1506363 (Refugee)

[2016] AATA 3885

1506363 (Refugee) [2016] AATA 3885 (19 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1506363

COUNTRY OF REFERENCE:                  India

MEMBER:Nicola Findson

DATE:19 May 2016

PLACE OF DECISION:  Perth

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

Statement made on 19 May 2016 at 11:40am

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, applied for the visa [in] February 2014, and the delegate refused to grant the visa [in] April 2015.

   Background and Protection Claims

3. 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.

4. The applicant is the holder of an Indian passport, which expires [in] 2016. He departed India on a valid passport and first arrived in Australia [in] July 2005, as the holder of a student visa.  Since this initial student visa, the applicant remained in Australia until [a date in] November 2008, on a series of student visas and bridging visas. The applicant departed Australia on [that date] and returned [in] January 2010.  He has departed Australia on 3 occasions for short periods since [January] 2010, but has largely remained in Australia, on student visas and bridging visas, since that time. 

5. In his application for a protection visa, the applicant, who is [age] years old, indicated that although he was born in [Country 1], he is an Indian citizen from Hyderabad.  The applicant indicated that he is a Muslim and that he speaks, reads and writes English and Hindi, and speaks Urdu.  The applicant indicated that he finished secondary school in India in [year], and then went on to graduate from [a] University in [year], with a Bachelor [degree].

6. The applicant claims his family is involved in a land dispute with a political leader in India.  In his application he states that his mother owns a block of land worth approximately AUD$[amount].  He states that his family had been trying to sell the land in order to invest that money in Australia, but that “last year a political leader trespassed [on]to our land and started construction without our permission”.  The applicant further states that “our appointed lawyer tried to communicate and settle a deal with them but on the contrary my family was given a death threat and we are still receiving it.  We were asked to forget our land or else we could end up losing our lives.  It’s not that easy to fight with such people as they have contacts and power.  Our lives are more precious than that block of land”.

7. As to the questions asking what he fears will happen to him if he goes back to India and who he thinks may harm him, the applicant states “I might end up losing my life … my parents are thinking to sell off our current house so that even they can invest that money and come and live with us here in Australia”.  The applicant states that fears harm from the politician and his associates.

8. The applicant states that the authorities would not protect him if he returned to India because the authorities there are corrupt and “money talks in India”.  He states “it is impossible to fight with these people”.  He states that the judicial system is slow and politicians have contacts everywhere and in every department.  He also states that “if we try and seek help things might become worse and me and my family could end up losing our lives”.

   The Delegate’s Decision

9. 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 expressed grave reservations in relation to the credibility of the applicant.  However, the delegate decided not to make a finding in respect of the applicant’s overall credibility 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 himself of the right to enter and reside, whether temporarily or permanently, in Nepal.

   Application for review

10. The applicant applied to the Refugee Review Tribunal on 11 May 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 Tribunal hearing

11. The applicant appeared before the Tribunal on 29 October 2015, to give evidence and present arguments.  The applicant was not represented in relation to the review.

12. After providing an outline of procedural aspects of the hearing, the Tribunal invited the applicant to provide evidence and arguments in relation to matters arising in his case.  The Tribunal explained that it would consider a number of issues, including in his circumstances as a citizen of India, whether he has a present right to enter and reside in Nepal.  And, if that is so, the Tribunal explained that it must consider whether pursuant to s.36(3) of the Act he has taken all possible steps to avail himself of the right to enter and reside, whether temporarily or permanently, in Nepal.  It explained that if 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.

13. The applicant confirmed that he holds a passport issued by the Republic of India, which will expire [in] 2016.

14. The Tribunal was told that the applicant was born in [Country 1] because his parents were living and working there at the time.  However, he did not spend much time in [Country 1] because there were no English schools there.  Instead, his parents arranged for him to be cared for by his grandmother in [city] and then his [relative] in southern India, so that he could be schooled in India.  The applicant did spend his school holidays in [Country 1]. The Tribunal was told that the applicant’s parents returned to India in the 1990’s, and since about [year], the applicant has lived in Hyderabad, India.  The Tribunal was told the applicant’s family is reasonably “well off”. 

15. The applicant told the Tribunal that his parents both work in a [business].  While he was living in [Country 1], the applicant’s father worked as [an occupation] at [two workplaces].    

