1501876 (Refugee)

[2016] AATA 4021

1501876 (Refugee) [2016] AATA 4021 (15 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1501876

COUNTRY OF REFERENCE:                  India

MEMBER:Nicola Findson

DATE:15 June 2016

PLACE OF DECISION:  Perth

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

Statement made on 15 June 2016 at 10:06am

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of India, applied to the Department of Immigration for the visa [in] June 2014.  The delegate refused to grant the visa [in] January 2015.

3. The applicant appeared before the Tribunal on 1 October 2015, to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was not represented in relation to the review.

   RELEVANT LAW

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

   Refugee criterion

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

7. 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.

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

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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

15. 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’).

16. ‘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

17. 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.

    Background and Protection Claims

18. 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.

19. [In] October 2008, the applicant arrived in Australia as the holder of a student visa.  A second student visa was granted to the applicant [in] October 2010, after her initial visa ceased.  This second visa was cancelled by the Department under s.137J of the Act [in] September 2011, because of non-attendance.  The applicant remained in Australia unlawfully for a short period of time – until [November] 2011.  Thereafter, the applicant was granted a series of bridging visas.  [In] December 2011, the applicant lodged an onshore partner visa application.  [In] May 2013, this application was refused on the basis of Schedule 3 (more than 28 days since last held a substantive visa).  An application to review this decision was lodged with the MRT on 19 June 2013.  The MRT affirmed the Department’s decision on 11 April 2014.  [In] May 2014, Ministerial Intervention was sought, under s.351 of the Act.  [In] May 2014, this application was finalised as “Inappropriate to Consider”.  The applicant applied to the Department for a Protection (Class XA) visa [in] June 2014.

20. In her application for a protection visa, the applicant states that she was born on [date], in [Village 1], Punjab State, India.  She states to have Indian citizenship and not to hold citizenship, or to be a national, of any other country.  She states that she speaks, reads and writes Punjabi and Hindi and that she writes English.

21. In response to questions as to why she left India and whether she experienced harm in that country, the applicant states that her parents died and “left her and her siblings alone in the world without much support”.  She states “my mother died in 1999 because of [disease], but my father is not alive because of hate and money issues”.  The applicant declares that her father died [in] March 2002, from injuries suffered after being attacked [by] [number] men on his way to work.  The applicant’s father was able to tell the police what had happened to him before he passed away, and because of this, the [men] who had attacked him were charged.  These men all belonged to the same family, and others from that family put pressure on the applicant and her siblings to withdraw the case concerning their father.  They offered money and then started threatening to kill the applicant and her siblings.  The applicant declared that she refused to withdraw the case, despite her [siblings] being scared and saying that they would.   The lower court sentenced the accused men to life in prison.  But, they appealed this sentence and the applicant suspects they paid a bribe and were eventually freed.  One of the accused men was under 18 years of age when he committed the crime, and was released from prison earlier than the others.  When he was released he started threatening the applicant by following her and revealing a sword and gun to her.  He also carried out a fake acid attack on the applicant.  When the applicant went to the police station to make a report, she was told by the police that they would look in to the matter, but they would not register her complaint.

22. The applicant declared that she is certain that she will be harmed if she returns to India.  She fears her father’s killers, who she says still want revenge against her for the time they spent in jail.  The applicant says that these people are not scared by law and order.  They also know she cannot do much against them as she doesn’t have the money to bribe the system to get justice. The applicant does not have any faith in the Indian police.  She declares that the police “never have time and force to help common man unless common man pay high bribe to them”.

