1508944 (Refugee)

[2017] AATA 823

1508944 (Refugee) [2017] AATA 823 (9 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1508944

COUNTRY OF REFERENCE:                  India

MEMBER:Susan Pinto

DATE:9 May 2017

PLACE OF DECISION:  Sydney

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

Statement made on 09 May 2017 at 11:51am

CATCHWORDS

Refugee – Protection visa – India – Political opinion – Khalistan separatist movement – Bomb blast in village – Family members killed – Credibility issues

LEGISLATION

Migration Act 1958, ss 36(2)(a), (aa), (b), or (c), 65, 499

Migration Regulations 1994, Schedule 2

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.

BACKGROUND AND STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant claims to be a citizen of India. He claims that he was born on [date] in [Town 1] in Kashmir in India.  He arrived in Australia as an unlawful maritime arrival [in] January 2013. He did not have a passport when he arrived in Australia. He was detained at [an] Immigration Detention Centre and then at [another] Immigration Detention Centre. He was released into the Australian community on a Bridging visa [in] May 2013.

2. The applicant applied for the Protection visa [in] June 2013. The applicant claimed that he was suspected of involvement in a Khalistan separatist movement which was agitating for a separate state in Kashmir, India. He claimed that in 1998 when he was approximately [age] he fled from India to [Country 1] by boat. He claimed that he remained in [Country 1] unlawfully for several years until he left [Country 1] by boat for [Country 2] and then travelled by boat to Australia in early 2013.

3. The delegate of the Minister for Immigration refused to grant the Protection visa [in] June 2015. The delegate was not satisfied that the applicant had made reasonable attempts to provide evidence of his identity, but accepted that the applicant was a citizen of India and that his residence in [Country 1] was illegal. The delegate did not accept any of the applicant’s other claims, finding that he was not a truthful witness and his evidence during the Department interview was confused, inconsistent and not credible.

4. The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa. 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).

5. The issue in this case is first whether the applicant has a well founded fear of persecution for one of five Convention reasons which include his race, religion, nationality, membership of a particular social group, or his political opinion. If the applicant does not meet the Refugee criterion, the Tribunal must consider whether he meets the Complementary Protection provisions, which require the Tribunal to be satisfied that there is a real risk that he will suffer significant harm, which includes arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The relevant law is attached to this decision.

   CLAIMS AND EVIDENCE

   Entry interview

6. The applicant attended an entry interview at [the first] Detention Centre in [city] [in] February 2013. The applicant is recorded as stating that he was born in India on [date]. He stated that from [year] to 1994 he lived in [Town 1], “Cashmere” and from 1994 to 1998 he lived in [Location 1]. He stated that from 1998 until 2012 he lived at [a stated address in Country 1]. He stated that he has not lived anywhere else. He stated that his father is deceased and “died 1970 in fight with Pakistan”. The applicant also stated that his mother and [number] siblings had “died in 1970 in a fight with Pakistan in Cashmere”. He answered no in response to questions as to whether he has a wife or children.

7. The applicant gave, as his emergency contact, [Mr A], his friend. The applicant gave details of [Mr A]’s mobile telephone number as [number].

8. In response to a question as to why he left India, the applicant states that he was in fear because the Indian government knows he is Indian but they think he was helping the Pakistanis so they want to kill him. He stated that it is “written that I must be caught and put in prison for life or killed”. He stated that there was always fighting and bombings in India in 1998. He stated that there was no other reason he left. He stated that he believes if he returns to India the Indian government will catch him or kill him because “it is written that they will imprison me for life or kill me”.

9. A further entry interview was undertaken at [the first detention centre] [in] March 2013. The applicant is recorded as saying that his father, mother, [and siblings] passed away about 15 years ago. He stated that he finished school when he was [age] and he attended school for [number] years. He said that his address in India was [Location 1], in [Town 1] Cashmere. The applicant stated that “yes it is where I lived there approx. [number] years altogether”.

   Application to the Department

10. When lodging the application to the Department, the applicant stated on the application form that he speaks, reads and writes Hindi and he speaks Malay. He stated that he arrived in Australia as an unauthorised arrival [in] January 2013. The applicant stated that he is from [Town 1] in Kashmir state. He stated that he has had [number] years of education at [a] High School in [Location 1] from [year] to [year]. He stated that from 1995 to 1998 he worked [in his father’s business] in Kashmir and from 1998 to [November] 2012 he was employed at [a workplace] in [Country 1] as a [occupation]. The applicant stated that he resided in Kashmir until 1998 and from 1998 until [November] 2012 he resided illegally in [Country 1] and from [December] 2012 to [January] 2013 he resided illegally in [Country 2].

