1501961 (Refugee)

[2016] AATA 3785

1501961 (Refugee) [2016] AATA 3785 (28 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1501961

COUNTRY OF REFERENCE:                  India

MEMBER:Susan Pinto

DATE:28 April 2016

PLACE OF DECISION:  Sydney

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

Statement made on 28 April 2016 at 11:35am

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.    The applicant is a citizen of India who is aged in his early [age]. The applicant is from [City 1] in West Bengal. He was granted a [temporary] visa [in] January 2014. He arrived in Australia on that visa [in] April 2014.

2.    The applicant applied to the Department of Immigration for a Protection visa [in] May 2014. The applicant claimed that as a result of his involvement in the Communist Party of India (Marxist) that he had been assaulted and his shop had been burned down by opposing political parties. The applicant claims he will suffer further harm from the opposing political parties if he returns to India.

3. The delegate refused to grant the Protection visa [in] January 2015. The delegate did not accept that the applicant’s claims were credible or consistent with the independent evidence relating to the political situation in the applicant’s state of West Bengal. 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).

4.    A summary of the relevant law is set out in an attachment to this decision. The issues for the Tribunal’s consideration 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. If the Tribunal is not satisfied that the applicant has a well founded fear of persecution, the Tribunal must consider whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to India that there is a real risk that he will suffer significant harm.

CLAIMS AND EVIDENCE

Application to the Department

5.    The applicant indicated on the application form that he was born in [City 1] in West Bengal. He also indicated that he speaks, reads and writes Bangla and he speaks Hindi. The applicant stated that his ethnic group is [deleted] and his religion is Hindu. He stated that he was married in [City 1] [in] 2013 and his wife and [children] live in India. The applicant’s father is deceased and his mother resides in India.

6.    The applicant also indicated on the application form that he had a temporary visa for [country] which was valid until July 2014. He also indicated that he had overstayed in [a second country] by one and a half months in 2008.

7.    In a statement provided with the application, the applicant stated that he is married and has [children] aged [ages]. He completed schooling in [City 1] and he speaks the Bengali language. The applicant was involved in [a business] in [City 1]. He did the business for over 15 years and had an export licence to export his products. The applicant exported [items] to [countries]. His business was doing very well financially.

8.    The applicant was a member of the “Communist Party of Indian Ministry (CPIM)” for over 10 years and was one of the main financers of the CPIM. In 2011, the CPIM lost the elections after 34 years in power and the Trina Mul Congress Party (TMC) came to power. Soon after the TMC came to power they started political victimisation against the supporters and members of the CPIM. From the beginning of 2012, the applicant started receiving threats from members of the TMC. He did not take the threats seriously. About the same time, he also received demands of funds to the TMC. He refused to pay the funds. In 2012, the police visited him several times to harass him and his family. In the same year, Authorities (Zonal Director of Foreign Trade) visited the applicant’s factory to check his export activities. He was then visited by the [Municipal] Corporation agents to harass him, which is the usual way of political victimisation by the political parties in India. The Municipal Corporation and the Director of Foreign Trade fined the applicant’s business many times during the years. The harassment started after the TCM came into power. Prior to that time he had never been disturbed by the police or authorities.

9.    In October 2012, the Director of Foreign Trade cancelled the applicant’s export licence. Approximately one week after this incident the Municipal Corporation sealed his factory. It was a direct attack on his livelihood. The applicant started legal proceedings against the Municipal Corporation and Director of Foreign Trade, but on each occasion they “generate troubles for me and Courts linker the matter on and on”. The applicant was so upset that his livelihood had been “snatched” from him because of his membership of the CPIM. He was unable to sustain himself financially.

1. In March 2013, [three named persons] arranged to burn down the whole building where he had a sale business and was living upstairs. The applicant and his family escaped injuries and serious danger to their lives. They then decided to run away and the applicant came to Australia to save his life. He is seeking protection from the Australian authorities so he does not have to return to India.

