1503945 (Refugee)

[2017] AATA 319

1503945 (Refugee) [2017] AATA 319 (16 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1503945

COUNTRY OF REFERENCE:                  India

MEMBER:Meena Sripathy

DATE:16 February 2017

PLACE OF DECISION:  Sydney

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

Statement made on 16 February 2017 at 1:02pm

CATCHWORDS
Refugee – Protection visa – India – Complementary Protection criterion – Political opinion – Communist Party of India (Marxist) – BJP activists – Religion – Muslim – Physical assault – Threats of violence – Arrest warrants – Prison conditions – Credibility issues

LEGISLATION
Migration Act 1958, ss 5, 36, 48, 65, 91R(1)(b), 417, 499
Migration Regulations 1994, Schedule 2

CASES

SZGIZ v MIAC (2013) 212 FCR 235

MIMA v Rajalingam (1993) FCR 220

Selvadurai v MIEA& Anor (1994) 34 ALD 347

AMA15 v MIBP [2015] FCA 1424

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, arrived in Australia [in] December 2010. He first applied for a protection visa [in] January 2011 and this application was refused by a delegate [in] April 2011 and the refusal decision was affirmed by a (differently constituted) Refugee Review Tribunal (the First Tribunal) on 24 August 2011. The applicant unsuccessfully pursued appeals of this decision to the Federal Magistrates Court, Full Federal Court and High Court of Australia, and subsequently sought ministerial intervention under s 417 and s48B of the Act.

3. Following the introduction of the ‘Complementary Protection’ criteria into the Migration Act in March 2012, and the subsequent decision of the Full Court of the Federal Court in SZGIZ v MIAC (2013) 212 FCR 235, the applicant was eligible to have his claims assessed against the Complementary Protection criterion and on that basis he lodged a further application for a Protection visa [in] January 2014, which was refused by the delegate [in] March 2015 and is the subject of the present review.

   Validity of the application and the Tribunal’s jurisdiction

4. Section 48A imposes a bar on a non-citizen making a further application for a Protection visa while in the migration zone in circumstances where the non-citizen has made an application for a Protection visa which has been refused.  However, in SZGIZ v MIAC, the Full Federal Court held that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a Protection visa which duplicates an earlier unsuccessful application for a Protection visa, in the sense that both applications raise the same essential criterion for the grant of a Protection visa. 

5. On the basis of the authority in SZGIZ v MIAC the Tribunal considers that the applicant is eligible to have his claims assessed against the complementary protection.  However, applying the reasoning in SZGIZ v MIAC[1] the Tribunal is of the view that it does not have power to consider the Refugee Convention criterion in s.36(2)(a) and, accordingly, has proceeded on the basis that it can only consider his claims under the Complementary Protection provisions in s.36(2)(aa).

   [1] (2013) 212 FCR 235 has held at [38]. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a).

6. Therefore the issue in this case is whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to India.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence before the Department

8. The applicant is [an age] year old married man from [Kerala] in India.  His family comprises his wife, [children and other family members]. He indicates that speaks, reads and writes Malayalam and English and that his religion is Muslim. He travelled to Australia on an Indian passport, issued in [Country 1] [in] 2010 and valid until 2020.   He indicates that he has travelled outside his home country to [Country 1] for work from June 2008 to June 2010 and to [Country 2] in 2010 and [Country 3] in 2010. He is educated to tertiary level with a [degree] from [University]. He was self employed as [an occupation] in Kerala from 2006 to 2008 and worked for a [company] [in that occupation] in [Country 1] from 2008 to 2010.

9. In relation to his claims for protection, the applicant states in his application that he left India due to persecution on the basis of his political opinion.  He claims he is a communist and his political views are not accepted by his political opponents. He refers to his previous protection visa application which was refused by the Department and the Refugee Review Tribunal, however he wishes his claims to be re-assessed on the basis of the complementary protection provisions.

10. In a statutory Declaration dated 8 April 2014, he makes the following claims and provides the following further information: 

    ·He fears that he will suffer significant harm upon return to India, namely, being subjected to torture or cruel or inhuman treatment or punishment or degrading treatment or punishment.

    ·His fears stem from the objective evidence relating to human rights violations that continue to occur in his home country and from the attached warrant for his immediate arrest.

    ·He was born a Sunni Muslim but is not a practising member of his faith.

    ·His wife, [and other specified family members] continue to reside in Kerala, India.

