1509197 (Refugee)

[2016] AATA 4859

1509197 (Refugee) [2016] AATA 4859 (25 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1509197

COUNTRY OF REFERENCE:                  India

MEMBER:Chris Thwaites

DATE:25 February 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 25 February 2016 at 3:11pm

CATCHWORDS

Refugee – Protection visa – India – Federal Court Remit – Particular social group – Member of Communist Party of India – Witness to a murder – Ban on consumption of beef – Threats from Dalit Human Rights Movement members – Witness credibility – Effect of medical condition on evidence

LEGISLATION

Migration Act 1958, ss 5(1), 36, 48A, 65, 91R, 414, 424A, 499

Migration Regulations 1994, Schedule 2

CASES

AMA15 v MIBP [2015] FCA 1424

SZGIZ v MIAC (2013) 212 FCR 235

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of India, applied for the visa [in] October 2013 and the delegate refused to grant the visa [in] May 2014.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. The Tribunal has before it the Department’s file relating to the applicant’s protection visa application and the Tribunal’s file relating to the review application.

4. According to departmental records the applicant arrived in Australia [in] November 2010, and made his first protection visa application [in] December 2010. That application was refused [in] March 2011, and that decision was affirmed by the Refugee Review Tribunal on 2 August 2011. The applicant’s subsequent applications for judicial review were dismissed by the Federal Court [in] March 2012, the Full Federal Court [in] August 2012, and the High Court [in] December 2012. The applicant’s application for Ministerial Intervention was finalised as “Not Considered” [in] September 2013. The applicant made his second protection visa application [in] October 2013.

5. The applicant’s written claims for protection are contained in his visa applicant forms and in a written statement attached to his visa application forms.

6. In the visa application forms the applicant states he was told by his parents that members of the CPI(M) went to look for him. He knows many secrets about CPI(M) and believes they think he will reveal those secrets to the public. The applicant claims he cannot go back to India because the CPI(M) and DHRM/Popular Front are very powerful and have members all over the country. The applicant then refers to his attached statement.

7. In summary, in the applicant’s written statement attached to his visa application forms, the applicant claims that he was born in India in a town named [Town 1] in Kerala. He spent many years abroad as a youngster. The applicant states there should be more growth and development in India in all aspects, and there is also a need to improve the livelihood of the lower class by removing poverty to some extent. A question before the applicant was how he could play a role in development despite being a farmer. It was then he chose politics as a right way to serve the nation. It was hard for the applicant to be part of the Indian National Congress because their rule of 50 hasn’t bought development in the country. Therefore he decided to join the Communist Party of India (CPI(M)). It is considered a party of the working class. He joined the party in 2001.

8. The applicant claims that in the beginning he was only a part-time member of the party. He participated in many processions and party meetings. During that time he was also a member of Kerala’s Catholic Youth Movement (KCYM). The applicant claims that being a communist, one should face a lot of suffering, since the State and Central government is ruled by the opposition. Many fake cases were charged against party members. His party members were jailed on fake charges even of murder. Nothing could stop their voice or fear them from delivering India from the hands of evil and corrupt rulers. They have been tortured by the police and the ruling party on a number of times.

9. In 2007 the applicant was promoted as an active local member by the party due to his commitment to the party for years. Being an active local member, one has to spend all the time for the progress of the party. In other words it’s hard to have a regular job. The applicant’s job was to bring awareness to the people about the corruption level in the government. The applicant used to address people via speeches or notices. He also used to organise party meetings and his party’s movements were conducted in a town called [Town 1].

10. In September 2009, Dalit Human Rights Movement (DHRM) activist attacked an innocent civilian called Shivaprasad, in the aftermath of a festival occasion called “Chathaya Dinam Celebrations”. The applicant was a witness to this incident. The applicant states Shivaprasad was murdered so the DHRM could increase their popularity in dominance in Varkala. The applicant states the DHRM consists of Dalits (schedule caste) members, and it is pro Dalit organisation that was created to monitor atrocities on Dalits and indulge in their welfare.

11. The applicant claims his party was first to raise a voice against them and invited fury from the DHRM. The applicant claims they have tortured him and many members of his party after the incident. The applicant was tortured in a place called [name deleted]. He received a lot of severe injuries due to this incident. The applicant claims they usually attack in the cover of darkness, leaving no trace of evidence. Even the police failed to take action against them. Also the media doesn’t highlight their criminal activities much.