    The Delegate’s Decision

23. In a decision record, the delegate sets out his findings and reasons for refusing to grant the applicant a protection visa.  In summary, the delegate noted grave reservations in relation to the credibility of the applicant.  However, the delegate decided it was not necessary to make a finding in respect of the applicant’s overall credibility or her claims, because the delegate made relevant findings on the applicant’s statutory effective protection.  In particular, the delegate found that the applicant has access to effective state protection in Nepal by the operation of the bilateral residency treaty known as the Treaty of Peace and Friendship between India and Nepal.  The delegate went on to find that the applicant has a present right to enter and reside in Nepal.  The delegate then found that pursuant to s.36(3) of the Act, Australia is taken not to have protection obligations in respect of the applicant because the delegate found the applicant has not taken all possible steps to avail herself of the right to enter and reside, whether temporarily or permanently, in Nepal.

    Application for review

24. The applicant applied to the Refugee Review Tribunal on 9 February 2015, for a review of the delegate’s decision.  The Tribunals Amalgamation Act (Cth) 2015 took effect on 1 July 2015. Transitional provisions of that Act had the effect that an application for review to the Refugee Review Tribunal (now abolished) is taken to be an application to the Administrative Appeals Tribunal.

    Evidence provided at the Tribunal Hearing

25. After providing an outline of the procedural aspects of the hearing, the Tribunal invited the applicant to provide evidence and arguments in relation to matters arising in her case.  The Tribunal explained that it would consider a number of issues, including in her circumstances as a citizen of India, whether she has a present right to enter and reside in Nepal.  If that is so, the Tribunal explained it must consider whether pursuant to s.36(3) of the Act, she has taken all possible steps to avail herself of the right to enter and reside, whether temporarily or permanently, in Nepal.  It explained that is this was the Tribunal’s finding, then pursuant to s.36(3) of the Act, Australia would not have protection obligations in respect of the applicant. 

26. The applicant told the Tribunal that although she was born in [Village 1], she moved with her family to [Village 2] in her early childhood.  She remained in [Village 2] until she entered Australia on a student visa [in] October 2008.

27. The applicant confirmed that she holds a passport issued by the Republic of India and the passport expires [in] 2018. 

28. The applicant told the Tribunal that both her parents are deceased, and that she has [siblings] who remain in India.  [One sibling] works as [occupation], and her [other siblings] ([birth years]) are studying. The applicant indicated that [some siblings] remain in [Village 2].  When [one sibling] recently married, [that sibling] moved away to live with [the spouse] to an area about two hours away from [Village 2].  The applicant told the Tribunal that she does not have any family in Australia.

29. The applicant told the Tribunal that she maintains infrequent contact with [some siblings] in India by social media.  She told the Tribunal that she does not speak with [one sibling] anymore.  She said [he/she] lost her respect when [he/she] wanted to compromise with, and accept money from, their father’s killers.

30. The applicant confirmed that she came to Australia on a student visa in October 2008, and enrolled in a [course] at [a] College in [city] when she first arrived.  The applicant had difficulty settling in [city], so she relocated to [another city] in about January or February 2009.  Her course was not easily transferred to her new location, so she enrolled in a new college – the [name] College.  In 2011, the applicant had problems raising fees to complete studies and was forced to request more time to pay.  In the time she was trying to earn money to pay her fees, the applicant’s visa, unbeknownst to her, was cancelled.  The applicant told the Tribunal that the Department did not inform her that her visa had been cancelled.  She told the Tribunal that she would have challenged the decision to cancel her student visa when she became aware of it, if she was not in a relationship with an Australian man at that time.  Instead, she was convinced by her partner to make application for a partner visa and then resume her studies after that. 

31. The applicant married her husband [in] 2011.  An application for a partner visa was lodged with the Department not long after that.  However, the applicant told the Tribunal that her partner visa never eventuated.  The applicant and her husband separated about 12 months after they married, when the applicant discovered he was having an affair with another woman.  Their divorce was finalised in 2014.

32. When asked what her original plans were in coming to Australia, the applicant said that at the time she left India, she had a threat on her life and just wanted to get away from the situation in India.  She told the Tribunal that the agent who helped her apply to come to Australia mentioned to her that she would be able to apply for permanent residency in Australia once she had completed two or three years of study here.  However, she told the Tribunal that this was not in her mind at the time.