    ·[One child] married [in year] and his [other children] are still single. [One child] is currently studying [a course] at [university], [another child] recently graduated with a [different] degree and is working as [an occupation] at [a named] Hospital

    ·He fears return to India on the basis of his political views/profile; religion; and being subject to significant harm whilst in prison.

    ·In relation to his political views/profile he states he joined the Communist Party of India (Marxist) in 1992, and refers to an attached letter from the Communist Party to verify his membership. He states his claims relating to the problems he experienced as a direct consequence of his political views and membership of the Communist Party were previously submitted to the Department of Immigration and the Refugee Review Tribunal.

    ·In relation to religion he states that although he was born a Sunni Muslim he is not a committed member of his faith. He adheres strictly to Communist ideology which does not accept the concept of God nor any organised religion. However, despite his political views and rejection of religion, he is still targeted by the BJP and other radical Hindus on the basis of his religious background. Religious intolerance and religious motivated violence is pervasive throughout India particularly in the South where there is a greater concentration of Muslims. Despite the long history of religious conflict neither the central or local authorities have been able to effectively put an end to such violence. Moreover the authorities have demonstrated a propensity to side with the Hindu aggressors. The Muslim community’s fears are further heightened by the growing number of religiously motivated attacks and the likely election of hardline Hindu prime ministerial candidate to Narindra Mody (sic). Despite not having visited his family in India for the past 5 ½ years and despite the passage of time he fears the interest in him on account of his political views and religious background has not diminished.

    ·In relation to his fear of harm whilst in prison he states he has been wrongly convicted of [specified charges]. The convictions were made in absentia and he is of the view that they are all politically motivated as he has not committed any crime. He did not return to India to defend the charges knowing that the trials are politically motivated and devoid of procedural fairness. He attaches copies of warrants for his arrest. He is not motivated by trying to evade legal prosecution but fears that whilst in detention and given the unjust and politically motivated nature of his conviction he will be subjected to disproportionate punishment. If he returns to India he will be immediately arrested and imprisoned for a period of up to 3 years. Whilst in prison he will be subjected to significant human rights abuses and intolerable prison conditions, including overcrowding, unsanitary conditions, lack of adequate food, gross mistreatment physical violence perpetrated by other prisoners.

    Previous protection visa

11. In his previous application the applicant claimed that he was an active and longstanding member of the CPI(M) until he left India in June 2008 to work in [Country 1].  He claimed that he left his country because of continuous threats and violence from the BJP, which was in the majority in his area.  He claimed he was threatened in 2007 and in March 2008, and that he was physically attacked in an incident on [a date in] April 2008, which required him to be hospitalised for two weeks. The applicant claimed that after this he went to stay at a friends house in [another city] for one month and then to his [relative’s] place before he was able to get a visa for [Country 1].  He travelled to Mumbai and from there to [Country 1] on [a date in] June 2008.  The applicant claims he lived in [Country 1] without any incident for two years, but then some BJP and RSS members met him in the market and told local people who approached his company and searched his residence and published his photo and details in a local paper. The applicant claimed he did not feel safe and so he travelled to [Country 2] on two occasions, but he could not get a visa to remain there and returned to [Country 1]. He then applied for a visa to come to Australia to seek protection.

12. Before the (differently constituted) First Tribunal the applicant provided documents including  a Proclamation requiring the appearance of a person accused, a police warrant and documents relating to three other cases against him concerning [charges] and claimed that he had incurred business debts because he was unable to collect money owed to him as he was afraid due to threats made by the BJP against him.

13. The applicant’s claims in that application were rejected as lacking in credibility by both the delegate and the First Tribunal.  The First Tribunal did not accept that the applicant had been a long standing member of the CPI(M) or that he was threatened and attacked because of his membership of the CPI(M) or his political activities.  The First Tribunal did not accept that he was targeted by the BJP or the RSS in India or that there was a real chance that the applicant would be persecuted if he returned to India.  The First Tribunal relied in its reasons on significantly inconsistent evidence given by the applicant about his involvement with the CPI(M) including evidence about when he became a member of the process for joining the party. It also found he gave inconsistent evidence regarding the threats and attacks against him. In relation to the claim regarding his business debts the First Tribunal found that he fabricated this claim. It did not accept the applicant’s claims that he wound down his business and went to [Country 1] because he feared threats or attacks from the BJP or RSS.  It also rejected his claims regarding events that occurred in [Country 1], including that he was traced there and threatened by BJP members. Ultimately the First Tribunal rejected the applicant’s claims on the basis that he was not a credible witness and did not accept that he had suffered harm in the past or that there was a real chance that he would suffer serious harm in the reasonably foreseeable future for reasons of his political opinion, membership of family, religion or any other Convention reason.