12. The applicant claims that even though they would be tortured by them, their voices forced police to arrest people involved in the murder. Many of the activists were arrested. Some of the activists are from his neighbourhood [place]. Therefore the applicant has invited fury from the DHRM activists as well as some groups of people from his neighbouring place. This forced the applicant to go out of the state for a while, as per the opinion of his party for the safety of his life. His party took care of all his expenses. His party activists took him to Mumbai for a while in a private vehicle. He was shifted to Tamil Naidu as well. He was hiding in secret locations until the situation returned to normal.

13. After this situation returned to normal, the applicant returned to his home town. He, as well as many important members, were transferred to different states by the party. Many of the DHRM party members were arrested by the police and jailed. Unfortunately DHRM activists still had an eye on the applicant and were waiting for a right moment to attack him.

14. The major reason behind the applicant’s fear is that he was a witness to the murder. He fears for the safety of his life as well is his family. He hasn’t spoken to anyone about this incident due to fear and backlash from the members. Since they know the applicant is a witness to the murder and might inform police about the details of the murder, they fear this can result in further arrests of DHRM members. The applicant even changed his name in order to hide from DHRM members out of fear.

15. The applicant claims another incident took place in 2010. The hand of a lecturer was chopped by Popular Front Fundamentalists, since the lecturer had disrespected the Prophet Mohammed in his list of questions prepared for college examinations. The applicant’s party raised voices and invited fury from the Popular Front Fundamentalists, as they demanded the abolishment of the Popular Front from the central government. Many members were arrested after this incident but other members were trying to harm the applicant and his party members.

16. The applicant claims his party supported Prof. Joseph, however the college run by a Christian minority institution has dismissed Joseph from his job after the incident. The applicant’s party asked him to oppose the college authorities after this incident. Since he was a KCYM member, he couldn’t do the task of opposing the Christian minority institution authority. Also, the applicant found his party’s attitude towards Christian institutions was not good. It was due to the fact that the applicant is a God-fearing Christian.

17. The applicant states he was also afraid that his party’s attitude towards other people of his community would be harsh. Therefore, in self and community interest, he decided to leave the party. There are also personal issues behind him leaving the party. His own party was against him as he knew secrets of the party in their affairs. The party was afraid that he might leak this information to anyone.

18. The applicant states that during the 2010 elections, it was evident that the DHRM was supported by the Popular Front financially for contesting elections. Both the criminal organisations were together and were targeting their common enemies or rivals. Since the applicant opposed both organisations, he was a common target for them. He feared for his life again. His situation was a vulnerable since he was not under the protection of his party, therefore he was easy prey for them. The applicant ran away from his place and hid in his relatives and friends houses for a while.

19. The applicant soon found out that there was no point in running from one state to another in India since violence is everywhere and he was short of funds being a farmer. These circumstances made him flee from India to another country which is more safe. His parents supported him by mortgaging their only house. The authorities in India have forsaken him in all aspects as he has written letters to the [government officials]. However there was no action or reply. Even the police have nothing to do with the applicant’s issues. This is the reason he fled his country to live peacefully where he can have a family of his own. The applicant claims this is what happened to him when he acted for India’s development. He might not be a single person who faced such circumstances, he might have walked through the path where many walked and failed. He believes his goodness in serving the nation is still alive. He could not do much for the country wherein he lived.

20. On 13 May 2014 the delegate refused to grant the applicant a protection visa. According to the delegate’s decision record, the delegate refused that application because the applicant did not attend his protection visa interview scheduled for [May] 2014 and the delegate was unable to obtain further essential details regarding his refugee claims, and was unable to test the applicant’s assertions. The delegate was unable to be satisfied as to the veracity of the applicant’s claims. Therefore the delegate was not satisfied the applicant had a real chance of being persecuted for a refugee’s convention reason and was not satisfied the applicant’s fear was well founded. The delegate was not satisfied Australia had protection obligations to the applicant under the Refugees Convention, and therefore the applicant did not meet the criteria for the grant of a protection visa under s.36(2)(a). The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there was a real risk the applicant would suffer significant harm. Accordingly the delegate was not satisfied Australia had protection obligations to the applicant under s.36(2)(aa). Therefore the delegate was not satisfied the applicant was a person in respect of whom Australia has protection obligations under s.36 of the Act.