33. The applicant also told the Tribunal that she did not, at any time, discuss her personal situation with anyone else, including the Department.  She also said that she was not aware of a protection visa, or that she could apply for one, when she came to Australia.

34. The applicant told the Tribunal that she has not had any work rights since her student visa was cancelled in 2011.  She explained that she was fortunate to have made good friends who have supported her and provided shelter and food, and taken care of her expenses.  The applicant told the Tribunal that she has applied countless times for work rights since she lost them.  She currently lives with a friend, to keep her company and help her with her children.

35. The applicant told the Tribunal that she completed [number] years of education, but never worked, in India. 

36. When asked to explain her fear of harm if she returns to India, the applicant told the Tribunal that she is very afraid she would be seriously injured or be killed by those who killed her father, if she was to return to India.  She said that these people had already threatened her life and they would continue to do so if she returned to India

37. The applicant told the Tribunal about the circumstances of the attack that killed her father in 2002.  She stated that as well as being [occupation], her father was also [another occupation].  She stated that the men who killed her father had borrowed money from him.  These men were unhappy when her father asked for the money he had loaned – INR [amount - to be repaid.  The applicant said that the assailants were young men who lived close to [location], which was about a 10-15 minute drive from her home, and where her father [worked].  They grabbed her father from off his scooter when he was on his way to [work], took him to their house and tortured him in a miserable way.  The applicant said that the assailants later accused her father of having a relationship with a lady from their family, but this was a false accusation. 

1. The applicant told the Tribunal that because of a statement made to the police by her father, before he died, charges were laid against the men who killed him. While the matter progressed slowly through the court system, relatives of the accused approached the applicant and her siblings and tried their best to get them to withdraw the case.  The applicant said that initially, they offered her and her siblings money to drop the charges.  When she told them that her father’s life was precious and that she wanted justice rather than money, threats against her started.  The applicant said that she was told by the family of the accused men that “they have already been charged with murdering one man, another member of his family wouldn’t add any more to their sentences”.  The applicant told the Tribunal that while she was not in favour to withdraw the case, [one sibling] wanted to make a deal with this family.  She said that she also had the pressure of her own extended family urging her to withdraw the case.

2. The applicant told the Tribunal that the charges were not dropped against the accused men, because she refused to allow this to happen.  Eventually, the lower court handed down sentences of life imprisonment to each of the men, except for the youngest, who was under the age of 18 at the time, and who was released from prison after a few months. 

3. The applicant told the Tribunal that after [one] man was released from prison, he threatened her on several occasions.  He would follow her sometimes when she left the house; threaten her with his eyes; and make it known to her that he carried a gun and a knife.  The applicant told the Tribunal that the incident that frightened her the most was when she was approached by this man in a car while she was walking to the markets and had the contents of a bottle thrown at her.  Although this was a fake acid attack, the applicant told the Tribunal that it is common in India for girls to be spoiled by these attacks, and she felt terrified after this happened to her.

4. The Tribunal was told that the men appealed their sentences to a higher court and were eventually freed.  The applicant told the Tribunal that given the evidence against these men was overwhelming, she is certain that money was paid to the Judge in exchange for their freedom. 

5. The applicant told the Tribunal that she was subjected to threatening behaviour “lots of times” from these men after they were released from prison.  She said that they made it obvious they were watching her.  She said that she avoided leaving her house as much as possible. 

6. The applicant told the Tribunal that she also received threatening telephone calls from an anonymous caller over this time.  She said that the callers would ask to speak to her and then swear at her and say things like “we will see how bossy you are”.

7. The applicant told the Tribunal that she complained to the police about these men about 3 or 4 times.  She said that she went to the police station when these men first started threatening her.  She said the police told her not to worry and that they would talk with the men.  After the fake acid attack, the applicant said she returned to lodge a complaint at the police station.  She said that while the officers did write down some information about the incident, to her knowledge nothing was ever done about her complaint.  The applicant told the Tribunal that she has made attempts to retrieve the records of her complaint(s) from the police, however, she has been told that the records do not exist and the officers she complained to are no longer working at that station. 