    Department interview relating to present application

14. The applicant was interviewed by a delegate of the Minister [in] April 2014. The Tribunal has listened to the audio recording of this interview.  Details of the evidence he provided at the interview are included in the delegate’s decision record.

    Evidence before the Tribunal

15. On 8 August 2016 the applicant’s representative submitted independent information relating to prisons conditions in India, including the US DOS Country Report on Human Rights Practices for 2013 India, and screen shots of media articles relating to incidents of violence against BJP and RSS activists allegedly by CPI(M) men, in support of the applicant’s case. 

    Tribunal hearing

16. The applicant appeared before the Tribunal on 9 August 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malayalam and English languages. The applicant was represented in relation to the review by his registered migration agent. A summary of relevant evidence provided at the hearing follows.

17. The applicant has a wife and [children] in India.  [One child] married about [number] years ago.  [They live] in [a city] in Kerala.  [Another child] was previously studying but stopped about two years ago.  He was not attending classes and was not allowed to sit the exams.  He is currently [working]. [Another child] is studying at school, the equivalent of year [number].  [A few of his] children live with their mother at her family home.  They have lived with her family since he left India some 8 years ago.  His mother continues to live in his family home, presently alone, but at times in the past [one sibling] has stayed with her.  Occasionally his [sibling]’s children come by to help her out.  The applicant’s [other sibling] passed away last year, from a [medical condition].  The Tribunal asked the applicant how his family are financially supported. He said his wife’s [family members] support them.  He has not sent money to them for the last three years, occasionally they send money to him here. Her family have [properties] they rent out for income.

18. He confirmed his education and employment history in India.  He has a [degree] and had his own business selling [products].  He ceased this business 8 years ago when he left India. 

19. He went to [Country 1] in 2008 because of problems he was having at home.  His [Relative 1] was working there and arranged for him to get a job at the same place.  He was working as [an occupation] at a [business].  Before that, he previously went to [Country 1] some [years] ago, also for work.  While he was in [Country 1] between 2008 and 2010 he travelled to [Country 2] on two occasions. He went there because of the problems he had in India and he was considering staying there, however he never made any application to stay.  He made enquiries about it but was told that he would be detained and then after some time he may be permitted to stay, so he decided not to apply.  The second time he went to [Country 2] he accompanied another person.  His [Relative 1] sent him on that trip.  When the other person met his contacts there the applicant returned to [Country 1].  He was only there for [number] days on this occasion. The applicant also went to [Country 3] from [Country 1], just by road, for a visit. 

20. The Tribunal asked the applicant why he came to Australia.  He thought he could settle here because of the problems he had back home.  His problems were political party related.  He was associated with the Marxist Party and the BJP was in opposition to him.  The Tribunal noted that in his statement of claims in this application he indicated that he wanted to rely on the claims made in the previous application.  He confirmed this is correct.  The Tribunal asked the applicant if he understood the reasons why the previous delegate and RRT refused his application.  He said he understood that they did not accept the truth of what he said, but he maintains that they were not correct and he disagrees with the decisions.

21. The Tribunal asked the applicant about his involvement in the Community Party of India (Marxist) (CPI(M)).  He said he began his involvement when he was still at school.  He was involved with the student wing of the Party, called the SFI, around [year range].  At that time he was only involved occasionally, for example when there were school strikes, he supported it. After he finished school he joined higher studies at [an education provider] and graduated with a [specified degree].  He took up membership of the CPI(M) after graduation, he did not have an active involvement before that.  He was only an ordinary member, he was also running his business at this time.  The Tribunal asked what how he became a member of the CPI(M).  He said he was participating in meetings and was invited to become a member [in] the early 1980’s.  He paid [amount] rupees to enrol in the party.  He was involved more around local municipal elections. He spread the name of the party, held up placards at rallies, gave out publicity materials and canvassed for candidates.  He was also involved in other activities they organised such as blood donations. 

22. The Tribunal asked him about the letter from the CPI(M) provided with this application and noted that it indicated he was a member from 1992, rather than the 1980’s as he has claimed.  He said he asked his [Relative 2] to get this document for him.  That date may be the date they have in their records.  There are so many people involved in the party, they may not have accurate records. 