11. The applicant stated on the application form that his parents and [siblings] died in 1998. He gave no details of a spouse or children and indicated that he had never been married or in a de facto relationship.

12. On the application form, the applicant named [Mr A] of [address] as a friend and contact in Australia. He stated that [Mr A] was born in Haryana in India.

13. The applicant provided no details of a current or previous passport.

14. The Department’s Identity Integrity Checklist states that the community link was initially noted as a friend, but “however CSP notes state this person as client’s brother”. The report also states that the “Imtel report states client was born in Haryana, whilst client claims to be born in Kashmere”. The Identity Integrity checklist also states that there are concerns regarding the applicant’s citizenship, country of birth, ethnicity or religion and concerns “on [date]/05/2013, client advised brother’s contact number ([variation of Mr A] Ph: [number]). There is no mention of [variation of Mr A] as a sibling on application or as an association in ICSE. There is a [Mr A] mentioned on Arrival interview as a friend (under community contacts in Australia) with an identical contact number, refer attached CSP screenshot”).

15. In a statutory declaration, dated [in] May 2013, the applicant states that he has provided a “summary of my claims” and it is not an “exhaustive statement”. He stated that he will provide further information during the interview with the Department officer. The applicant states that he was born in Kashmir on [date] and he is an Indian citizen and his religion is Hinduism. He states that he lived in Kashmir until he was [age] and he then fled Kashmir to live in [Country 1]. He lived in [Country 1] illegally for about 15 years and he then went to [Country 2] before travelling to Australia.

16. The applicant states that his family has always lived in Kashmir where they worked as [occupation]. His family lived in an area of Kashmir that was controlled by the Indian government. They lived around two hours away from the Pakistani controlled part of Kashmir. There is a long running dispute between the Government of India and although he does not remember much of his childhood in Kashmir he remembers that there was always conflict around his village, but up until he was around [age] his village was not directly attacked.

17. The applicant states that when he was about [age] he was away from his village visiting his [relative] in Haryana when there was a bomb blast in his village. The Indian news reported that the bomb blast was part of an attack by Pakistani insurgents who had attempted to take control of Kashmir. About three days after the bomb blast the applicant saw his name in a newspaper. The applicant and about 20 other people were named as wanted by the Indian authorities in relation to the attack in his village. The article said that if he was found by the government he would be killed.

18. The applicant returned to his village and was told that his family had been killed in the bomb blast. A number of homes in the village had also been destroyed in the blast. He learned that his family had been killed at home in the explosion. He had lost his whole family in the bomb blast and he was so scared that he would be caught so he made arrangements to leave India.

19. The applicant fears that if he returns to India he will be seriously harmed or killed by the Indian authorities because he has been imputed with a political opinion of support for the Pakistani insurgency in Kashmir. He believes that this may be because he was away from the village during the bomb blast and he is a young man from an area where the Pakistani insurgency was active. The applicant fears he may be executed by the Indian authorities if he returns to India.

20. On 19 June 2013, the representative provided an amended form regarding the applicant’s family members. The representative submitted that it has “recently been brought to our attention” that details of the applicant’s ex-wife and [number] children have been omitted from the Protection visa application. The representative submits that the applicant’s [number] children are currently living with their [grandparents] in [Country 2] and the children are financially dependent on the applicant who sends them money. The applicant provided details of his [ex-wife] born on [date] in [Country 2], residing in [Country 1]; his [child], born in [Country 1] on [date], living in [Country 2]; his [child], born in [Country 1] on [date], living in [Country 2]; and his [child], born in [Country 1] on [date], living in [Country 2].

21. The applicant was interviewed by the delegate [in] April 2015. The Tribunal has listened to the CD Rom recording of the interview. The delegate discussed various issues with the applicant, including his evidence as to where he lived in India. The delegate advised the applicant of his concerns that the applicant is in fact from Haryana and not from Kashmir.