8. The Tribunal queried how many times the applicant was threatened or approached by these men before she left India.  The applicant said that whenever they got the chance, they would attack.

9. The applicant told the Tribunal that she lived in the [city] for 6 or 7 months before she came to Australia, while her application to come to Australia was being processed.  No one was aware of this, but, one day she saw a boy from the family she fears, at the market.  After this, she kept the doors locked and considered that she would be alright because she was not living alone.  

10. The applicant told the Tribunal that she returned to India for her [one sibling]’s wedding in 2010, and stayed for about one month.  She said that she was reluctant to return, but her siblings were keen to see her.   The applicant said that she had no problems with these men when she first returned and for the duration of the wedding celebrations, but they eventually learned that she was back in India and on one occasion while she was out the front of her family’s farm they drove by and held up a bottle and shouted “do you remember this bottle?”. 

11. When asked why she would be targeted after so many years had passed since her father’s death, the applicant responded that even though these men are now free, they are still of the mind that they were punished and they will take revenge on her for that. The applicant told the Tribunal that these men are still haters and she still fears them. 

12. When asked why these men would expose themselves to further punishment and harm the applicant, it was reiterated to the Tribunal that these men hate her for not withdrawing the case against them and know that they can get away with anything, if they have money. 

13. The applicant was asked why she had not made an application for protection when she first arrived in Australia in 2008.  The applicant responded that her student visas and subsequent relationship enabled her to safely stay in Australia.  She also said that she was not aware of being able to apply for a protection visa until many years after she first arrived in Australia.    

14. The Tribunal discussed with the applicant country information that indicates she would be able to access state protection if she was concerned for her safety.  The applicant indicated to the Tribunal that the Indian police did nothing about the threats against her while she was in her home country and she does not believe that she would be afforded protection from the authorities if she returned to India.   It was noted by the Tribunal that the police were willing to take the applicant’s complaints previously and that the authorities proceeded with a criminal case against the men accused of causing the death of her father.

15. The Tribunal asked the applicant why these men had not actually seriously harmed her, after they had been released from prison and before she left to come to Australia, given that there had been opportunity for them to do so.  The applicant indicated to the Tribunal that she knows that these men are her enemies and she did not leave her home to go out much, because it was really risky for her. 

16. The Tribunal asked the applicant about whether her siblings had been targeted by the men she feared.  The applicant responded that it was known that [one sibling] wanted to make a deal with this family and that she alone wanted the case to proceed against the men.  She also told the Tribunal that [that sibling] takes precautions and does not venture out of the house unless [he/she] is with others.  Also, [other siblings] were only children at the time her father was killed.  So, as far as she is aware, her siblings have not encountered any problems. 

17. The Tribunal asked the applicant about whether she could relocate within India.  The applicant told the Tribunal that she is afraid of returning to anywhere in India.  She said that it would not a big thing for these men to track her down anywhere in India.  In addition to fearing these men being able to track her down anywhere in India, she said that for a girl in India, it is a big thing to be away from family and many mishaps can happen.

18. When asked to comment on the apparent right she has to enter and reside in Nepal, the applicant said if she can go to Nepal, so can the men she fears.  Also, she does not know anyone in Nepal, so it would be difficult for her to survive in Nepal.  She has watched news and searched the internet and is aware that Nepal is the same as India.  But, her life would be far worse in Nepal.  The applicant indicated to the Tribunal could not even think about going to Nepal, because she does not know much about this country. 

19. The Tribunal explained that it would put information to the applicant pursuant to s424AA of the Migration Act which, subject to her comments, would be the reason or a part of the reason it would affirm the decision under review. It explained the applicant had the opportunity to seek an adjournment before providing a response to the information.