16. As to family in Australia, the applicant told the Tribunal that he has a [sibling] – [name] – who lives in [Australia].  The applicant’s [sibling] came to Australia in 2006, as the holder of a [temporary] visa.  [He/she] was granted Australian citizenship in 2015.  [He/she] last travelled to India about 2 years ago, to visit family.

17. The applicant also told the Tribunal that he returned to India in February 2012 and secretly married his [girlfriend]. The applicant’s wife never travelled to Australia.  She was studying when she married the applicant and wanted to remain in India to complete her [studies] and [training].  The distance between them created problems and they ended up separating in 2014.

18. The applicant told the Tribunal that he maintains telephone contact with his parents on a weekly basis. 

19. The applicant confirmed that he had completed a Bachelor [degree] after finishing his secondary schooling in India.  He also told the Tribunal that he worked in his family’s [business] before he came to Australia.  The applicant told the Tribunal that he has undertaken studies in Australia since he first arrived in 2005.  He commenced a Masters in [subject] at [a] [University], but did not complete this course.  He explained to the Tribunal that his [relative] became unwell and subsequently passed away while he was pursuing these studies, which impacted on him greatly.  The Migration Review Tribunal remitted a decision of the delegate of the Department to cancel his student visa.  The applicant enrolled in and completed a 2 year Diploma in [Course 1] at [an education provider] in [Australia].

20. The applicant told the Tribunal that he was accused of lodging false documents while he was holding his student visa.  He said that he thought he had sorted out the problem and was awaiting a decision from the Department.  At around this same time, the applicant approached a migration agent to get some advice on applying for permanent residency.  The applicant told the Tribunal that during his time, without him realising, he became unlawful, and left Australia as soon as he learned this.  The applicant returned to India for 13-14 months.  He then returned to Australia in January 2010, as the holder of another student visa, and went on to complete [qualifications in Course 2] at TAFE in [another state].   

21. The Tribunal queried why the applicant had decided to study in the area of [Course 1].  He said he had a change of perspective when his [relative] died and from a cultural perspective it was important for him to [pursue related subjects].

22. In 2011, after completing his qualifications in [Course 2], the applicant moved to [another city]. He approached a migration agent, after a friend recommended him, who suggested that he obtain work in the [Course 2] field and make application for permanent residency.  However, the agent mistakenly made application, on behalf of the applicant, for a temporary visa which the applicant was not eligible to apply for.  The applicant sought review of that decision as well as Ministerial Intervention, both of which were unsuccessful.  The applicant returned to [his original city] in 2011, and started [a different job] to support himself.  He also obtained work through an agency at [Course 2 related services] across [that city]. 

23. When asked what his original plans were in coming to Australia, the applicant said his first priority was to complete his studies in a country he had always dreamed of living.  The applicant added that he has been in Australia a long time now – more than 10 years – and that he has developed a love for Australia. 

24. When asked to explain his claim to fear harm if he returns to India, the applicant told the Tribunal that while his parents were living in [Country 1], in about 1982, they bought a small area ([number] square yards) of a [number] acre block of land in a very good location – [address in] Hyderabad, India.   RS[amount] was paid for this land.  The applicant’s parents needed to purchase the property in his mother’s name, because his father was not living in India at that time.

25. The applicant told the Tribunal that the remainder of the block of land was divided and also sold to several other people.

26. The Tribunal was told that in 2007, the applicant’s parents made the decision to sell the property and use the funds to relocate to Australia.  However, before they were able to sell the property, they had to arrange to validate their property documents and register the property in the applicant’s mother’s name.  Documents were submitted to the District Registrar’s office in order to be validated. However, it was not possible to register the property in the name of his mother at that time, because the then Chief [Minister] had put a hold on properties being registered.

27. The applicant told the Tribunal that in June 2010, he returned to India to visit his parents, because he could sense, after speaking to them on the telephone from Australia, that something was not right.  While he was in India, he learned that his parents had been receiving threats since February 2010, from unknown people by telephone, not to proceed with registering their property.  The applicant told the Tribunal that these threats started in February 2010 and continued for over a year after that.  The applicant also told the Tribunal that his parents did not take these threats too seriously and continued with their attempts to register their property.

28. The applicant told the Tribunal that in 2011, a political leader – [Mr A], of the [specified political] Party - trespassed on to, and erected signs on, the land. 

29. The Tribunal was told that in September 2012, the applicant’s parents enquired about the validation of the land documents.  They were told that because a politician had a good hold on the property, it was unlikely that their application would be progressed by anyone in the Department.  The applicant claims his parents were told to forget about the property. 