2. In support of the application, the applicant provided statements/affidavits from persons who state that the applicant and his wife were injured [in] March 2013 when their house and shop were set on fire by “Trinamool Congress Party goons”. The applicant also provided a statement to the Officer in Charge at the [City 1] Police station, stating that [in] March 2013 he was carrying out his business when persons came to his residence and demanded money and they then beat him and his wife with weapons. The persons state that the applicant was taken to the [medical facility] and was admitted for a few days and treated for [injuries].

3. The applicant also provided a statement from [name], who states that he is an Advocate of the [City 1] High Court. He also states that [in] March 2013 the applicant approached his office and told him about the political harassment. He states that he later found out that the applicant and his wife were living in hiding in [suburb]. He was again approached by the family of the applicant in May 2014 because they had been harassed by the political party members. The Advocate states that he contacted the political party and told them that the applicant is living in Australia, but they threatened that if he returns they will take serious revenge.

4. A medical certificate by [Dr A], dated [in] March 2013, indicating the applicant was seen at [a] Clinic was also provided. He states that the applicant had several [wounds].

5. A medical certificate from [Dr A] was also provided. The certificate, dated [in] June 2014, states that [Dr A] treated the applicant for injuries and he came to know that the applicant was badly tortured by local Trinamool Congress goons and beaten up, damaging his house and they threatened to kill him and his family if they tried to complain about anything to the police. He states that the applicant has suffered from mental trauma and acute depression due to these incidents.

6. A document headed Communist Party of India (Marxist) Regitration No (sic) [number] for 2011 to 2014 was provided.

7. Business documents relating to the applicant’s business as an exporter were provided.

8. As set out in the Department decision, documentation obtained by the Department included a photo substituted passport from a third country with his photograph which was posted to the applicant at his address. The passport was found by the Department to have been photo-substituted.  

9. The applicant was interviewed by the delegate [in] January 2015. The Tribunal has listened to the CD Rom recording of the interview.

Application for review

1. When lodging the application to the Tribunal, the applicant provided a copy of the delegate’s decision record.

2. The applicant appeared before the Tribunal on 21 April 2016 to give evidence and present arguments. The applicant’s representative had previously advised the Tribunal in response to the hearing invitation that a Hindi interpreter was required. However, the applicant advised the hearing officer prior to the commencement of the hearing that he required a Bangla speaking interpreter. A Bangla speaking interpreter was obtained by telephone and the Tribunal hearing was conducted with the assistance of the interpreter in the Bangla and English languages. The applicant was represented in relation to the review by his registered migration agent.

CONSIDERATION OF CLAIMS AND EVIDENCE

Does the applicant have a well founded fear of persecution for a Convention reason?

1. The applicant has claimed that he fears harm for reasons of his imputed political opinion due to his involvement with the CPI (Marxist) party in West Bengal. The applicant claimed that he will be harmed if he returns to India because the TCM has continued to be in power in his local area, but the CPI(M) is in power in some other parts of India. The applicant believes that active members of the CPI(M) are in hiding and are living in “reduced circumstances” having left office. The applicant has also claimed that his family members have been visited and are currently in hiding in another part of the State. He has claimed that he will be killed if he returns to India.

2. The Tribunal has considered the applicant’s written claims and the oral evidence provided both to the Department and the Tribunal. Having considered all of the evidence, the Tribunal does not accept that the applicant is a truthful witness. The Tribunal considers that the applicant has manufactured the entirety of his claims to fear harm in India. The Tribunal’s consideration of the evidence and its reasons for reaching those conclusions follows.