20. The Tribunal put it to the applicant that she had been in Australia a long time, and had a significant visa history here – since 2008, the applicant has been granted 2 student visas; applied unsuccessfully for a partner visa; unsuccessfully sought Ministerial Intervention; and after all of that, was now making an application for a protection visa.  The Tribunal told the applicant that this sequence of events, including the delay in lodging the protection visa application, might lead it to think that her main objective since 2008, has been to remain in Australia, and that this protection visa application is her last ditch effort to do so.  The Tribunal also indicated that it casts serious doubt on her credibility and claims.  The applicant indicated that she did not need an adjournment to consider this information before responding.  She told the Tribunal that she had already explained the problems with her visa history in Australia.  She said she was genuine with all her previous applications.  She said she was not aware that her student visa had been cancelled, even after she lodged a partner visa application.  She indicated that the issues she had with her visas were very stressful for her and she was largely reliant on a migration agent who assisted her with her partner visa application and subsequent Ministerial Intervention application.  She told the Tribunal that when she arrived in Australia, she did not tell anyone about what had happened to her father, and was unaware of what a protection visa was.  She said that eventually, she was told about a protection visa by a [friend].  She said that she would have applied for a protection visa earlier if she had known.  She told the Tribunal that she was telling the truth.  She said she really has a threat in her home country and this is not an application of last resort.

21. When asked if there was any other reason whatsoever she feared returning to India, the applicant replied that she does not want to return to India because  her father was killed miserably, and she does not want to die like he did.   She also said that generally there is no justice or law and order in India.    

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The issues in this case are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to India, there is a real risk that she will suffer significant harm. 

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

    Country of reference

24. The Tribunal has considered the documentary evidence provided to the Department by the applicant and referred to in the delegate’s decision record.  This includes a copy of a passport issued to the applicant by the Republic of India.  Having regard to this evidence, the Tribunal finds that the applicant is a national of India. 

25. On the basis of the finding in the previous paragraph, the Tribunal finds that the country of reference for the assessment of refugee claims, and the receiving country for the assessment of complementary protection claims, in this case is India.

    Third Country Protection

26. Under s.36(3), the Tribunal can consider that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently, in a country apart from Australia, including countries of which the non-citizen is not a citizen.

27. As discussed at the hearing, a key issue in this case may arise from the international bilateral agreement between India and Nepal known as the Indo-Nepal Treaty of Peace and Friendship of 1950 (the Treaty).  Article 7 of the treaty provides that Indian nationals such as the applicants can enter and reside in Nepal, on the basis that:

    [t]he two governments agree to grant, on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation of trade and commerce, movement and other privileges of a similar nature.

28. The Tribunal considered restricting those issues dispositive to s.36(3).  However, the Tribunal has otherwise decided to examine those issues dispositive to the applicant’s credibility in so far as they are relevant to the Refugees Convention and to s.36(2)(aa).

    Credibility issues

29. 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.

30. 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 (The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for determining Refugee Status, Geneva 1992 at para 196).  However, the Handbook also states (at para 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.

31. When assessing claims made by the 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.

32. 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).

33. 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).

34. There are a limited number of claims regarding the applicant and her circumstances that the Tribunal accepts as credible.  The Tribunal accepts that the applicant was born in [Village 1] in the Indian state of Punjab and that she speaks, reads and writes Punjabi and Hindi and speaks and writes English.  The Tribunal also accepts that her mother is deceased; that her father was attacked by a group of men belonging to the same family, and subsequently died; that a criminal case against the men accused of causing the death of her father proceeded through the court system in India; and that her [siblings] remain in India.

35. However, the after reviewing all of the evidence before it, it is the Tribunal’s assessment that the applicant has embellished her claims and her evidence for the purposes of bolstering her protection claims.  In particular, the Tribunal finds that the applicant has fabricated or embellished parts of her claim, including that she has received threatening telephone calls and been subjected to threatening behaviour “lots of times”, from the men accused of causing the death of her father, since they were acquitted of the charges against them and released from prison.    