30. The Tribunal was told that when the applicant’s parents approached [a senior official] in December 2012, they were again told that it was unlikely they would hold on to their land and that they should not pursue the matter any further.

31. The applicant told the Tribunal that [Mr A] is known to have obtained lots of property through land grabbing.    

32. The Tribunal was told that in October 2012, a notice was published in the local newspaper by agents acting for [Mr A] inviting owners of land at [variation of address in] Hyderabad, to contact them in order to be paid out for their properties in this development.

33. The Tribunal was told that when the applicant’s parents saw this advertisement they engaged a lawyer to respond to the notice.  Although, the lawyer made attempts to contact the agent set out in the notice, no response was ever received back. 

34. The applicant told the Tribunal that in December 2012, another notice was put in paper by agents acting for [Mr A].  Another lawyer was engaged by the applicant’s parents to write to the agent, after their first lawyer refused to act.  However, again, no response was received by the applicant’s parents.

35. The Tribunal was told that, with the assistance of their lawyer, a request was submitted to [a government department] by the applicant’s parents in May 2013, in an attempt to resolve this land ownership issue.  The applicant told the Tribunal that no response was received from this Department.

36. After this, in about November 2013, the applicant told the Tribunal that about 3 or 4 men entered his parent’s [business] and announced that they had been sent by [Mr A] to tell them to forget about the land.  They did not harm the applicant’s mother, because she is a woman.  The applicant’s father was shoved and sustained some bruising.  They broke [furniture] in the [business].  They were warned that if they did not forget about the land, they would face consequences.  The applicant told the Tribunal that after this incident the applicant’s parents contacted their lawyer for advice as to what to do.  They were advised to lodge a complaint with the police.  However, when they tried to do this, they were encouraged by the police not to lodge a complaint against the politician.

37. The applicant said that around this time he also received a telephone call on his mobile phone.  He did not know who the caller was, but was warned that he would be killed if he returned to India, because his parents were not listening to them and they wanted to make them realise they were serious. When probed by the Tribunal about the call, the applicant admitted that he was surprised to have received the call and could not explain how the caller would have got his mobile number in Australia. 

38. The applicant provided evidence to the Tribunal which supports the purchase of land in his mother’s name, situated at [the specified address in] Hyderabad.  Documents provided to the Tribunal also support the attempts by the applicant’s parents to register this investment property.

39. When asked how he had managed to avoid any problems when he returned to India in 2010 for two months, the applicant explained to the Tribunal that he stayed at home with his parents and rarely ventured out while he was back in India.

40. When asked if the applicant’s parents had had any problems since November 2013, the applicant replied that he believed that “things had gone quiet” since his parents had not made any further attempts to progress with the registration / sale of the property.  However, he went on to say that his parents do not tell him much because they want to minimise the stress on him.  When asked if his parents remained living at their home address in Hyderabad, the applicant said that they did because they have lived their life and have no fear.  The applicant told the Tribunal that his parents were concerned about him staying safe and did not want him to return to India.

41. When asked if his [sibling] had ever received any threats in relation to the property dispute, the applicant said that [they] had not.  The applicant told the Tribunal that he was the next one in line to inherit the property, which is why his [sibling] had probably not been threatened.

42. The Tribunal invited the applicant to comment on any matter or finding of the delegate contained in the delegate’s decision record.  The applicant responded that he did not have any further comment.   The applicant did go on to mention however, that he was very nervous at the Departmental interview because he was expecting an intimidating process.

43. The Tribunal asked why the applicant should be concerned about returning to India if his mother and father were still living there and nothing serious had happened to them in over 6 years.  The applicant responded that his parents had not pushed the matter since November 2013.  He was also still concerned he would be harmed by [Mr A’s] associates, given that he had been warned he would be killed if he returned to India over the telephone, in about November 2013. 

44. When the Tribunal queried what his parent’s intentions were as to the land in dispute, the applicant responded that he did not know.  He told the Tribunal that his parents have not shared this information with him.  The applicant reiterated his statement contained in his written application, that their lives were more valuable than the block on land.  The applicant did concede that if his parents did nothing further about the land, he was not sure if the danger would remain.

45. The Tribunal put it to the applicant that there was a long delay between his last arrival in Australia and the making of the application for a protection visa.  It explained that it might conclude that such a delay indicated that he did not have a genuine fear of returning to India.  The applicant responded that he had to await the outcome of another visa application before he could apply for a protection visa.