23. The Tribunal asked the applicant if he continued his involvement in the party after he left India in 2008.  He said he has not been in contact with anyone in the party or in any activities of the party since then, in [Country 1] or in Australia. He only hears news through his [Relative 2] who was a long time active member, but he retired from all activities about [number] years ago.  The Tribunal asked if his [Relative 2] had any problems arising from his political activities.  He said he did not because in the era he was actively involved there were not political problems for members of the party, unlike the situation now.

24. The Tribunal asked the applicant if he follows local politics from here.  He was aware of the elections earlier this year, and that the CPI(M) was the successful party.  He was aware of the name of the candidate in his local area who won, and that he was from the CPI(M).  He knew that that BJP won its first seat in this election.  The Tribunal put to the applicant that in his previous application he indicated that the BJP was the dominant party in his area but this was not supported by independent information which indicates that the BJP has never won a seat in the Assembly until this year, when it only took one seat. [2] Given that they have never won a seat before this election and they didn’t win this seat, on what basis is he claiming this.  In response he said Congress and the Marxist Party are the main ones in his area, which is the [specified] area, but the BJP has influence in a neighbouring area called [District name]. 

    [2] [Information deleted].

25. The Tribunal asked the applicant what his problems were with the BJP.  He said they caused him physical problems because of his alliance with the CPI(M). He described an incident when he was getting off a bus on his way home, he was attacked by some men.  He cannot recall the date of the incident.  It was about 10 years ago.  They threatened him and told him it was because he was actively supporting the CPI(M).  They verbally and physically assaulted him.  He was admitted to hospital for 5 days. He suffered [specific injuries].  The Tribunal put to him in his previous application he claims he was hospitalised for 2 weeks.  He said it was a long time ago now and his memory is poor, he is still feeling the effects of the injury. 

1. The Tribunal asked if there were any other incidents. He said after this they continued to make enquiries and threats against him and he decided to leave the country. There were no further incidents because he was careful and hid himself. The Tribunal asked the applicant if he knows who the people who attacked him. He said he did not because they brought in outsiders to do the attack.   The Tribunal asked if he reported the attack to the police.  He said he did not.  When asked why he said he had already decided to leave the country instead.

2. The Tribunal put to the applicant that he gave different evidence in his previous application about threats and the attack against him.  He told the RRT that he had been threatened in 2007 and again in 2008 before the attack in April 2008.  In his written application he did not mention the threat in 2007 and he referred to being hospitalised for 2 weeks, but the letter from the hospital indicated he was admitted for one week. The Tribunal explained that the inconsistencies in his previous and present evidence may lead the Tribunal to have doubts about the reliability and credibility of his evidence. In response the applicant said when he made his first application he was helped by a friend and he did not know what information to include. Now his memory is poor and that is why his evidence may not be consistent.

3. The Tribunal asked why, now in 2016, does he believe he will face harm.  He said they have a case against him and they will pursue him if he returns to the country. He referred to the arrest warrant against him.  The Tribunal put to him that given his evidence about his profile in the party and lack of involvement in the CPI(M) for the last 8 years it may not accept there is a real risk of significant harm from the BJP because of this past incident.  The applicant said it does not matter if he had a small or big role in the past, once they are after you they will pursue you regardless.

4. The Tribunal asked the applicant about his claims regarding the legal case against him. He said that there are warrants for his arrest now. The Tribunal put to him that the documents he has submitted do not indicate a warrant for arrest.  It asked him about the Proclamation Requiring Appearance document.  He explained that this relates to a financial dealing he had with a business associate in the context of his [business].  He gave a cheque to a person named [Mr A] for Rs [amount].  It was meant to be held as security only and not to be banked.  This was a normal practice between them.  Ultimately, [Mr A] owed him money and he owed [Mr A] money so there should never have been any dispute about the matter of the cheque.  However, several years later, [Mr A] filed a case against him about this matter. The applicant believes that the BJP instigated this case.  He has not responded to it and now there is a warrant for his arrest.  He said there are also two other complaints against him but he does not know the details.  He said his [Relative 2] obtained advice from a lawyer who advised that there are warrants for his arrest and he will be arrested and imprisoned as soon as he enters the country.  The Tribunal put to him that the translated documents provided, while requiring his attendance at court, do not appear to suggest that any warrant will issue for his arrest if he fails to appear, but only that a judgement or decision may be made in his absence.  It asked him if he has any other evidence about these cases against him, he said he does not.  It asked him why he believes the BJP is behind it.  He said it is because [Mr A] is a BJP supporter.  The Tribunal put to the applicant that it may not be satisfied on the basis of the documents he has submitted in support of this claim and his oral evidence that there is a judgement or conviction or even a warrant for him that would lead him to be arrested or imprisoned upon entry.  It may not be satisfied on the material he has submitted that the BJP is involved in any way or that he will face significant harm if he returns on this basis. 