21. On 17 June 2014 the applicant applied to the Refugee Review Tribunal for review of that decision.

22. On 5 March 2015 the Refugee Review Tribunal (RRT) affirmed the delegate’s decision because the applicant did not appear before that Tribunal on the day and at the time and place he was scheduled to appear, and that Tribunal noted the applicant’s original protection visa application was refused by the delegate and by a previously constituted Tribunal for reasons of comprehensive credibility problems. The RRT noted the applicant had raised no significant new facts in his fresh protection visa application, but had rather summarise claims that had already been rejected for lack of credibility. In those circumstances the RRT was not satisfied, on the evidence before it, that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there was a real risk he will suffer significant harm. Therefore that Tribunal affirmed the decision not to grant the applicant a protection visa.

23. On 9 April 2015 the applicant applied to the Federal Circuit Court of Australia for judicial review of the RRT decision.

24. On 3 July 2015 the Federal Circuit Court of Australia ordered by consent that the decision of the Refugee Review Tribunal dated 5 March 2015 be quashed, and the Tribunal to re-determine the review application before it according to law. The reasons for the judgement in that matter noted the RRT had not engaged in any assessment of the applicant’s credibility or identified any new basis upon which it independently made adverse findings. The Department accepted that this was a failure by the Tribunal to conduct a review consistent with its obligations under s.414 of the Act, and also submitted that in the circumstances where information from previous decisions was to be used in the manner engaged in by the Tribunal, s.424A of the Act applied, and that there was a failure to comply with that provision.

25. On 25 August 2015 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 2 November 2015. On 24 September 2015 the applicant advised the Tribunal that he would attend the hearing.

26. On 2 November 2015 the applicant contacted the Tribunal by telephone and advised that he was unwell and could not attend the hearing. The Tribunal also received a copy of a Medical Certificate from [Dr A] dated 2 November 2015 indicating the applicant was seen on 2 November 2015 and was suffering from [an illness] and was unfit for normal duties on 2 November 2015. The applicant also provided a copy of a Medical [Form] and [another medical] Request from [Dr A] in relation to the applicant.

27. While the Tribunal considered the applicant’s request to reschedule the hearing after his next doctor’s appointment [in] November 2015, the Tribunal noted the Medical Certificate provided by the applicant indicated the applicant was unfit for one day, 2 November 2015. The Tribunal reschedule the hearing to 6 November 2015 and informed the applicant by telephone. The Tribunal asked if the applicant was unwell on that day, to provide a medical certificate giving information about why the applicant could not attend a hearing and answer questions. The Tribunal also wrote to the applicant on 2 November 2015 confirming the hearing had been rescheduled to 6 November 2015. 

28. The applicant appeared before the Tribunal in Sydney on 6 November 2015 to give evidence and present arguments. Initially the applicant told the Tribunal he was well enough to proceed. He told the Tribunal that he had experienced dizziness in the past and was on medication for [his illness], and suffered [a mental illness], and was stressed awaiting the results of medical tests and was concerned that a [a medical condition] may be causing his [illness]. The applicant told the Tribunal he was under stress and suffered from [a medical condition] and expected his doctor to prescribe [medication] in the near future, and that he had a problem with his memory, and couldn’t recall everything, and forgot names and dates, and this problem had only recently occurred in the last year. The Tribunal explained the reason why it had rescheduled the hearing to 6 November 2015 with reference to the medical certificate the applicant had provided which indicated the applicant was unfit for one day, 2 November 2015. During the hearing the applicant told the Tribunal on a number of occasions that he was well enough to proceed with the hearing. After the Tribunal had raised a number of concerns about the differences between the applicant’s oral evidence and his written statement, and raised its concerns about the applicant’s credibility, the applicant told the Tribunal he was going through [a mental illness] and was stressed and that when he had confirmed he was well enough to proceed, he had been referring to being physically well enough, and had not said he was mentally well enough. The Tribunal then discussed the applicant’s health conditions with him and his ability to participate in the hearing, and the applicant again confirmed he was well enough to proceed. The Tribunal concluded the applicant was well enough to participate in the hearing and was given the opportunity to participate effectively in the hearing. The Tribunal took a break during the hearing in order to reduce any stress the applicant was experiencing. At the conclusion of the hearing the Tribunal granted the applicant 18 days’ time in order to allow the applicant to provide any further evidence in support of his claim, including any medical evidence in relation to the applicant’s memory and medical conditions and their effects on the applicant’s memory and ability to recall details.