36. The Tribunal finds the significant delay between the applicant’s arrival in Australia in October 2008, and the lodgement of her application for a protection visa in June 2014, further undermines her claims and her credibility.  The Tribunal rejects the applicant’s explanation for the delay when she claims she did not know about a protection visa, as it finds her a person capable of informing herself of her visa options in Australia.  This is particularly so given the applicant speaks and writes English, and has had access to migration advice and assistance since arriving in Australia.  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, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347).

37. A further observation by the Tribunal and which raises questions as to the credibility of the applicant in her circumstances is that she returned to India for her [sibling]’s wedding in 2010, and remained there for about a month.  The Tribunal finds it difficult to accept that the applicant would return to India if she had a genuine fear of harm and in order to support a [sibling], who on her evidence, she no longer had any respect for (after [he/she] was willing to withdraw the criminal case against their father’s assailants in exchange for money) and she had not spoken to for a significant period of time.  In her oral evidence to the Tribunal the applicant said she avoided harm when she returned to India by not venturing out of her house.  The Tribunal does not find this explanation plausible and is of the view that she did not hold a genuine fear of harm. 

38. The Tribunal also observes that the applicant’s siblings remain in India and have not encountered any problems whatsoever from the men accused of attacking their father.  The Tribunal finds it difficult to accept that the applicant’s [sibling], especially, would not have been targeted by these men, if they wanted to exact revenge for having faced charges and some time in prison, for their involvement in causing the death of their father.  The Tribunal does not find it plausible that the applicant’s [sibling] in particular, has avoided harm by only venturing out of the house when [he/she] is in the company of others.

39. For these reasons, the Tribunal finds the applicant to be an unreliable witness and the findings that follow are made in light of all the evidence and in light of the Tribunal’s assessment of the applicant’s unreliability as a witness.

    Assessment of refugee claims

40. The applicant’s detailed protection claims have been set out in earlier paragraphs in this decision record.  In summary, the applicant has claimed fear of harm if she returns to India from the men accused of attacking her father and causing his death, in particular because she refused to withdraw a criminal case against those men. 

41. The Tribunal accepts that the applicant’s evidence that in 2002, her father was attacked by a group of men from the same family; that he died from the injuries he sustained; and that these men were subsequently prosecuted for their actions.   In these circumstances, the Tribunal also accepts as plausible the applicant’s claims that she and her siblings were offered money, and on one occasion she was threatened by way of a “fake acid attack”, to withdraw the criminal case against the men accused of causing her father’s death, while the matter was progressing through the criminal system.  The Tribunal accepts that this would have been a very difficult time for the applicant. However, past harm does not necessarily give rise to a real chance of serious harm in the reasonably foreseeable future.  And, for the following reasons, the Tribunal has a number of concerns about the applicant’s claims to have been threatened on an ongoing basis by these men after their release from prison, and it does not accept that she faces a real chance of serious harm on return to India in the foreseeable future on this basis.

1. The Tribunal finds the applicant’s description of the alleged threats against her, by the men ultimately acquitted of causing the death of her father, to be vague and unpersuasive, and for these reasons does not accept they occurred as claimed.  For instance, when asked about the threats against her, the applicant said that these men looked at her with “killing eyes” and that they “attacked” her whenever they had the opportunity.   She made general statements to the effect that the men who were ultimately acquitted of murdering her father threatened to hurt her, sometimes over the telephone and sometimes in the street, but she was unable to provide any specific details or context, such as when and how often she was threatened or approached, the nature of the threats and what was actually said. Even allowing the time that has passed since the men were acquitted of causing her father’s death, and noting the level of detail provided to the Tribunal in relation to the “fake acid attack” as well as the strong English language capacity demonstrated by the applicant at the hearing, this lack of detail seriously indicates that the applicant’s fears of the men who attacked her father were not genuinely held.  It is reasonable to expect of an applicant who claims she has been subjected to threats by people to a great deal more knowledge.  The Tribunal requires more detail than the evidence before it to be satisfied that the applicant has a real chance or real risk of harm from the men she claims will harm her, if she were to return to India.