22. Following the Department interview, the representative provided a submission to the Department [in] June 2015. In the submission, the representative submitted that the applicant instructs that it took two hours to travel to his [relative]’s house and two days and two nights to travel to [Country 2]. The applicant instructs that he was scared and confused during his interview and this is what caused him to confuse these times. It is submitted that this is plausible in light of the applicant’s mental state and lack of education. It is also submitted that the applicant cannot remember much about his home village because he left a long time ago. He instructs that his village was called [name], in [Village 1], near [Location 1] and Kashmir and it was a small, far away from the city and in a mountainous area. It is submitted that “there is a remote, mountainous area called [Village 1] in [Location 1] and Kashmir where a small village is located. We submit that this area aligns with [the applicant]’s description of his home town, and it is open to you to conclude that this is his home village”. The representative submits that the applicant was not born in Haryana and “although there is a place called [District 1] near Haryana, this is not the area the applicant referred to”. It was also submitted that the applicant cannot provide any identity details or the newspaper article where he was mentioned as a terrorist. It is submitted that he was able to read enough Hindi to read his name in a newspaper.

23. Birth certificates for the applicant’s [Country 1] born children were provided to the Department.

    Application for review

24. The applicant appeared before the Tribunal on 30 March 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. The relevant evidence is discussed below.

25. Following the hearing, the Tribunal wrote to the applicant pursuant to s.424A on 4 April 2017. The Tribunal invited the applicant to comment or respond on various inconsistencies in his evidence at different times. The applicant was advised of the relevance of the information and invited to provide comments or a response by 27 April 2017.

26. On 12 April 2017, the applicant telephoned the Tribunal to advise that he was having difficulty understanding the letter. He was advised to contact the Translating Information Service or ask a friend. The applicant said that his friends were busy. A Hindi speaking officer of the Tribunal assisted the applicant to understand the contents of the letter and advised that the response is due on 27 April 2017.

27. On 24 April 2017, the Tribunal received an e-mail from a migration agent stating that he had made an application to the Department for information under the Freedom of Information Act (FOI) and he needed that information in order to comment on the adverse information sent to him. The documents requested from the Department included IMA arrival notes relating to his screening in or out of detention; his health records held by the Department; written, digital, audio or visual records of all records; a detention notice; TPV application with all related documents; TPV decision and related documents: and any other documents relating to his detention.

28. At the request of the Tribunal, the migration agent was advised that he is not an authorised recipient and if the e-mail was intended to be a request for an extension of time then it was refused and the response was due on 27 April 2017.

29. On 27 April 2017, the Tribunal received an appointment of representative form and a copy of the letter declining the request for an extension of time was sent to the representative.

30. On 1 May 2017, an officer of the Tribunal telephoned the representative and advised that although the request was refused, the Tribunal would have regard to any information received by 5 May 2017.

31. On 4 May 2017, the Tribunal received a further request for an extension to provide the relevant documents. The representative submitted that the applicant received the s.424A letter by post and he contacted his office a week later. He stated that “particular information requested by the member related to documents held by the Department. “Our client is not in a position to respond as requested unless he receives relevant documents and information held by the Department”.

32. On 5 May 2017, the applicant’s representative was advised by e-mail that the Tribunal has decided not to grant an extension of time and that comments or a response must be received by 8 May 2017, and that the Tribunal intended to proceed to a decision if comments or a response were not received by close of business on Monday.

33. At the time of the Tribunal’s decision, no response or comments have been provided to the Tribunal’s s.424A letter of 4 April 2017.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the applicant have a well founded fear of persecution or is there a real risk that he will suffer significant harm?

34. The Tribunal must consider whether the applicant has a well founded fear of persecution in his country of nationality, or whether there is a real risk that he will suffer significant harm in his receiving country. As such, it is necessary to determine the applicant’s citizenship for the purposes of his country of nationality for the Refugees Convention and his receiving country for the Complementary Protection provisions.

35. As indicated above, apart from providing some birth certificates for his children and an Australian driver’s license, the applicant has not provided any documentation regarding his identity or his citizenship. The Tribunal considers that the task of determining the applicant’s nationality is complicated not only by the absence of any identity documentation, but also by his poor credibility and unwillingness to be forthcoming about his circumstances. Nevertheless, given that the applicant has at least consistently claimed that he is a citizen of India, and in the absence of any other evidence relating to [Country 1] or [Country 2] citizenship, the Tribunal is prepared to accept that the applicant’s only citizenship is Indian and has assessed him against India as his country of nationality for the purposes of the Refugees Convention, and as his receiving country for the purposes of the Complementary Protection provisions. However, the Tribunal does not accept any of the applicant’s claims as to his experiences in India, when he left India, or his reasons for leaving that country. The Tribunal’s consideration of the evidence and its reasons for reaching these conclusions follows.