29. On 25 November 2015 the Tribunal received a facsimile from the applicant stating he was unable to get a copy of his membership card for the CPI(M) from India since he was not in contact with anyone for a while, and instead provided copies of hand written letters from[two office bearers] confirming his membership. The applicant also provided copies of an extract from the December 2009 Kerala Gazette in relation to his change of name, and an online ABC News article with the headline “Indian state bans beef, introduces jail time up to five years for possession” dated 4 March 2015. The applicant also provided a medical certificate from [Dr A] dated [in] November 2015 stating the applicant is suffering from [a mental illness] and has poor memory [and other symptoms] and is on  [medication] daily.

30. During the hearing the applicant told the Tribunal that he feared returning to India because he witnessed a murder, and knows the murderers were connected to the DHRM, who were his party’s political opponents. He told the Tribunal he saw them and they saw him.  The applicant also told the Tribunal he feared returning to India because he left the CPI(M) in 2009 and they have threatened him and are concerned he knows a number of party secrets, including political murders, and that he may join the opposition and share those secrets. The applicant also told the Tribunal he feared returning to India because he opposed the Popular Front in relation to a hand chopping incident, and the Popular Front is now aligned with the DHRM. The applicant later told the Tribunal his main concern is that he witnessed a killing, and has been threatened by the CPI(M), and is no longer protected by the CPI(M). The applicant also told the Tribunal he is concerned that people who eat beef in India are killed. He told the Tribunal he eats beef, and if he returned to India and ate beef he could be killed. He told the Tribunal since the election in 2014 there is a new law in India that if you kill beef or eat beef you can be imprisoned for five years.

    FINDINGS AND REASONS

    Nationality

1. On the basis of the copy of the applicant’s Indian passport, provided to the Department, the Tribunal finds that the applicant is a national of India. There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than India. Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act. As the Tribunal has found that the applicant is a national of India, the Tribunal also finds that India is the applicant’s “receiving country” for the purposes of s.36(2)(aa).

   S.48A Bar

2. During the hearing the applicant confirmed he had arrived in Australia [in] November 2010 and made his first protection visa application [in] December 2010 and that application had been refused [in] March 2011 and that decision had been affirmed by the Refugee Review Tribunal and his subsequent applications for judicial review had been dismissed. The applicant confirmed he made his second protection visa application [in] October 2013.

3. While the Tribunal acknowledged it had jurisdiction to review the decision in relation to the complementary protection criteria in s.36(2)(aa), it discussed with the applicant whether the Tribunal had jurisdiction to review the decision in relation to the refugee convention referred to in s.36(2)(a). The applicant told the Tribunal his claims and fear of returning to India has remained the same.

4. On the evidence before it the Tribunal finds the applicant made his first protection visa application [in] December 2010 and that application was refused with reference to the Refugee Convention criteria [in] March 2011, prior to the commencement of the complementary protection provisions on 24 March 2012.

5. Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a). In light of these authorities, the Tribunal has considered the applicant’s claims only in relation to s.36(2)(aa).

   Credibility

6. During the hearing the Tribunal asked the applicant about his background, his family composition, education and employment history, his political activities in India as well as his reasons for leaving India and his fears of returning.

7. On questioning the applicant told the Tribunal that he completed his visa application forms and the written statement himself and understood the contents of those documents and did not wish to make any changes. During the hearing the Tribunal raised its concerns about changes in the applicant’s oral evidence as well as differences between his oral evidence and his written statement. The Tribunal accepts that the stress of giving evidence and recalling emotional and upsetting events, as well as the passage of time, can affect a person’s ability to recall details. The Tribunal also accepts the applicant was taking medication for [his illness] at the time of the hearing. In light of the medical certificate from [Dr A], the Tribunal accepts the applicant has [a mental illness] and a poor memory and [other symptoms]. The Tribunal accepts the applicant’s oral evidence that he has a problem with his memory and couldn’t recall everything and forgets names and dates. Nevertheless the Tribunal does not accept the applicant’s medical conditions and poor memory and concentration explain the very specific concerns raised with the applicant in relation to the differences between his  initial oral evidence and his written statement, or his inability to recall critical events and the chronology of events consistently or until they were raised with the applicant. The Tribunal finds the applicant is not a witness of truth and it is not satisfied the applicant has told the truth about critical aspects of his claims. The reasons for this finding are discussed in more detail below.