2. The fact that the applicant returned to India for a month in 2010, to attend her [sibling]’s wedding, also casts doubt about her claims to have feared her father’s attackers at this time.  In her oral evidence to the Tribunal she said she avoided harm from her father’s attackers and/or their family during that time, by not venturing outside her house.  The Tribunal does not find this explanation plausible and is of the view that she would not have returned to India at all if she was genuinely fearful at this time.

3. Finally, the Tribunal notes that the applicant did not apply for a protection visa until [date] June 2014, even though she first arrived in Australia [in] October 2008 and she claims that she began receiving threats after her father’s attackers were charged over his death in 2002.  At the hearing, the applicant said that this was because she thought she could stay safely in Australia on student visas and then a partner visa.  Further, she said that she did not know that applying for a protection visa was open to her.  The Tribunal does not find this explanation persuasive.  Given the other credibility concerns in this case as discussed above, the Tribunal finds the delay in the application for a protection visa in this case leads the Tribunal not to accept her core claims as credible or that she has a genuine fear of persecution if she returns to India.

4. Due to her lack of credibility, and for the above reasons, the Tribunal is not persuaded that the applicant has received ongoing threats, as claimed, from the men exonerated of causing the death of her father, or anyone else.  The Tribunal finds that, while it accepts that on one occasion the applicant was threatened by way of a fake acid attack as the criminal case concerning her father was progressing through the justice system, it does not accept that she was threatened or harmed on any other occasion, or that there was any ongoing interest in her after the men were released from prison.  The Tribunal is not satisfied that the applicant will be targeted if she returns to India in the reasonably foreseeable future or that there is a real chance that the applicant will face serious harm in India in the reasonably foreseeable future, if she returns there. 

5. The Tribunal finds that the applicant’s fear of harm if she returns to India does not exist for one or more of the Convention grounds.  The applicant claims that her father’s attackers will seek revenge against her for not withdrawing the criminal case against them, and not for reasons of race, nationality, religion or any other Convention ground.  However, the applicant also claims that there is no justice or law and order in India.  She claims that she is certain that a bribe was paid to the Judge who ultimately overturned the convictions against her father’s attackers.  She also claims that after she complained to the police about the “fake acid attack” on her, nothing was done.  So, the Tribunal has also considered whether a Convention nexus could be attached by reason of a discriminatory withholding of state protection for a Convention reason. 

6. The Tribunal finds country information indicates that there is corruption and impunity within the Indian police service and in government departments.  For example, in 2013, the US Department of State noted that “[w]idespread impunity at all levels of government remained a serious problem.  Investigations into individual cases and legal punishment for perpetrators occurred, but in many cases a lack of accountability due to weak law enforcement, a lack of trained police, and the overburdened and under resourced court system created an atmosphere of impunity”.  Corruption remained pervasive, and bribes were reportedly paid to “expedite services, such as police protection”.[1]  This was supported by Freedom House, who noted that “Citizens frequently face substantial obstacles, including demands for bribes, in getting the police to file a First Information Report”.[2]  The Tribunal also notes a number of measures have been introduced to counteract anti-corruption, including the efforts of the Central Bureau of Investigation (CBI) – which is the principal investigating police agency in India and responsible for investigating corruption and fraud by public servants[3], and the Central Vigilance Commission which is an Indian government autonomous body responsible for addressing government corruption.  Its role is to “receive written complaints for disclosure on any allegation of corruption or misuse of office and recommend appropriate action.”[4] 

   [1] US Department of State 2014, Country Reports on Human Rights Practices 2013 – India, 27 February, Executive Summary & Section 4 Accessed 4 May 2016

   [2] Freedom House 2014, Freedom in the World 2014 – India Accessed 4 May 2016 <CIS2F827D91471>