5. The Tribunal asked the applicant if he has considered trying to resolve the commercial case with his former associate. He said there is no need to resolve the matter because they each owe money to the other and so there is nothing to resolve.  He is afraid to return because of the existence of the warrants for his arrest, one of which is criminal and a solicitor has told him that he risks facing a penalty of up to three years imprisonment.  The Tribunal repeated that there is no evidence of a criminal case or order against him.  The applicant reiterated that he fears harm on return from the BJP who are influential in his local area. They are not only influential in his area and in Kerala but all over the country. 

6. The Tribunal asked the applicant about his claims relating to religion.  He said he is born into a Muslim family but confirmed that he is not a practising Muslim.  However, he canvassed on behalf of the CPI(M) in the Muslim community and for this reason the BJP attacked him.  So their interest in him is both because of his political activity and association with the Muslim community.

7. The Tribunal asked the applicant if he has suffered harm in the past because of his religion.  He said when they attacked him in the past it was also because of his religion.  The Tribunal asked the applicant if [Mr A] was Muslim.  He said he is, but he is also a supporter of the BJP for the sake of his business.

8. The Tribunal asked the applicant if there is any other reason he fears return to India.  He said the main reason he fears return is that he will be located, arrested, and put in prison because of the arrest warrants against him. 

9. The Tribunal asked why he cannot relocate elsewhere in India if he fears return to Kerala. He said he cannot relocate anywhere because the BJP are all over the country.  Even in [Country 1] they came for him.  The Tribunal asked about this.  He said they had some indirect communication between them and 2 people came looking for him in [Country 1].  They made enquiries at the company he was working at and he was afraid and this is why he left [Country 1].  The Tribunal asked when this happened. He was vague and evasive about this. Initially he said it was in the time he was in [Country 1], then he said it was in March or April 2009, or maybe 2010. He said he has difficulty recalling details after so long.  It was about 7-8 months before he left [Country 1].  It was before he went to [Country 2].  He confirmed that after that he returned to the same sponsor.  When queried about this he said he was able to remain there because he had is [Relative 1’s] protection, but he was working anonymously. He was afraid the sponsor may not sponsor him again and so he left. The Tribunal put to him that it may have concerns accepting this claim given his vague and inconsistent evidence about it.  The applicant referred to difficulties with his memory given the passage of time since the incidents. 

10. At the conclusion of the hearing the representative request 3 weeks to provide further submissions arising from the hearing. 

11. On 10 August 2016 the Tribunal wrote to the applicant under s424A to invite his comment on information that, subject to his comments or response, would be the reason or part of the reason for affirming the decision.  It put to him particulars of his evidence regarding involvement in the CPI(M); past threats and an attack in 2008 and being located by BJP people in [Country 1] and explained concerns the Tribunal had arising from inconsistencies and omissions in this evidence and evidence he has given in this application which may lead the Tribunal to make an unfavourable assessment of his credibility.  The Tribunal also put to him independent information about which political parties are dominant in his area and that the BJP has never been a decisive factor in [Town 1] and explained that if relied on the Tribunal may not accept there is a real chance he will suffer significant harm at the hands of the BJP or due to them.

12. On 22 August 2016 the applicant provided the following comments in response to the Tribunal’s invitation to comment.  He indicated he joined the student federation of India (SFI) in 1982 and later the youth wing of the CPI(M) in 1992 and became a fully fledged member of CPI(M) in 2003 and that a distinction needs to be made between the DYFI (youth wing of the CPI(M) and CPI(M).  In relation to the inconsistencies in his evidence about the threats and attacks in 2008 and the incident in [Country 1], he concedes that his evidence about these matters were inconsistent but attributes this to fading memory.  Regarding the information about the influence of the BJP in his area, he offered no counter evidence but maintained that they do have influence in his area.     The applicant also provided a further document, being a list of recorded court offences in respect of him, for the Tribunal’s consideration.  No other explanation or details were offered with this new information.  The document lists [number] cases apparently pending against the applicant, relating to offences [various offences].  The status of the cases are indicated as ‘long pending’ and ‘non bailable arrest warrants’. The document is dated [in] August 2016.