46. The Tribunal asked the applicant if he had considered returning to another part of India.  The applicant responded that it he had not considered it because of fear for his life. He said he would be located by [Mr A] or his associates anywhere he went within India. 

47. The Tribunal explained that it would put information to the applicant pursuant to s424AA of the Migration Act which, subject to his 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.

48. The Tribunal put it to the applicant that because he had not raised significant information about an attack on his parents in November 2013 or a threatening telephone call received by him at around the same time, in his written application, which might lead the Tribunal to infer that the applicant had concocted these incidents to bolster his claims for protection.  The Tribunal also stated that his visa history, including the significant delay between the applicant’s last arrival in Australia and the lodgement of a protection visa application would be the reason or part of the reason for affirming the decision under review.  

1. There was an adjournment before the applicant provided his comments in relation to the information put to him by the Tribunal.  As to the omission of significant information in his written application, the applicant told the Tribunal that he because he was under stress, he must have overlooked those details.  As to the delay between last arriving in Australia and applying for a protection visa, the applicant maintained that he had been told that when someone has an application with the Department, they could not lodge another one.  So, the reason for the delay was that he had an application for Ministerial Intervention and he had to await that decision before making his protection visa application.   

2. When asked if there was any other reason whatsoever he feared returning to India, the applicant replied that this threat to his life because of the land dispute was the only reason.  However, he went on to say that life in India is generally hard for a Muslim. 

3. When asked to comment on the apparent right he has to enter and reside in Nepal, the applicant said that he has never been to Nepal before; there have been earthquakes in Nepal and that the country is in shatters, so life would not be good there; and he might have a problem because of strained relations.  When asked if he had made any inquiries about going to Nepal, the applicant told the Tribunal that he would not put his life in danger and go and live in a place with earthquakes.  He told the Tribunal that generally people come to India from Nepal.  And, in any event, he would prefer to live in Australia.

   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.

17. 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

18. 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.

    REASONS AND FINDINGS

19. 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 he will suffer significant harm.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of reference

20. 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. 

21. 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

22. 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.

23. 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.

24. 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

25. The Tribunal accepts that the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed.  Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.  Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.  A decision maker is not required to make the applicant’s case for him or her.  Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

26. In determining whether an applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the applicant’s claims.  This may involve an assessment of the applicant’s credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face.  Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.

27. The Tribunal is not required to accept uncritically any or all allegations made by an applicant.  In addition, 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 established.  Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality (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). On the other hand, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

28. There are a limited number of claims regarding the applicant and his circumstances that the Tribunal accepts as credible.  The Tribunal accepts that the applicant although born in [Country 1] is an Indian citizen from Hyderabad, Telangana, and that his parents remain in India.  The Tribunal accepts that the applicant speaks, reads and writes Hindi as well as English, and that he speaks Urdu.  The Tribunal is also prepared to accept that there is an ongoing dispute over land between the applicant’s parents (as well as several other owners) and a local politician.

29. However, after reviewing all of the evidence before it,  it is the Tribunal’s assessment that the applicant lacks overall credibility as a witness and this overall finding is a matter of central importance in the Tribunal’s determination of this application for protection.  In particular, the Tribunal finds that the applicant was very often vague in his evidence on matters which the Tribunal considers he would have been able to give clear and detailed evidence.  For example, the applicant was only able to provide information about [Mr A] and the threats that both he and his parents had received about the land dispute in very general and limited detail. 

30. The Tribunal also finds that the applicant has fabricated his claims and concocted a story in respect of a claimed fear on the basis of a land dispute should he return to India.  When this was put to the applicant at the hearing, the applicant maintained that because he was under stress he neglected to include some details in his written application.  The Tribunal rejects this explanation as the applicant in the Tribunal’s assessment was aware, or ought to have been aware, that it was important to outline significant incidents and information relevant to his claims.

31. The Tribunal finds the significant delay between when the applicant says his family first started receiving threats about the land dispute; the applicant’s last arrival in Australia in 2012; and the lodgement of his application for a protection visa in early 2014, further undermines his claims and his credibility.  The Tribunal does not accept the applicant’s explanation for the delay when he claims he did not think he could lodge and application for a protection visa when he was awaiting the outcome of a Ministerial Intervention application in respect of another visa application, as it finds him a person capable of informing himself of his visa options, and the process, in Australia and raising his protection claims much earlier than he did. 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).