8. During the hearing the applicant initially told the Tribunal that he was living with his parents in India before coming to Australia. He later told the Tribunal that he was in hiding and living with relatives for about three months before leaving India. When the Tribunal raised its concerns that the applicant’s later oral evidence was different to his initial oral evidence, the applicant told the Tribunal that the Tribunal had not asked him specifically, and stated that when you live with your relatives you feel like you are living with your own family members, and that he had lived with his family and then once he had the issues he went and lived with his relatives.

9. Later in the hearing the applicant told the Tribunal that when he was in hiding he was living with his relatives, especially his aunt. The Tribunal raised its concerns that the applicant’s oral evidence was different to his written statement which states that he ran away from his place and hid in his relatives and friends homes for a while. In response the applicant told the Tribunal he had lived with his aunt for a long time, then with his friends, and as the time passed by he remembered the long time with his aunt and that is why he mentioned that, and stress and the passage of time meant he forgot to mention staying with friends.

10. The Tribunal is not persuaded by the applicant’s responses. The Tribunal finds the applicant changed his oral evidence about where he was living prior to leaving India and coming to Australia. While the Tribunal has taken into account the applicant’s medical conditions and has a poor memory and concentration and that he had trouble remembering specific dates and times, and accepts the passage of time and stress and [the mental illness] can affect a person’s ability to recall detail, and accepts this may explain why he forgot to mention hiding at friends homes, the Tribunal does not accept this explains why he did not mention in his initial oral evidence that he was in hiding, and hiding at his relatives and friends homes. The Tribunal considers the change in the applicant’s oral evidence about where he had lived prior to leaving India reflects poorly on the applicant’s credibility and the reliability of his evidence and the claim that he was in hiding prior to leaving India.

11. During the hearing the applicant told the Tribunal that he joined the CPI(M) in 2002. The Tribunal raised its concerns that the applicant’s oral evidence was different to his written statement which states he joined the party in 2001. In response the applicant told the Tribunal he had initially told the Tribunal he joined the party in 2001 or 2002. The Tribunal is not persuaded by the applicant’s response. The Tribunal notes that when initially questioned about when he joined the CPI(M) the applicant did not indicate he had any problem with his memory of when he joined and was very specific that he joined the CPI(M) in 2002.  While the Tribunal accepts the applicant had trouble recalling some dates, he did not indicate he had trouble recalling this date.  While in isolation the Tribunal would not normally draw any adverse conclusions from this inconsistency, the Tribunal notes the difference between the applicant’s oral evidence and his written statement is between which year he joined the party as opposed to a specific date, and in light of the other credibility concerns, the Tribunal considers the difference between the applicant oral evidence and his written statement reflects poorly on the applicant’s credibility and the reliability of his evidence.

12. During the hearing the applicant told the Tribunal that he was attacked once by three of four DHRM guys, and although he was unable to recall the exact date he thought it was in 2008. The applicant confirmed that this was the only incident he remembers. The Tribunal raised concerns that the applicant’s oral evidence was different to his written statement which states “We’ve been tortured by the police and ruling party on a number of times”. In response the applicant told the Tribunal that “We” did not mean “I”. The Tribunal noted the word “we” usually indicated a person and others. The applicant then told the Tribunal he did have trouble and that there was not just one incident, and that what he was previously talking about was the hardest one he remembers. He told the Tribunal his life had been threatened in the past, during processions, on a number of occasions. While the applicant could not recall the dates of these incidents he told the Tribunal it happened a lot, approximately 50 times, over the period of seven or eight years. The people that threatened him were from the DHRM.

13. Later in the hearing when questioned further about the attack by the three of four DHRM people the applicant told the Tribunal that it happened before he witnessed the murder. The Tribunal noted the applicant’s oral evidence was different to his written statement which indicates the attack happened after he witnessed the murder in September 2009. In response the applicant told the Tribunal he was confused with years and dates. He also told the Tribunal he did not prepare for the hearing and had not reread his statement, and did not wish to read it again as it scared him, and he was only recollecting from his memory.