3. The Tribunal firstly considers that the applicant’s claims as his reasons for becoming involved with the CPI (Marxist) party and continuing this involvement for what he claims was an extensive period of time are not credible. At the Tribunal hearing, the applicant stated that he joined the CPI(M) in 1990 and he later became an active member and was the local committee member. The applicant also claimed in his statement that he was one of the “main financiers” of the CPI(M). When asked by the Tribunal why he became involved in the CPI(M) the applicant stated that it was because he was in business and the CPI(M) was in power and he was forced to join. When asked why he later became an active member and the Tribunal queried whether he supported the aims and principles of the CPI(M) the applicant stated that he supported some of the aims which he liked and others he did not like. When asked what aspects he liked and those he disliked, the applicant stated that he liked the fact that they support the community. When asked for more details and asked about the aims of the party, the applicant stated that they help people and provide them with shelter and give everything to the people. The Tribunal queried what the Constitution of the CPI(M) says about the aims of the party. The applicant stated that it talks about the need to be truthful and to provide shelter and education for people. The Tribunal advised the applicant that section 3 of the 2001 Constitution of the CPI(M) refers to the “revolutionary vanguard of the working class of India” and states that its aim is “socialism and communism through the establishment of the state of dictatorship of the proletariat” and refers to the philosophy and principles of Marxism-Leninism.[1] In response, the applicant stated that he joined the CPI(M) because although he was a businessman he wanted to help the community by employing people in his manufacturing business. When asked about the structure of the CPI(M) the applicant indicated that he is aware that the organisation is headed by the Politburo and below that  position are senior ministers, local members and ordinary members.

   [1] Amended April 2005 at the 27^th National Convention, New Delhi, India.

4. The Tribunal accepts that the applicant exhibited some general awareness of the structure of the CPI(M). The Tribunal also accepts that when the CPI(M) was in power in the applicant’s State, that joining the CPI(M) may have been beneficial for a businessman. The Tribunal is prepared to accept, therefore, that the applicant may at some time have joined the CPI(M). However, the Tribunal does not accept that the applicant’s role was other than as an ordinary member of which there are several million throughout India.[2] The Tribunal does not accept that the applicant exhibited anything other than a very basic understanding of the aims of the organisation, which as discussed above is essentially a Marxist Leninist party which aims are socialism and communism, and is known for its anti-globalisation and anti-capitalist stance.[3] The Tribunal does not accept that the applicant’s evidence as to his reasons for becoming actively involved in the CPI(M) are credible and considers his limited knowledge of the aims of an organisation he claims to have been involved with for several years is indicative of the fact that these claims have been manufactured. 

   [2] CPIM: About Us, CPIM, 5 January 2015. The document indicates that in 2013 the membership was 10,65,406.

   [3] Amended April 2005 at the 27^th National Convention, New Delhi, India.

5. The evidence cited by the delegate also does not support the applicant’s claims of conflict between TMC party members and CPI (Marxist) members or supporters. The evidence included in the delegate’s decision record indicates that in 2010 the TMC formed a covert alliance with the Communist Party of India (Maoist) prior to the State Assembly elections in order to unseat the ruling Communist Party of India (Marxist) government. It was at that time that Maoist violence in West Bengal peaked. Fatalities had mounted continuously since 2008 since the TMC and CPI-Maoist alliance, but stopped after the leader of the TMC was sworn in as Chief Minister after the TMC “swept the elections” and a “collusive arrangement with the Maoists was put in place” resulting in the suspensions of operations against the rebels. The arrangement did not last long and the Maoists began to target TMC cadres in their areas of dominance and the leader was forced to resume operations against the Maoists after a succession of high profile killings of TMC leaders.[4]

   [4] South Asia Terrorism Portal, “West Bengal Assessment 2013”, 1 January 2013.

6. The applicant was advised during the Tribunal hearing that the independent evidence does not support his claims and it instead indicates that the TCM was targeted by the Maoists and the clashes were between the TCM and the Communist Party of India – Maoists, a separate party. In response, the applicant stated that members of the CPI(M) were persecuted after the government changed and that was when people tried to close down his shop. The Tribunal does not accept the applicant’s explanation for the lack of reports of members of the CPI(M) being targeted in 2013 The Tribunal has also been unable to find evidence indicating that ordinary members of the CPI(M) have been targeted by the TCM in West Bengal or that there is any ongoing harm directed at persons who are members and, as stated above, there are many millions of members of the CPI(M) throughout India. The Tribunal considers that if CPI(M) members were being sought and harmed by the TCM that there would be reports of this occurring. In the Tribunal’s view, this is further indicative of the fact that the applicant’s claims have been manufactured.