32. A further observation by the Tribunal and which raises questions as to the credibility of the applicant in his circumstances is that he returned to India after, he says, the problems related to this land dispute arose between his parents and [Mr A].  In his oral evidence to the Tribunal he said he avoided harm when he returned to India by not venturing out of his parent’s house.  The Tribunal does not find this explanation plausible and is of the view that he did not hold a genuine fear of harm.

33. 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

34. 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 returns to India because of a land dispute between his parents and a local politician.

35. Despite the Tribunal’s concerns about the applicant’s credibility, as mentioned above, it is willing to accept that the applicant’s mother purchased a piece of land in India in 1982 and that she has been embroiled in a dispute with a local politician for several years, about the ownership of that land.  It is also willing to accept that this matter remains unresolved.

36. However, for the following reasons the Tribunal has a number of concerns about the applicant’s claims that both he and his parents have been threatened in relation to this dispute and it does not accept that he faces a real chance of serious harm on return to India in the foreseeable future on this basis.

37. The applicant’s evidence about the threats both he and his parents have received is vague and overall, not convincing.  In his written application, the applicant states that his “family was given a death threat and we are still receiving it”.  At the Tribunal hearing, he made general statements to the effect that [Mr A’s] men had threatened to kill his parents, mostly over the telephone and sometimes in person, since 2010, but was unable to provide any specific details or context, such as the nature of the threats, on how many occasions threats had been received, and what was actually said.  He did tell the Tribunal about a specific attack on his parents in their [business] in November 2013.  He told the Tribunal that a few men entered the [business]; a [furniture item] was broken; his mother was not hurt at all because she is a woman; and although his father sustained some bruising he did not require any medical attention afterwards. The applicant also told the Tribunal that he had received a telephone call while he was living in Australia, at around the time his parents were threatened in their [business], during which he was warned he would be killed if he returned to India.  But, he was unable to explain how his mobile telephone number would have become known to [Mr A] and/or his associates, and again, was unable to provide any specific details or context about the call.  When asked to explain why the attack on his parents at their [business] and a specific threat directed to him had not been included in his written application, the applicant responded by saying that he was under stress and overlooked those details.  The Tribunal does not accept as plausible that the applicant would not include information about this significant incident involving his parents in his application, particularly since the applicant’s evidence indicates that this was the only incident of harm involving his parents, or the one and only telephone threat directed to him. The lack of detail and clarity about the threats made to the applicant and his parents, indicate to the Tribunal that the applicant’s fears of [Mr A] and/or his men are not genuinely held.  It is reasonable to expect of an applicant who claims his parents have been attacked and that he has been subjected to a serious telephone threat, to a great deal more knowledge.

1. The Tribunal also considers it significant that while on the one hand the applicant claims that he has been threatened and fears serious harm on return to India from [Mr A] and his associates, he has not been able to adequately explain why his parents, who own the property, and who remain at their home address in India, have not been harmed given the dispute between themselves and [Mr A] has been ongoing for at least six years.   

2. Finally, the Tribunal notes that the applicant did not apply for a protection visa until February 2014, even though on his evidence he started fearing harm years earlier than this.  Given the other credibility concerns in this case as discussed above, The Tribunal not accept as plausible that a person would wait so long to make a protection visa application, if they feared harm in their country of origin.  In addition to the credibility concerns in this case, as discussed above, not raising his protection claims earlier than he did shows a lack of a subjective fear of harm on the part of the applicant.

3. The applicant fears he will be harmed due to an ongoing dispute over land owned by the applicant’s mother and [Mr A].  However, having regard to the applicants claims and submissions, the Tribunal finds that this land dispute does not exist for one or more of the Convention grounds.  The applicant simply claims that [Mr A] wants to take possession of a [size] block of land in a very good location in [the specified address in] Hyderabad, which belongs to his parents as well as others, and not for reasons of race, nationality, religion or any other Convention ground.  The Tribunal will therefore consider this claim of [Mr A] wanting to take his mother’s land further under the provisions of complementary protection below.  However, the Tribunal also considered whether a Convention nexus could be attached by reason of a discriminatory withholding of state protection for a Convention reason.  In his written application for protection, the applicant claims that the authorities have not taken any action and that the authorities do not take action because of corruption.