14. During the hearing the Tribunal noted the applicant’s written statement claims the applicant changed his name in order to hide from DHRM members and out of fear. On questioning the applicant told the Tribunal he changed his name from [Name 1] to [Current name] legally in 2009 or 2010, and then clarified his oral evidence and told the Tribunal he changed his name in 2010. The Tribunal noted the applicant’s passport indicated that it was issued in his current name in June 2009, in response the applicant told the Tribunal he changed his name in 2009. The Tribunal notes the extract from Kerala Gazette provided to the Tribunal after the hearing indicates the information about the applicant’s name change was published in [2009].

15. The Tribunal accepts the applicant has [a mental illness] and a poor memory and concentration and his ability to recall is affected by the passage of time and the stress of giving evidence, and the Tribunal accepts the applicant has trouble remembering everything and forgets names and dates, and the Tribunal has not drawn any adverse credibility conclusion from the applicant’s inability to recall exact dates or names. Nevertheless the Tribunal is concerned the applicant changed his oral evidence about how many incidents he recalled in response to an issued raised by the Tribunal. The Tribunal is also concerned the applicant was inconsistent in relation to the chronology of events, and about when he changed his name in order to hide from DHRM members.  The Tribunal considers the differences between the applicant’s oral evidence and his written statement reflects poorly on the applicant’s credibility and the reliability of his evidence.

16. During the hearing the Tribunal raised its concerns that the applicant had failed to mention in his oral evidence that he had written letters to the [government officials] as claimed in his written statement. The applicant told the Tribunal that when it had asked if he had done anything else, he thought the Tribunal was referring to something political or with his job activities, and the Tribunal had not asked him about if he had written any notes. The Tribunal notes that during the hearing the Tribunal was concerned the applicant had not mentioned writing the letters, and that is why it asked an open question about whether the applicant did anything else before he left India in relation to what was happening to him. On further questioning the applicant conceded the letters were political. The applicant told the Tribunal they were political, about things that had happened to him, but that he did not receive a response. He told the Tribunal he sent the letters in 2010 after he left the party. The Tribunal is concerned the applicant failed to mention writing the letters in his initial oral evidence.  The Tribunal does not accept this omission is explained by the nature of the Tribunal’s questions or the applicant’s understanding of what he was being asked. While the Tribunal accepts the applicant has [a mental illness] and a poor memory and concentration and his ability to recall details can be effected by the passage of time, and the Tribunal accepts the applicant has trouble remembering everything and forgets names and dates, and it accepts the passage of time and stress can affect a person’s ability to recall detail, the Tribunal is not persuaded this explains the applicant’s failure to mention in his initial oral evidence writing letters to the [government officials] as claimed in his written statement. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of his evidence.

    Complementary Protection

17. For the reasons outlined above the Tribunal finds the applicant is not a witness of truth and it is not satisfied the applicant has told the truth in relation to critical aspects of his claims.

18. During the hearing the applicant told the Tribunal he joined the CPI(M) in 2001/2002 and was promoted in 2007 and given a membership card and also given the responsibility to teach new members about party procedures and the law of the party. On questioning the applicant told the tribunal he did not have his membership card with him and thought it might be at home. The applicant also told the Tribunal he left the party in 2009. The Tribunal accepts the applicant had some limited knowledge of the CPI(M)’s history and structure and named Prakash Karat as the Secretary (the Tribunal noted the position held by Mr Karat was the General Secretary position). Nevertheless, the Tribunal found the applicant’s knowledge of the CPI(M) limited. The Tribunal would expect someone who had been as active in the party for the length of time the applicant’s claims to have been involved, and who had the responsibility of teaching new members party procedures and the law of the party, would have a more detailed understanding of the structure and history of the party. The Tribunal notes the applicant was given time after the hearing to provide any further evidence in support of his application and subsequently provided a facsimile stating he was unable to get a copy of his membership card for the CPI(M) from India since he was not in contact with anyone for a while. The Tribunal has considered the hand written letters from [two office bearers] confirming the applicant’s membership of the party. Given the credibility concerns noted above, and the applicant’s limited knowledge of the CPI(M), the Tribunal is not satisfied the applicant has told the truth about being a member of the CPI(M) and the Tribunal gives little weight to these letters. 