7. The Tribunal also considers that the applicant’s evidence as to the incidents which he claims occurred in 2013 is inconsistent with the documentation provided to the Department. When asked what had happened in 2013 in relation to his shop, the applicant stated that it was burned down [in] April 2013, but it had previously been burnt down in 2012. When asked for further details as to what had happened, the applicant stated that he and his wife were injured and he had [injuries] and he was hospitalised for four days. When asked why the documentation indicates that he was injured [in] March 2013 and it also indicates that he went to see a lawyer the day after the alleged attack in circumstances where he was meant to be in hospital, the applicant stated that the lawyer came to see him. The Tribunal advised the applicant that the statement from the lawyer indicates that he approached him about the incident. When the applicant was also asked why some of the documents are from [Dr A] and indicate that he went to his clinic to see him the day after he was beaten when he was purportedly in hospital, the applicant stated that in India you have to go to a clinic to receive medical assistance. The applicant also stated that he was confused in relation to the date of the incident because after the 2012 incident he had been harassed on and off.

8. The Tribunal does not accept the applicant’s explanation for his inability to recall that the incident relating to his shop being burned down purportedly occurred [in] March 2013, according to all of the documentation provided to the Department. The Tribunal also does not accept his explanation as to why the documents provided to the Department indicate that he was hospitalised with serious [injuries] but he was able to visit a medical clinic and a lawyer the day after the attack. The Tribunal does not accept that the lawyer came to see the applicant in hospital or that he went to a clinic to see [Dr A] whilst he was in hospital with [serious] injuries. The Tribunal does not accept that the applicant was hospitalised or sought legal advice and is of the view that the documents provided by the applicant have all been manufactured and he has purchased a set of documents to support his claims for an application for protection in Australia. As discussed during the Tribunal hearing, the most recent Department of Foreign Affairs and Trade Report states that a range of sources suggests that the manufacture and use of fraudulent documentation is prevalent in India, including for immigration purposes. Examples of fraudulent documents include political party registration and even websites created specifically to reinforce other documents. DFAT also stated that “document fraud is a significant industry in India. Complete packages of fake documents can be arranged and provided by an organised network of professional agents. For example, in March 2012 four people were arrested for their involvement in a large scale documents fraud operation which had been operating since 2003. The operation produced fake bank statements, life insurance policies, property documents and income tax returns which were used to support hundreds of applications for travel abroad, including to the United Kingdom and Canada.[5]

   [5] Department of Foreign Affairs and Trade 2016, Country Information Report: India, 15 July, pp. 23  to 24.

9. The Tribunal also considers that the evidence in relation to the false passport is problematic and indicative of the applicant’s overall poor credibility. As stated above, a false passport was sent to the applicant whilst he was in Australia. At the Department interview the applicant denied any knowledge of this passport and claimed that it was sent to him at his address in [Australia] by one of his enemies. When asked about this by the Tribunal during the hearing, the applicant again stated that he knows nothing about the passport and he believes his enemies sent it to him. When asked why they would do so, the applicant claimed that they are still wishing to harm him. The applicant stated that he does not know how they got his address, but they may have got it from his wife because he had to ask her to send some documents to him in Australia. In response to the Tribunal’s comments that it considers it unlikely that anyone would bother arranging a false passport to send to him in Australia, the applicant stated that there are “very crooked” people in India and they know the law and know that if he is found with a false passport that this would cause problems for him. When advised that it may be that he obtained the false passport because he wished to travel outside of Australia without alerting the Australian authorities to his departure, the applicant stated that if he wanted to return to India he would have used his own passport.

1. The Tribunal does not accept the applicant’s claims in relation to the passport. The Tribunal does not accept that the applicant’s “enemies” would go to such lengths as obtaining the applicant’s address in Australia and a photograph of him in a false passport. The Tribunal does not accept that the applicant has been truthful about this issue. As discussed during the hearing, the Tribunal has serious concerns that the applicant obtained a false passport because he wished to travel outside of Australia without alerting the Australian authorities that he had left Australia whilst claiming protection. The Tribunal considers that the applicant’s evidence in relation to this issue is further indicative of his overall poor credibility.