    FINDINGS AND REASONS

13. A summary of the relevant law is set out in the Attachment to this decision record. 

    Nationality

14. On the basis of his evidence to the Tribunal, and his Indian passport, the Tribunal accepts the applicant is a national of India and considers India is the country of nationality and the receiving country for the purpose of assessing his protection claims.

    Consideration of applicant’s claims

15. The applicant fears return to India because of his political views and opinions, his religion and warrants for his arrest.  He claims he was a member of the CPI(M) and fears significant harm from the BJP because of his affiliation with the CPI(M).  He claims he was born a Sunni Muslim, and although he is not a committed member of his faith he fears harm from the BJP because of his Muslim religious background.  He claims he has been wrongly convicted of [specified charges] and there are warrants out for his arrest and he fears human rights abuses and intolerable prison condition if imprisoned in India as a result of the warrants for his arrest. 

16. When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims.  This usually involves an assessment of credibility of the applicant.  When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. The Tribunal is mindful 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 (1993) FCR 220) However the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).

17. Having considered the applicant’s claims and all of the material before it, including his written and oral evidence in the present application and the previous protection visa application, and relevant independent country information, the Tribunal makes the following findings.

18. The Tribunal accepts the following in relation to the applicant’s background on the basis of his oral and written evidence and department records.  The applicant is [an age] year old married man from [Kerala].  He has a wife and [children] living in Kerala, India.  Prior to coming to Australia he lived and worked in [Country 1] between 2008 and 2010, and prior to that was a self employed [occupation] in Kerala. During his period in [Country 1], he also travelled to [Country 2] on two occasions.  His evidence about this has been consistent to the Department and Tribunal and in this and the previous application.  It accepts that his wife and children continue to reside in Kerala since his absence from India, now over 8 years ago. It accepts that in the time he has been away, [one child] married and [another child] commenced but later stopped studying.  It accepts that his family are supported financially in his absence by his wife’s family.  He has made no claims of harm suffered or problems experienced in India by his wife or children.

    Claims relating to his political opinion/profile

19. The Tribunal has the following concerns about the applicant’s claims of fear of harm on the basis of his political opinion or profile.  He claims to have been a member of, and involved with, the CPI(M) and that he was targeted and attacked by members of the BJP party as a result of this. However there are inconsistencies in the evidence about from when he was a member of the CPI(M) and the level of his involvement in this party in this and the previous application. He told the present Tribunal that he began to be involved since his school days in the [year range], but only took up membership after college graduation in the early 1980’s. The letter he provided with his application, however, states he was a member since 1992.  When this inconsistency was put to him for comment, he attributed the discrepancy to the Party’s inaccurate record keeping and the fact that they may have a significant number of people in the party.  In his previous application, he told the delegate that he transferred from the SFI to the CPI(M) in 2003.  When this inconsistency was put to him for comment in a written invitation under s424A, the applicant’s representative submitted that he joined the SFI in 1982, and the youth wing of the CPI(M) – DYFI-  in 1992, and became a fully fledged member of the CPI(M) in 2003, and that a distinction must be made between the DYFI  and CPI(M).   The Tribunal observes that the applicant did not mention the DYFI or youth wing in his oral explanation, nor does the letter he produced purportedly from the CPI(M) refer to this distinction.  Having carefully  considered all of the evidence now before it, the Tribunal finds the applicant’s evidence of his involvement in and membership of the CPI(M) is unreliable and the inconsistences, together with his changing evidence, leads the Tribunal to find his claimed affiliation with the CPI(M) lacking in credibility. 

20. Even if the Tribunal were to give the applicant the benefit of its considerable doubts about when and how involved he was in the CPI(M), on his own evidence, he has not been involved at all with the party since he left India in 2008.  Independent information before the Tribunal indicates that the CPI(M) is the major political party in Kerala[3] and on that basis the Tribunal finds that even if it accepted that the applicant was a long term member of the party, he would be one among many others.  On the material before it, the Tribunal does not accept that the applicant had a profile that would attract particular interest upon him personally, if a member of the CPI(M) at all in the period prior to leaving India in 2008.  It also does not accept that he attracted attention because of his background as a Muslim or political activity in the Muslim community.  It finds that he is not, since then, a member of, or active with, the CPI(M) and he has no ongoing involvement with the party or politics in his home area. 