36. The applicant claimed during the Department interview that he travelled to [Country 2] by boat from India when he was [age], as stated in his written claims. The applicant has claimed that he resided in [Country 1] for some 14 years as an unlawful non citizen, and although he initially claimed he was unmarried and had no children, he later claimed that his wife was also residing in [Country 1] where they met, married and had [number] children. He claimed that his wife is only an [Country 2] citizen. He denied he had [Country 2] citizenship through his [Country 2] wife. The applicant claimed that he had initially said he was never married and did not have any children because his mental state is not good and when he thought about his wife he would become upset. He also told the delegate that he was able to remain in [Country 1] without documentation for [number] years because although he was caught by the police on several occasions whilst working without permission, he would pay them money. 

37. During the Tribunal hearing, the applicant confirmed his claims that he lived in [Country 1] unlawfully for about 14 years. The applicant stated that he was about [age] when he went to [Country 1]. His friend paid some agents in India and he travelled from [Country 1] by boat. The applicant stated that no-one accompanied him from India on the boat and he did not know from where the boat departed in India. When asked several times by the Tribunal what he did when he arrived in [Country 1], the applicant eventually stated that he was walking around when he saw some boys from India and he talked to them. The applicant lived and and worked at some [workplaces] and he was able to save the money to travel by boat to Australia. When the Tribunal advised the applicant that he had previously said that he was [age] when he went to [Country 1], the applicant stated that his brain does not always function well as a result of the fact that he is separated and does not see his children. The applicant stated that he has [number] children, [number] who were born in [Country 1], and one who was born in [Country 2]. When asked the age of the child in [Country 2] and when the child was born, he stated that he does not know and does not have it in his brain. When the applicant was advised that if his child was born in [Country 2] he must have been living in [Country 2] for some period of time, the applicant then indicated that he was confused and he does not remember his child’s date of birth. The applicant also confirmed that his wife is [a Country 2] citizen. When asked why he did not obtain [Country 2] citizenship on the basis of his wife, if he was living unlawfully in [Country 1] and he has previously claimed that his ability to work there was at the whim of the [Country 1] police, the applicant stated that he did not make any inquiries and his wife later left him. In response to the Tribunal’s comments that he and his wife had been together until 2011 and he considerable opportunity to obtain [Country 2] citizenship on the basis of his wife’s citizenship, the applicant indicated that he did not know how to obtain citizenship. He also stated that it is difficult to earn an income in [Country 2]. 

1. The Tribunal does not accept the applicant’s explanation for the inconsistencies and problematic nature of the applicant’s evidence as discussed above. First, the Tribunal does not accept the applicant’s explanation for his failure to record details of his wife and children in his initial application, and considers that he has provided deliberately misleading information regarding his wife and children. The Tribunal also does not accept the applicant’s explanation for the inconsistencies regarding his age when he left India for [Country 1]. The Tribunal considers that had the applicant made a harrowing journey at a young age, alone after the death of his parents, he would know and be able to recall whether he was [age], [age] or [age] years of age at that time. In the Tribunal’s view, the inconsistencies in this issue raise serious doubts regarding his age when he left India and the year in which he left India.

2. The Tribunal further considers that the applicant’s evidence as to his arrival in [Country 1] after a boat journey without his family was vague and unpersuasive, and indicative of the fact that he was not speaking from his own experiences. The applicant also became vague and unpersuasive when he was asked about his [child] who was born in [Country 2], which indicated that he had a more significant period of residence in [Country 2] before he caught a boat to Australia than he has previously claimed. The applicant’s explanation for why he would not have sought to acquire [Country 2] citizenship, given that he appears to have been in a relationship with [a Country 2] citizen for some years, was similarly vague and unpersuasive. The Tribunal considers that the applicant’s evidence in relation to these issues raises serious concerns that he did not arrive in [Country 1] by boat at as a young boy when he was [age], [age] or [age] years of age and he has also not been truthful about his period of residence in [Country 2] and [Country 1]. The Tribunal also considers that his evidence raises concerns that at some time he has held identity documents which show his citizenship, and it was these documents he used to travel to both [Country 1] and [Country 2], and he has deliberately withheld these documents. This in turn raises concerns that he in fact has not provided those documents in an attempt to provide misleading evidence about his citizenship, and his periods of residence in India, [Country 1] and [Country 2].  