2. Having considered all of the evidence, the Tribunal accepts that the applicant had a business in India which has closed down. The Tribunal has also accepted that the applicant may at some point have joined the CPI(M). The Tribunal also accepts that the applicant was visited by the police and [City 1] Municipal Agencies in relation to the operation of his business and may have been fined in relation to business matters. The Tribunal accepts a level of corruption in India, and that this may well involve payment to officials and policeman. However, the Tribunal does not accept that the applicant had any active involvement or was “one of the main financiers” of the CPI(M) or that he was targeted or harassed due to political involvement in the CPI(M). The Tribunal considers it likely that the applicant’s business closed down due to financial difficulties and licensing and registration requirements relating to the business operations. The Tribunal does not, therefore, accept that the applicant’s shop was burned down or that his business closed down as a result of his involvement in the CPI(M) or as a result of any harassment or harm from the TCM or associated officials, or that his business failures were related to any of the Convention grounds.  The Tribunal also does not accept that he or his wife were ever harmed or sought by the TCM or any other opposing political parties. The Tribunal also does not accept that any of the documents the applicant provided to the Department in support of his application contain truthful information. The Tribunal does not accept that the registration document or any of the other documents concerning the applicant’s hospitalisation, medical treatment or consultation with lawyers is genuine. The Tribunal also does not accept that the statements from persons attesting to the applicant’s difficulties from the TCM contain truthful information.

3. The Tribunal does not accept, having not accepted any of the applicant’s claims regarding targeting by the TCM that there is a real chance he will suffer serious harm upon his return to India.  As stated above, the Tribunal has been prepared to accept that the applicant, like many millions of others in India, was at some point a member of the CPI(M). The Tribunal has found above that the applicant is not a truthful witness and that he has manufactured a set of claims in an attempt to provide a basis for protection in Australia. The Tribunal is not satisfied that the applicant will be a member of the CPI(M) upon his return to India or that there is a real chance that the applicant will be suffer serious harm for reasons of his actual or imputed political opinion or for any other Convention reason. Accordingly, the Tribunal finds that the applicant does not have a well founded fear of persecution if he returns to India now or in the reasonably foreseeable future.

Is there a real risk that the applicant will suffer significant harm in India?

1. The Tribunal has also considered whether the applicant meets the Complementary Protection provisions which require that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India that there is a real risk that he will suffer significant harm.

2. The Tribunal has found above that the applicant is not a truthful witness and has manufactured his claims for protection. The Tribunal has also found that he was not at any time sought by the TCM or any other political parties and that even if he was at some time an ordinary member of the CPI(M) that this did not result in him being targeted or suffering harm or that there is a real chance he would suffer serious harm upon his return to India. The Tribunal has accepted that the applicant’s business suffered financial losses and that he may have been required to provide bribes at some time to officials to maintain his business. The Tribunal is not satisfied that any difficulties the applicant had due to corruption or bribery resulted in him having to close his business down or that this amounts to significant harm, or that there is a real risk he will suffer significant harm for this reason upon his return to India. Accordingly, for the same reasons as those set out above, the Tribunal is also not satisfied that there is a real risk that the applicant will suffer significant harm if he is returned to India. Accordingly, the Tribunal finds that there is not a real risk that the applicant will suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.

CONCLUSIONS

1. 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).

2. 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).

3. 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

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

Susan Pinto
Member

ATTACHMENT - RELEVANT LAW

1. In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides that:

   ‘(2)  A criterion for a protection visa is that the applicant for the visa is:

   (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

   (aa)a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) 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 non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or

   (b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as the applicant; or

   (c)a non citizen in Australia who is a member of the same family unit as a non citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as the applicant.’

Refugee criterion

1. Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’.  Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments.

2. Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a 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.’

3. The definition contains four key elements.  First, the applicant must be outside his or her country of nationality.  Secondly, the applicant must fear ‘persecution’.  Subsection 91R(1) of the Act states that, in order to come within the definition in Article 1A(2), the persecution which a person fears must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.  Subsection 91R(2) states that ‘serious harm’ includes a reference to any of the following:

(a)a threat to the person’s life or liberty;

(b)significant physical harassment of the person;

(c)significant physical ill-treatment of the person;

(d)significant economic hardship that threatens the person’s capacity to subsist;

(e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

Complementary protection criterion

1. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out above.  A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’.  The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.

Ministerial direction

1. In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘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.