    Threats and attack in 2008 

    [3] >

    The applicant makes reference in this application to claims made in the previous application relating to problems he experienced as a result of his political views and membership of the CPI(M).  When asked to elaborate on this at the hearing, he referred to an incident of being attacked by some men while getting off a bus about 10 years ago. He referred to being physically and verbally assaulted and being hospitalised for 5 days. When the Tribunal put to him that in his previous application he referred to a 2 week hospitalisation he said it was a long time ago and his memory is poor.  The Tribunal also put inconsistencies from his evidence in the previous application to the applicant in a written invitation to comment following the hearing, including inconsistencies regarding the period of hospitalisation, and inconsistent evidence about an earlier threat received in 2007.  In response the applicant’s representative conceded that there were inconsistencies in his evidence but that this is attributable to his fading memory.

21. The Tribunal has considered the evidence before it relating to the claims of past threats and attacks and the applicant’s explanation for the inconsistences and the lack of specificity in his evidence. It accepts that there has been a significant passage of time, and the applicant has had to recount these events now a number of times, and this may lead to minor inconsistencies in the detail, and also that the applicant’s memory of specific events may have faded over time, however, in the circumstances, given that the applicant is claiming this incident of the attack led him to leave his family and the country and is the reason he claims he has not returned since then, and continues to be in fear, the Tribunal considers it is not unreasonable to expect that he would be able to recall the incident with at least some reasonable degree of detail and consistency if it in fact occurred. It observes that his evidence about the threats and attack was also inconsistent before the (differently constituted) Tribunal in the previous application some 5 years ago, which was much closer in time to the claimed events.  Taking into consideration the findings above that the applicant did not have any profile warranting interest or attention, if he was a member at all of the CPI(M) in this period, also does not support that there was any basis for him to be targeted and attacked as claimed.  For all of these reasons the Tribunal does not accept that the applicant was physically attacked or threatened as claimed by the BJP or anyone else, as a result of his support for the CPI(M), or as a Muslim or a CPI(M) member in the Muslim community, or for any reason.  Consequently, it also does not accept that anyone made further enquiries or threats against him after this or that he left his family and India for this reason.

    Incident in [Country 1]

22. In the applicant’s previous protection application in 2011 he told the delegate at the interview that he was located by people from the BJP in May 2010.  He told the (differently constituted) Tribunal that this incident occurred in February or March 2010.   In his evidence to the present Tribunal he gave vague and evasive evidence about this incident, first saying that it occurred sometime when he was in [Country 1], then that it was in March or April 2009 only later clarifying that it was maybe 2010 or about 7-8 months before coming to Australia.

23. In his written response to the Tribunal’s invitation to comment on this information the applicant conceded his evidence was inconsistent but again attributed it to his fading memory.  The Tribunal has considered this explanation but it does not accept it.  Given its findings above rejecting that the applicant had been threatened or attacked by anyone in India because of his political affiliation or association with the CPI(M) or for any reason, the Tribunal rejects that anyone came looking for him in [Country 1] in the period he resided there. 

24. Given the rejection of his claims of having suffered harm in the past in India or [Country 1] from the BJP because of his political affiliation with the CPI(M), the Tribunal is not satisfied that there are substantial grounds for believing there is a real risk that the applicant will suffer significant harm upon return to India for reasons of his political opinion or because of past experiences or for any other reason.  

    Claims relating to religion

1. The applicant claims he was born a Sunni Muslim and although he is not a practising Muslim, fears harm from the BJP on the basis of his religious background.  The Tribunal accepts that the applicant has consistently claimed his religion as Muslim in this and the previous application and on this basis it is prepared to accept that he is a Muslim by family background.  But by his own evidence if finds he is not a practising Muslim. The Tribunal is not satisfied that there are substantial grounds for believing there is a real risk that the applicant will suffer significant harm upon return to India because of his religion.