3. In addition to the above, the Tribunal considers that the applicant’s evidence as to his residence in Kashmir was similarly unpersuasive. Thus, when asked by the delegate how far his village was from his [relative]’s house, the applicant stated that it was “quite far but I do not know how many kilometres”. When asked how long it took to travel between his home in Kashmir and his [relative]’s house in Haryana, the applicant stated that he travelled by bus to his [relative]’s house and it took two days and two nights. When the applicant was advised by the delegate that the [location] is in Haryana, the applicant stated that he does not know. He also denied that he had previously said he was born in Haryana. The delegate advised the applicant that when he was questioned on his arrival in Australia as to where he was from he had said he was from Haryana. As indicated above, the representative submitted after the Department interview that in fact it took two hours to travel to Haryana from his home in [Location 1]; he was confused and he had meant it took two days and two nights to travel between [Country 1] and [Country 2]. When this issue was discussed during the Tribunal hearing, the applicant stated that it took two days and two nights to get from his home in Kashmir to Haryana. When advised of the inconsistencies in his evidence at different times, the applicant stated that his brain is not working well because of the break up with his former wife.

4. The Tribunal accepts that the applicant has claimed he was quite young at the time he left India. However, the Tribunal does not accept the applicant’s explanation for the inconsistencies in his evidence. The Tribunal does not accept that the applicant would confuse a boat trip that he purportedly did when he was a young boy living in India with a boat trip he did between [Country 1] and [Country 2] when he was in his late [age]. The Tribunal considers that the applicant’s evidence is inconsistent because he did not travel between [Location 1] and Haryana to his [relative]’s house as he has claimed. The Tribunal considers that the evidence in relation to this issue in turn raises concerns that the applicant is not from [Location 1] in Kashmir as he has claimed.

5. The Tribunal also considers that other aspects of the evidence also raises concerns as to the applicant’s claimed residence in Haryana before he left India. As indicated above, when asked about this issue during the Department interview he stated that his village is [name] in a district called [District 1] which is part of Kashmir. He stated that [District 1] was near a place called [name]. As stated above, the representative submitted after the Department interview that the applicant is from the [Village 1] in [Location 1] and Kashmir where a small village is located. However, the information cited by the delegate and confirmed by the Tribunal’s own inquiries, indicates that [Village 1] is located in [the] Baramula District.[1] The name of the village and the district are, therefore, inconsistent with the applicant’s claims that his village was located in [District 1]. The evidence obtained by the delegate and confirmed by the Tribunal’s inquiries also indicates that the place [District 1] [town] is located in Haryana.[2] The Tribunal does not accept the applicant’s explanation for the inconsistencies in the evidence and considers that this raises further concerns in relation to his claims to be from Kashmir and to have fled from that place when he was a young boy. 

   [1] [Information deleted].

   [2] [Information deleted].

6. In addition to the above, the applicant’s evidence about the events in Kashmir is also confused and inconsistent and further indicative of the fact that his claims to have been considered a member of the Khalistan movement in Kashmir in 1998 are fabricated. During the Department interview, the applicant was asked about the events which he claimed led to him fleeing from Kashmir. The applicant stated that in 1998, when he was about [age] or [age] years of age, there was a bomb blast which killed his family in his village. He claimed that his name was reported in a newspaper and he was told that his name was in the newspaper and he should leave India. He claimed that an agent organised for him to leave India and his friend paid the money for his departure. He told the delegate that he did not return to his village after he found out about the bomb blast and he subsequently fled the country by boat with the assistance of an agent.  When asked by the delegate why the Indian authorities would have suspected him as a person involved in the bomb blast, the applicant stated that he does not know. When advised that he has previously said he was suspected because he was out of his village at that time, the applicant stated that he does not remember what he said earlier. He stated that he sometimes forgets things because the incidents occurred many years ago. The applicant was also advised by the delegate that when he first arrived in in Australia he said that the incident occurred in 1970, to which he again referred to his confusion due to the separation from his wife. When the applicant was asked by the delegate about the ages of his parents when they died he stated that his father was [age] and his mother was [age]. The applicant was reminded that he had said during the first interview that his father was born in [year] which would mean he was [age] in 1998.

7. When the applicant was asked by the Tribunal during the hearing the age of his parents when they died, he stated that his father was [age] and his mother was [age]. The Tribunal commented that if his mother was [age] when she died in 1998, and he was [age] or even younger when he left India, she would have been at least [age] when he was born. The applicant again indicated that he was confused. The applicant also told the Tribunal that he left [Location 1] in Kashmir in 1998 after there were riots and all members of his family died. The applicant believes that his family was killed in a bomb blast at that time. He told the Tribunal that he was staying with his [relative] in Haryana at the time of the bomb blast. He heard about the bomb blast from his friend and he also then heard that his name was on a list of wanted persons. The applicant returned to [Location 1] but subsequently left again. When asked by the Tribunal why he believes he would have been reported as a terrorist at the age of [age], and asked whether he or his family had any involvement in the Khalistan movement or any independence movements, the applicant stated that none of his family members had any such involvement.

