answered that the State president of the BJP for West Bengal, at the time he left for Australia was Rahul Sinha. However the Tribunal considers that these matters are relatively easy matters to recall and his consistency in these matters does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant is not a credible witness.

20. In making the finding the Tribunal has considered the letter from BJP in India as to the applicant’s membership of the party in and activities for the party. However on the basis of the information above as to widespread document fraud in India[7], as raised with him, and on the basis of the applicant’s complete lack of credibility the Tribunal gives the document no weight.

    [7] DFAT DFAT Country Report India 15 July 2015 at 5. 27 which refers to the prevalence of document fraud in India.

21. In making the finding, the Tribunal has considered the Birth Certificate from Bangladesh as to the applicant being born in Bangladesh, however on the basis of the prevalence of document fraud in both India[8] and Bangladesh[9], as he indicated he travelled there frequently, on the basis of the applicant’s complete lack of credibility the Tribunal gives the document no weight.

    [8] Ibid

    [9] See Immigration and Refugee Board of Canada 2009, NPL103010.E - Bangladesh: Prevalence of forged, fake or falsely acquired documents, including identity documents, professional certifications, membership cards and employment records, 26 January – Accessed 4 May 2010

22. Accordingly, for all of the above reasons, in light of its findings that he was not a reliable witness, the Tribunal has no confidence in accepting that key aspects of his claims was based on his personal or actual experiences and considers it was fabricated to create a claim to be owed protection.  On the evidence before it, the Tribunal does not accept the applicant was ever involved with the BJP or targeted for this reason, or as he was born in Bangladesh, is Hindu, a migrant or of Bengali/Bangladeshi ethnicity. It rejects entirely that he was ever involved in the past in BJP or has continued this involvement in Australia by speaking to the local [Senior Official] of the BJP in India.

23. It follows that the Tribunal does not accept as true his claim to fear of return as he is an active member of the BJP and has been since 1992, and as he believes in the political philosophy and ideology of the party. As it does not accept he is a credible witness it follows it does not accept as true he was ever involved with the BJP, as a member, [occupation 1], recruiting all the Hindus who are from Bangladesh, assisting those in need, putting up posters and distributing pamphlets at election time, promoting the local BJP candidate, being in contact monthly since his arrival in Australia with the local [Senior Official] of his electoral area of [District 1], and following and being interested in BJP politics in his home area since his arrival in Australia. It follows it does not accept as true he was threatened on 7 or 8 occasions by [the three named Congress members] and their associates who were all Trinamool Congress members or at all, with death to him and/or his family because of his involvement in the BJP, as a migrant, as a person from Bangladesh or a person of Bengali ethnicity or as a Hindu. It follows it does not accept as true that he was kidnapped for three days, held for ransom at either the party office or political club , a demand for [the amount] rupees was made, he was beaten and punched and only released when his wife managed to pay the [the amount] rupees. It follows it does not accept he was threatened on his release to leave the BJP or threatened with harm or to be killed if he did not leave the area or asked to join the Trinamool and be a recruiter. It follows it does not accept as true he never returned to his home, and fled to North of West Bengal, stayed with friends in hiding or travelled to Bangladesh to avoid the harm feared. It follows it does not accept as true that these men, named above, and any other members or associates of the Trinamool Congress have come looking for him at his home in [Town 1].

24. It follows the Tribunal does not accept as true that the applicant fears being beaten or killed, harmed, mistreated, imprisoned and harmed in any manner whatsoever by members and supporters of the Trinamool Congress, including [the three named Congress members] due to any involvement in the BJP or as the BJP are in political conflict with the Trinamool Congress, or as he is born in Bangladesh or of Bengali/Bangladeshi ethnicity or a migrant, or as he promoted the involvement of Hindus living in India who are from Bangladesh or as he is a Hindu.

25. It follows that the Tribunal does not accept as true that at the time he departed India in March 2014 he held any concerns for his or his family’s safety or feared being harmed for any of the reasons he claims. The Tribunal rejects the entirety of the applicant’s claims as to why he fears return to India.

26. With regard to his claims to fear return to Bangladesh, based on the applicant’s lack of credibility the Tribunal does not accept he was born there, or faced the difficulties he claims. It follows it does not accept that any difficulties he claims he faced in Bangladesh would affect him on his return to India.