   Claims relating to criminal charges and arrest warrants

2. The applicant claims there are warrants outstanding against him in India for which he may be arrested.  In support of this claim he provided three documents, including a Proclamation Requiring the Appearance of a Person Accused  - referring to an offence under s138 of the NI Act  [presumably being a reference to the Negotiable Instruments Act, 1881], and two other untranslated documents (translations of which were subsequently provided to the Department).  When these documents were discussed with the applicant at the hearing, he explained the matter that the Proclamation Requiring Appearance document related to.  He stated that it related to a cheque he gave a customer who also owed him money, and that there should never have been any dispute about this matter.  He claims the case was instigated against him by the BJP.  However apart from his assertion, no further evidence to support this has been presented.  He referred also to two other complaints made against him but again no other evidence or detail was provided.  The Tribunal noted that the other two documents he provided referred to requiring his presence in court, but made no mention of a consequence of a warrant for arrest for non appearance.  With his response to the Tribunal’s s424A letter , the applicant has provided a document listing [a number of] cases (including [charges listed]) purportedly against him and referring to their status as ‘Long Pending’ and ‘Non Bailable Arrest Warrants’.  No explanation was provided with this document.  The Tribunal observes this is the first time this document has been presented in connection with his claims, and that details of the various offences were not mentioned, or mentioned in any relevant detail, previously.  It observes that the cases are all indicated to be long pending. If there were genuinely long pending cases against him, the Tribunal would expect that there would be significant documentation relating to each matter and yet other than this document, nothing further has been presented in support of the claim.  For this reason the Tribunal rejects this document as non genuine and gives it no weight in considering his claims.

3. The Tribunal rejects the applicant’s claim that he faces a real chance of arrest and imprisonment upon return due to charges and cases pending against him.  On his own evidence, it finds that the subject matter of the dispute which the Proclamation requiring appearance of a person accused relates to is not a serious matter.  According to his evidence, it relates to a commercial dispute that took place many years ago now and over a relatively small amount.  Having regard to the provision in s138 of the Negotiable Instruments Act 1881, the applicant’s account of the subject matter of the dispute, and the absence of any other documentary evidence of a serious and ongoing case against him, the Tribunal does not accept that the applicant is likely to face imprisonment in this matter where he to return to India now.  For these reasons the Tribunal does not accept that the applicant has any court cases pending against him, or that he faces the prospect of imprisonment upon return to India.    

   Fear of future harm

4. The applicant claims to fear harm from the BJP or their supporters in future upon return to India because of his past political affiliation with the CPI(M), Muslim family background and warrants out for his arrest.  However, above, the Tribunal has indicated its doubts about his claimed membership and affiliation with the CPI(M), and found that if at all a member of the party he was a low profile member until he left India in 2008 and has had no involvement with the party since that time.  Having had no involvement with the party for all of these years since he left India, the Tribunal also does not accept that he will become a member of the Party were he to return in future.  It has rejected his claims of past attacks or threats by the BJP or any other political opponent, and rejected his claims of having outstanding criminal charges against him for which he faces the prospect of imprisonment. 

5. The Tribunal has also considered independent information about the power and influence of the BJP in the applicant’s home state, but is not satisfied that this information supports the applicant’s claimed fears of return. The BJP has a relatively low profile and power in Kerala, having won no seats in 2006 or 2011 Assembly elections, and only recently one seat in 2016, whereas the CPI(M) continues to be the biggest party in the Left Democratic Front coalition.[4] While the BJP are a relatively small player in the state, the Tribunal acknowledges there are reports which suggest they may be emerging as a third major challenger in the state.[5]  There are also reports of some BJP-CPM violence in the context of the election campaign.[6] [7] However, having regard to the Tribunal’s findings rejecting the applicant’s claimed profile as a CPI(M) member, and having found he has not experienced any past harm, and has no arrests warrants pending or anyone pursuing him upon return from the BJP, police or any other party or organisation, and its finding that he is not likely to become a member of the Party upon return, the Tribunal not satisfied that there are substantial grounds for believing there is a real risk that the applicant will suffer significant harm upon return to India. 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 s.36(2)(aa).

   [4] Kerala Assembly Elections 2016 Summary, Elections.in website,

   [5] KM Seethi,  Left Front Victory in Kerala, 28 May 2016,  BJP-CPM violence in Kerala, threats in Delhi, The Indian Express, 22 May 2016, Stop Violence by CPI(M) cadres against our workers, BJP tells Pinarayi, The News Minute, 16 June 2016

6. 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

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

   Meena Sripathy
   Member

   
   

   RELEVANT LAW

8. 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

9. 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).

10. 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.

11. 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.

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

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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

19. 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’).

20. ‘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.

21. 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

22. 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.