8. The Tribunal has had regard to the applicant’s explanation for the serious inconsistencies between his evidence. However, in the Tribunal’s view the inconsistencies in relation to various issues above, including the ages of his parents when they died and whether he returned to Kashmir after he learned of the bomb blast, as well as his deliberately vague and unpersuasive evidence regarding his wife, children and residence in [Country 1] and [Country 2], are indicative of the fact that his claims are fabricated. The Tribunal is drawn to the conclusion, having regard to significantly problematic evidence, that the applicant did not leave India by boat by himself when he was aged [age], [age] or [age] and his family was not killed in a bomb blast. Although the Tribunal notes that the delegate stated that the applicant at some point claimed to be from Haryana and purportedly stated that his brother is in Australia and is from Haryana, the Tribunal is unable to locate the source of these findings on the Department file (apart from some screenshots) and makes no adverse findings in relation to these issues. The Tribunal accepts, therefore, that the applicant has not previously said that he is from Haryana and the Tribunal makes no adverse findings on the basis of this evidence. However, the Tribunal is not satisfied on the basis of the other evidence that the applicant is from Kashmir as he has claimed, and considers the evidence instead indicates that he previously lived in the state of Haryana in India.

9. Having considered all of the evidence, the Tribunal does not accept that the applicant lived in Kashmir in 1998 and fled from Kashmir to [Country 1]. The Tribunal has found that the applicant’s evidence in relation to this issue is confused and inconsistent and also found his evidence as to why he would have been considered to be a terrorist who was involved in a liberation movement at the age of [age] to be unpersuasive. The Tribunal does not accept his name was in a newspaper article as a terrorist or that his name is on any “wanted” lists or that he has an adverse political profile of any kind in India. The Tribunal does not accept that the applicant will be unable to return to India and re-establish himself. Although the applicant has claimed he has no family members in India, the Tribunal has found that the applicant is an untruthful and unreliable witness and in all the circumstances the Tribunal is not satisfied that he has been truthful about the presence of family members in India.

10. In reaching the above conclusions, the Tribunal has considered the applicant’s claims that he is mentally unwell and his ability to give consistent evidence has been affected by his marital breakdown and separation from his children. The Tribunal accepts that the applicant is undoubtedly upset as a result of these issues. However, the Tribunal does accept that the applicant was unable to give consistent evidence or that his memory was affected as a result his separation from his wife, memory problems or stress and anxiety arising from these issues. The Tribunal considers that at hearing he became deliberately vague and unforthcoming about his circumstances when he considered it convenient and the problematic nature of his evidence is due to the fact that he is an untruthful witness who has fabricated the entirety of his claims.

11. The Tribunal is also satisfied that the applicant had ample opportunity to comment or respond on the Tribunal’s s.424A letter, which was first sent to the applicant in early April 2017. These issues were also discussed with the applicant during the hearing. He was also represented by experienced migration agents before the Department who clearly did not consider that the documents requested some four years after the application was lodged are necessary for him to fully present his case. The Tribunal does not accept that the applicant was unable to fully respond to the Tribunal’s letter without the provision of the documents which were requested of the Department several months after the lodgement of the application to the Tribunal and only after the hearing and is satisfied that it is appropriate in all the circumstances to proceed to a decision without allowing the applicant further time to comment or respond on the issues raised in the Tribunal’s post hearing s.424A letter.

12. The Tribunal is not satisfied, having considered all of the evidence, that there is a real chance that the applicant will suffer serious harm for reasons of his race, religion, nationality, membership of a particular social group or his political opinion. The Tribunal finds, therefore, that the applicant does not have a well founded fear of persecution for one of five Convention reasons, which include his race, religion, nationality, membership of a particular social group or his political opinion.

13. The Tribunal is also not satisfied that there are substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed from Australia to India that there is a real risk that he will suffer significant harm, which includes arbitrary deprivation of life, torture, the death penalty, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

    CONCLUSIONS

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

15. 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).

16. 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

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

    Susan Pinto
    Member

    
    

    RELEVANT LAW

18. 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.

19. 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).

20. 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.

21. 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’).

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.