4. 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]  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 him, he is able to seek the protection of the Indian police and such protection would not be discriminately withheld for a Refugee Convention ground.

   [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>

5. As the Tribunal finds the applicant does not face a real chance of serious harm for any Convention ground, the Tribunal is not required to consider whether he can avail himself of effective state protection.  Nor does the Tribunal consider the question of relocation since it does not find the applicant faces a real chance of serious harm if he returns to his home area.

6. For all of the above reasons, the Tribunal finds the applicant does not face a real chance of serious harm for a Convention ground should he return to India now or in the reasonably foreseeable future, and therefore finds the applicant does not have a well-founded fear of persecution.

   Muslim

7. The applicant claims he also fears persecution on return to India as a Muslim.  He claims that life in India is generally hard for a Muslim.

8. The Tribunal accepts that the applicant is a Muslim.  However, for the following reasons the Tribunal does not accept that the applicant faces a real chance of serious harm on account of being a Muslim, from the Sikh or Hindu community, or police or anyone else on return to India now or in the reasonably foreseeable future.

9. The applicant’s concerns about being a Muslim in India were not sufficiently worrying to motivate the applicant to raise this as a claim until at the hearing for the first time, which casts doubt as to the extent of his subjective fears in this regard.  Apart from indicating that he is Muslim, he makes no further mention of religion in the application.  The applicant did not provide any evidence that he has ever experienced harm in the past as a Muslim in India.  In fact, on his evidence, the applicant is well-educated and before he came to Australia in 2005, he enjoyed a good life in India.  Further, the Tribunal notes that the applicant’s parents remain in India, and no evidence has been out forward that they have suffered harm in the past for reason of their religion.

10. The Tribunal finds that the applicant has not experienced harm of any description in the past in India, including for reasons to do with his religion.  Given this finding, the Tribunal has gone on to consider if there is a real chance the applicant would be seriously harmed on return to India as a Muslim.

11. The Department of Foreign Affairs and Trade (DFAT) in its latest report about the country situation in India assesses that there is a low level of official discrimination against Muslims in India, particular in relation to police and security forces’ interaction with the Muslim community.  There has been a history of official violence involving Muslims in Jammu and Kashmir, but the situation has improved since the 2010 protests and riots.  There is a moderate level of societal discrimination against Muslims across India, which can be partly attributed to the community’s relatively low socio-economic status.[5]

    [5] DFAT 2015, Country Report India, 14 July 2015 at 3.25

12. The applicant told the Tribunal that India’s current political party in power has made it harder to be a Muslim in India.  He vaguely stated that there had been a push to “ban beef” in India and many Minister’s had been beaten up for this reason. 

13. Taking into account DFAT’s advice and the Tribunal’s findings that the applicant has not experienced any harm on the basis of his religion in the past in India, as well as the fact that on the applicant’s own evidence his family is considered “well off”, the Tribunal finds the chance that the applicant would be seriously harmed on return to India on the basis of being a Muslim to be remote.  His fear of persecution on this basis is not well-founded.

14. 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 he 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 he will be persecuted if he returns to India, now or in the reasonably foreseeable future, are not well-founded.

    Complementary Protection criterion

100.   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”). 

101.   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.

102.   The Tribunal accepts that the applicant’s parents are involved in an ongoing land dispute with a politician [Mr A].  However, on the applicant’s own evidence, his parents have not been seriously harmed in relation to this dispute in over six years, despite his mother being the main party to the dispute.  The Tribunal is not persuaded by the applicant’s explanation put forward at the hearing that this is because his parents have lived their life and have no fear.  For reasons set out above, the Tribunal also does not accept the applicant’s claims to have been threatened during a telephone call in November 2013, by [Mr A] or his associates in relation to this dispute.  For these reasons, the Tribunal finds that there is no real risk the applicant would be significantly harmed on return to India as a result of the land dispute between his parents and [Mr A], or because he is part of the family. 