19. As noted above the Tribunal finds the applicant is not a witness of truth and it is not satisfied the applicant has told the truth about critical aspects of his claims. The Tribunal is not satisfied the applicant was ever a member of the CPI(M) or that he undertook any activities on behalf of that party. The Tribunal does not accept the applicant was tortured by the police and ruling party a number of times or that he was attacked once by three of four DHRM guys, or participated in processions and threatened approximately 50 times over a period of seven or eight years. While the Tribunal accepts that a Mr Siva Prasad was murdered in September 2009 and that members of the DHRM was arrested in relation to that murder, and the Tribunal accepts that there was a hand chopping incident involving Professor Joseph in Kerala committed by people connected to the Popular Front of India occurred in 2010[1], the Tribunal does not accept the applicant was a witness or involved or participated in any protests or political activity related to these incidents.  The Tribunal does not accept the applicant was involved in activities that led to the arrest of people involved in the murder or the hand chopping incident and the Tribunal does not accept the applicant was tortured or severally injured by people connected to the DHRM. The Tribunal does not accept the applicant was forced to move out of his state or went into hiding in India. The Tribunal does not accept the applicant changed his name in order to hide from the DHRM or anyone else in India. The Tribunal does not accept that the applicant was or is of any adverse interest to anyone connected with the DHRM.

    [1] See  The Hindu, 5 February 2010, ‘DHRM chief held’ which refers to the arrest of the chairman of the DHRM and the murder of Siva Prasad in September 2009; 

20. The Tribunal does not accept the applicant left the CPI(M) in 2009 (as the Tribunal does not accept he was ever a member of the CPI(M)) or that people connected with that party were or are afraid the applicant might leak secret party information about the party and its affairs to anyone, or that the applicant may join the opposition and share those secrets . The Tribunal does not accept that the applicant was or is of any adverse interest to anyone connected with the CPI(M) or the Popular Front of India.

21. The Tribunal does not accept the applicant ran away and hid in his relatives and friends houses or that he wrote letters to [government officials] prior to leaving India. The Tribunal does not accept the applicant was of adverse interest to anyone at the time he left India.

22. While the Tribunal accepts the applicant is a Christian and may have been a member of the KCYM in his youth, the applicant has not made any claims he fears harm due to his religion.  The Tribunal notes the applicant told the Tribunal he has not been involved in politics since he arrived in Australia, and the Tribunal does not accept the applicant will be involved in politics if he returned to India.

23. The Tribunal has also considered the applicant’s concerns in relation to eating beef in India. The Tribunal accepts the applicant eats beef and would do so if he returned to India. While the Tribunal has considered the newspaper article provided to the Tribunal by the applicant after the hearing which indicates that the state of Maharashtra and several other states have banned the slaughter of cows and that recent changes to the laws in Maharashtra now prohibit sale and possession of beef, the Tribunal also notes the applicant comes from the state of Kerala where, according to general source country information, there is no such ban. The Tribunal notes there are a number of states in India with no restrictions on the slaughter and consumption of beef[2].  While the Tribunal accepts there has been some recent media reports about violence towards Muslims eating beef in the north of India the Tribunal does not accept there is a real risk the applicant will be killed or harmed for possessing or eating beef if the applicant returned to India.

    [2]

    Conclusion

24. The Tribunal is not satisfied there is a real risk the applicant will be killed or suffer significant harm, or harm of any kind, for any of the reasons he has claimed, if he was returned to India.  

1. Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal is not satisfied there is a real risk the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subject to torture, or cruel or inhuman treatment or punishment; or subject to degrading treatment or punishment, if he is returned to India.

2. As the Tribunal does not accept there is a real risk the applicant will suffer significant harm if he was returned to India, it is unnecessary for the Tribunal to have further regard to the Guidelines and DFAT country information assessments referred to in the Ministerial Direction No.56, made under s.499 of the Act.

3. The Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk he will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa) for a protection visa.

4. 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

5. The Tribunal affirms the decision not to grant the applicant a Protection visas.

Chris Thwaites
Member  25 February 2016

ATTACHMENT: RELEVANT LAW

1. 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

2. 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).

3. 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.

4. 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.

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

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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

12. 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’).

13. ‘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.

14. 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

15. 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.