   [3] Central Bureau of Investigation n.d., CBI: About Us – Overview Accessed 4 May 2016 <CIS2F827D91492>

   [4] Central Vigilence Commission n.d., CVC: Background Accessed 4 May 2016 <CIS2F827D91493>; Pyo, C 2008, Background report: Examining Existing Police Oversight Mechanisms in Asia, Asis-Europe Foundation, 3-4 December, pp.14-15 Accessed 4 May 2016 <CIS956B8881417>

7. Having regard to the applicant’s claims and to all of the country information before it, the Tribunal finds it is satisfied that in the event that the applicant faced a real chance of serious harm as a result of the claimed threats against her, she is able to seek the protection of the Indian police and such protection would not be discriminately withheld for a Refugee Convention ground. The Tribunal notes that although the applicant does not consider that justice was done for her father, the police did lay charges in relation to his death and the matter did proceed through the criminal courts in India.  While the applicant claims her father’s attackers were exonerated because of the payment of bribes, the Tribunal is not persuaded that this was the case.  The applicant provided evidence indicating that her father was attacked because [details deleted] a female family member of the attackers.  The Tribunal cannot therefore be satisfied that the applicant’s father’s attackers were ultimately acquitted simply because of the payment of a bribe.  The applicant also claims that the police did nothing about the fake acid attack on her.  However, as to this claim, the Tribunal notes that on the evidence, the police were willing to take a complaint from her, and, it is not known whether or not the police followed up the matter.  The Tribunal cannot be satisfied that the police did not take any action in relation to this attack.  On this basis, the Tribunal finds the chance that the applicant would be seriously harmed on return to India, on the basis of there being no law and order, to be remote.  Her fear of persecution on this basis is not well-founded.

8. The Tribunal has considered her circumstances and circumstances for women in Punjab.  However, the applicant is an educated, confident young woman who has family support in India.  The Tribunal does not accept that she faces a real chance of harm for being a member of a particular social group or for any other Convention reason.

9. Having considered the applicant’s claims individually and cumulatively, based on matters set out above, the Tribunal finds that there is not a real chance that the applicant will face persecution if she were to return to India now or in the reasonably foreseeable future for a Convention reason.  The Tribunal therefore finds that the applicant’s claims that she will be persecuted if he returns to India, now or in the reasonably foreseeable future, are not well-founded.

   Complementary Protection criterion

10. As the Tribunal finds the applicant does not have a well-founded fear of persecution for one or more of the Convention Grounds, it is considered whether, pursuant to s.36(2)(aa) of the Act, there are 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”). 

11. The term ‘significant harm’ is exhaustively defined in s.36(2A): s5(1) of the Act.  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.

12. Subsection 36(2)(aa) of the Act provides that the relevant risk threshold in assessing complementary protection is that there are ‘substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant’s] removal, there is a real risk that [the applicant] will suffer significant harm if returned to the receiving country.’ In MIAC v SZQRB [2013] FCAFC 33 (20 March 2013), Lander and Gordon JJ, stated (in part): In our opinion, the [real risk] test is as for s.36(2)(a) [of the Act] … there is a real chance that SZQRB will suffer significant harm … were he to return to [the receiving country].[246]

13. The Tribunal considered each integer of the applicant’s claims for protection and the evidence presented in support of those claims, in the context of the complementary protection provisions of the Act.  It considered the applicant’s claims that she faces harm from her father’s attackers, in particular, because she refused to withdraw a criminal case against them; because she is a woman in Punjab, and because there is no law and justice in India.  It considered these claims individually and cumulatively.  For the same reasons as set out above, the Tribunal rejects the applicant’s claims in the context of the complementary protection provisions of the Act.

14. Having regard to all of the evidence, the Tribunal is not satisfied that there is anything in the claims or evidence that the applicant has provided to satisfy it that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that she will suffer ‘significant harm’.

    CONCLUSION

15. 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).

16. 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).

17. 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

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

    Nicola Findson
    Member