27. In particular, it does not accept as true that in 1992 where they were living in Bangladesh in Munshigonj district he and his family were targeted because they were of Hindu ethnicity and were threatened by a local political Muslim leader, [Mr A] who with six other people came to their house at night, yelled at his father and asked him to open the door otherwise their house would be burnt down and asked his father to sell all their property a lot less than its real value. It follows it does not accept as true [Mr A] threatened his father that if he did not comply with his request he would make his life miserable. It follows it does not accept as true that as the family was frightened they decided to leave and [in] January 1992 fled to India but when he returned to Bangladesh to see his father [in] September 1992 [Mr A] found him. It follows it does not accept as true that [Mr A] with three others stopped him on the street and punched him in the face, he fell to the ground and they started kicking and punching him and he was found bleeding and take to the nearest hospital.

    Does he have a well-founded fear of persecution in relation to India and meet the protection obligations under the Refugees Convention and does he meet the protection obligations under the complementary protection provisions of the Migration Act?

28. Based on its findings above as to the applicant’s credibility, the Tribunal has found that neither the applicant, nor his family, including his wife was ever targeted by members or supporters of the Trinamool Congress. Further based on its findings as to the applicant’s credibility the Tribunal has found that the applicant was not now or never was a supporter, member, involved or perceived to be associated with the BJP or in opposition to the Trinamool Congress or faced any of the difficulties he claims for the reasons he claims.

29. It follows it does not accept were the applicant to return to India now or in the reasonably foreseeable future the applicant or his family will be killed, harmed, face further threats, be kidnapped, imprisoned, have to go into hiding, be beaten, punched, physically abused or face any of the difficulties he claims from members of the Trinamool Congress.

1. As the Tribunal has found that the applicant was never involved with the BJP in the manner he claims in India and it does not accept his evidence he has continued to follow BJP activities while in Australia, it follows that the Tribunal is not satisfied that the applicant will participate in any BJP activities in any way on return or will suffer persecution by being prevented from being involved. It does not accept as he has not been involved in the past that he will continue to work for the BJP wherever he lives in India.

2. As a result the Tribunal does not accept that the applicant or his family face a real chance of persecution involving serious harm if he returns to India in the reasonably foreseeable future at the hands of [the three named members] of Trinamool Congress or other members or supporters of Trinamool Congress or anyone acting on their behalf or the police or the authorities or anyone else due to his political opinion or imputed political opinion associated with BJP, as the BJP and Trinamool Congress are in political conflict, as he is a Hindu, as he is from Bangladesh and/or of Bengali ethnicity, as he is a migrant, as he recruits Hindus from Bangladesh to join the BJP or as his family will be harmed or for any of the reasons he claims.

3. Similarly based on my findings above and on the information before me I am therefore not satisfied on the basis of the evidence before me that there is a real risk that he will suffer significant harm on his return to India at the hands of [the three named members] of Trinamool Congress or other members or supporters of Trinamool Congress or anyone acting on their behalf or the police or the authorities or anyone else due to his political opinion or imputed political opinion associated with BJP, as the BJP and Trinamool Congress are in political conflict, as he is a Hindu, as he is from Bangladesh and/or of Bengali ethnicity, as he is a migrant, as he recruits Hindus from Bangladesh to join the BJP or as his family will be harmed or for any of the reasons he claims.

   Conclusions regarding the Refugees Convention   

4. The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real chance of him being subjected to serious harm in India in the reasonably foreseeable future.  Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons if he returns in the reasonably foreseeable future. 

5. Based on all the evidence before it, including the applicant’s claimed past circumstances and his current personal and family circumstances and profile in India, the Tribunal is not satisfied that the applicant faces a real chance of serious harm for any of the reasons claimed or arising on the evidence, either singularly or cumulatively, for a Convention reason, in the reasonably foreseeable future. It follows that the Tribunal is not satisfied that the applicant faces a well-founded fear of persecution in India for a Convention reason in the reasonably foreseeable future. Accordingly, the Tribunal is not satisfied that the applicant is a refugee under section 36(2) (a) of the Act.

   Complementary Protection

6. The Tribunal has also considered whether the applicant is eligible for complementary protection. Findings have been made above in this regard.

7. The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real risk of him being subjected to significant harm on return to India.  Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm as defined in subsection 36(2A).

   CONCLUSION

8. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

9. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

10. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    Gabrielle Cullen
    Member