103.   The Tribunal considered country information on land disputation in India.  Forbes India reported in June 2010 that “[a] third of the 11 million civil cases pending in the lower courts involve fights over property”, and “[a]s much as 1.3 percent of the gross domestic product (GDP) is locked away in such fights”.[6] Fuelling these property disputes is India’s chronic land shortage; BBC News reported that in 2012, India had a shortage of approximately 26 million dwellings.  Furthermore, “there is a huge pent-up demand for commercial spaces and land for building factories and huge infrastructure projects such as roads, ports and power plants”.[7] This land shortage has led to dramatic rises in property values, particularly in relation to greenfield sites near India’s rapidly growing cities.  A consequence of this is that opportunists seek to appropriate exclusive title of such lands with the intention of selling for profit.  Indian media reports indicate that these disputes can result in violence and sometimes deaths.[8]

[6] Kumar, K P 2010, ‘The Law of the Land’, Forbes India, 23 June Accessed 10 September 2012

[7] Srinivas, A 2012, ‘India: Why land is at the centre of all scandals’, BBC News, 10 December Accessed 1 March 2013

[8] Kamal, N 2012, ‘Father killed, son injured in land dispute’, The Times of India, 25 December

104.   Having regard to relevant country information, the Tribunal accepts that land disputes are not uncommon in India.  And, as already mentioned above, the Tribunal accepts that the applicant’s parents are involved in an ongoing land dispute with a politician, [Mr A].  However, the Tribunal found the applicant’s vague evidence as to the detail of the claimed threats toward his parents as well as the single warning to him over the telephone, in relation to the dispute raises doubts that he would be targeted for harm by the politician or any of his associates, as a result of the dispute.  It considers that if there was a real risk that he would be targeted for harm, he would have been able to give greater detail at the hearing about the threats to his parents and him.  Having regard to all the evidence, the Tribunal finds it is not satisfied that there is a real risk that the applicant faces significant harm if he returns to India for reasons of a land dispute between his mother and a local politician.

105.   The Tribunal considered the alternative actions of the applicant upon return to India in respect of the land dispute.  The applicant claimed his parents have taken steps to pursue registering the land into his mother’s name, but this has not been resolved to date.  On this evidence, and all the evidence before it, the Tribunal finds the applicant would not personally become involved to recover his mother’s land as action is already underway.  The Tribunal also considered whether the dispossession of the land purchased several years ago by his mother could amount to significant harm.  The Tribunal accepts that land is a precious commodity in India, however, it does not find the dispossession of the land of his parents is ‘significant harm’ as that term is defined.  The Tribunal considers that if [Mr A] is successful with retaining the land, the applicant’s parents will lose, at the very least, the money they invested in the land in 1982. Further, on the applicant’s evidence, the lives of his family are far more important than the loss of this land.

106.   As already mentioned above, the Tribunal accepts that the applicant is a Muslim.  However, the applicant’s concerns about being a Muslim were not raised as a claim until at the hearing for the first time, and he did not provide any evidence that he has ever experienced harm in the past as a Muslim in India. Rather, his evidence is that he is well-educated and enjoyed a good life in India before he came to Australia.  Additionally, the applicant’s parents remain in India, and no evidence has been out forward that they have suffered harm in the past for reason of their religion.

107.   The Tribunal considered the applicant’s refugee protection claims 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 claim that he faces harm because of his Muslim religion.  However, for similar reasons and findings set out earlier in its consideration of these claims under the Refugee Convention protection under s.36(2)(a), the Tribunal finds there is not a real risk he will face ‘significant harm’ as a necessary and foreseeable consequence of being removed from Australia to India.  Specifically, in respect of this claim, the Tribunal does not find there is a real risk that the death penalty will be carried out on him; or he will be arbitrarily deprived of his life; or he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment, if he returns to India because of his religion, or generally.

108.   Further, having considered all the evidence before it, and in particular the applicant’s evidence of the claimed land dispute, the Tribunal is not satisfied there is a real risk that he will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment, for these reasons, or for any other reason, if he is removed to India. 

109.   For these reasons, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India as the relevant receiving country, there is a real risk that he will suffer significant harm.

CONCLUSION

110.   For 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).

111.   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).

112.   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

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

Nicola Findson
Member

< 1 March 2013; ‘Elderly killed by son over land dispute in Punjab’ 2012, Jagran Post, 24 June
< Accessed 1 March
2013; ‘Son held for killing father over property dispute’ 2012, ZeeNews, 26 June
< 10 September 2012; ‘Siblings hacked to death’ 2012, WebIndia, 8 September
< Accessed 10 September 2012;
‘Woman burnt alive over property dispute’ 2012, WebIndia, 29 August
< Accessed 10 September 2012;
‘UP: Father-son duo killed over property dispute’ 2012, Zeenews, 9 September
< 10 September 2012; ‘Neighbour shoots man’ 2012, The Tribune, 28 August

< Accessed 10 September 2012