1509847 (Refugee)

[2015] AATA 3571

1509847 (Refugee) [2015] AATA 3571 (29 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1509847

COUNTRY OF REFERENCE:                  India

MEMBER:Amanda Paxton

DATE:29 October 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 29 October 2015 at 11:06am

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of India, applied for the visas [in] June 2014 and the delegate refused to grant the visas [in] July 2015.

3. The applicants appeared before the Tribunal on 13 October 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

   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. 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

17. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken into 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.

    Member of the same family unit

18. Subsections 36(2)(b) and (c) provide as an alternative criterion that applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouses.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The Tribunal has before it material including:

    ·     The Department’s file relating to the applicant;

    ·     Application for protection visa which included a written statement from the first named applicant;

    ·     Copy of the applicants’ passports;

    ·     A second statement from the first named applicant, received 29 June 2015;

    ·     Internet documents about drug trade in Punjab;

    ·     Statements from family friend [dated in] June 2015;

    ·     Accompanying statement from the first named applicant of June 2015;

    ·     Statement dated [in] June 2015 from the second named applicant’s mother;

    ·     Statement from Council Head of [Village 1, dated in] June 2015.

20. Both the first named applicant, and the second named applicant, his spouse, attended the hearing and had the opportunity to put forward claims.

21. The applicants’ claims can be summarised as follows. The first named applicant comes from [Village 1] in the Punjab. When he returned to [Village 1] from Australia for a visit in 2012, he was concerned to see a level of drug use in his community that was not previously there. His friends identified a man who was from his village, [Mr A], as the person who sold drugs to the boys. The first named applicant witnessed [Mr A] selling drugs. The first named applicant tried to lodge a complaint, a First Incident Report (FIR), against [Mr A] at the Police Station in [a neighbouring town]. The Station House Officer (SHO) at the Police Station did not accept his complaint. He slapped the first named applicant twice and intimidated him, saying it was wrong that he was making the complaint. The police contacted [Mr A], who came to the police station with a few friends. [Mr A] told the first named applicant to withdraw the complaint. [Mr A] was well treated by police who were colluding with him. [Mr A] then went to his house and threatened his father and him that he would harm the first named applicant if he did not withdraw the complaint. The first named applicant refused to do this. [Mr A] is a part of the drug mafia and closely connected to Ministers. The first named applicant fears that if he returns to India [Mr A] will harm him because he tried to lodge an FIR against him. The police will not protect him because [Mr A] makes them regular payments.    

22. The first named applicant grew up in the small village of [Village 1] in the Jalandhar district of Punjab, completed study in nearby [town], married in 2008, and came to Australia as a dependent on his spouse’s student visa in 2009. In 2009, the second named applicant had a child, and in 2010 the applicants returned to India for a month. When they returned to Australia, they left their child in India, in the care of the first named applicant’s sister who lives in a village in neighbouring [district].

23. On his return to [Village 1] for a month long visit to see his child and for his brother’s wedding in 2012, the first named applicant noticed that many of the boys with him were moving into drugs, including a new “white” drug, and also getting into debt through their drug addiction. He spoke with his friends who said there was a huge circle of people who were involved in drugs and that the main person selling drugs in the village was [Mr A].

24. The first named applicant saw [Mr A] come to a [sports] tournament in the area in a car with a few other boys. He saw drugs being handed over to boys there. Because the first named applicant was visiting from overseas, people thought he had money and asked him for money. The first named applicant thought it was wrong that the drug selling went on and that this was such a problem in his village that it could affect his house and child too.

25. When the first named applicant asked his father why no-one reported [Mr A], his father told him not to worry himself about the drugs. He also said that it was useless to report the man because of his connections. Someone had tried to report him but was told to be quiet and he then went to [another country].

26. [In] February 2012, the first named applicant went alone to the Police Station in [a neighbouring town], about 25 minutes away and reported [Mr A] to a member of staff there, an accountant or clerk, who took down the first named applicant’s complaint as an FIR. When a policeman came into the room, the clerk explained what the first named applicant was doing, and the policeman got the Station House Officer (SHO). When the SHO read the complaint, he said it was wrong that the first named applicant should be doing this. The SHO stated that [Mr A] was a ‘special’ person, involved with Ministers and others and that once an FIR is written up it can’t be torn up. The first named applicant stated that a special person is one who is bribing police on a weekly basis.

27. The SHO was very rude to the first named applicant asking him why he was getting involved since he comes from overseas. He went to another room and when he returned, he said that he had put charges against the first named applicant because he had maligned a respected person. He gave the first named applicant nothing to show that charges had been laid.

28. The SHO said that the first named applicant had no proof of his allegation and he slapped the first named applicant twice. The SHO said that if the first named applicant didn’t settle down then they had ways to improve him. He showed him a motor with a belt, a machine to hit people with. When questioned further about this machine, the first named applicant said it was known that the police in Punjab have a bad record of using this machine.

29. The police asked the first named applicant to call his father who also came to the Police Station. They spoke rudely to his father, telling him that his son should not be doing what he was doing. His father told the SHO not to worry, and that he would tell his son not to do anything when they went home.

30. The police had the details of the other party, [Mr A], and they called him and he arrived with 3 or 4 other people. They spoke politely to [Mr A] and his group.

31. As they all sat together in the hall, [Mr A] threatened his father to convince his father to get the first named applicant to withdraw the complaint, saying that the first named applicant  is your only son and his father won’t be able to find him. The SHO and police were also there but they said nothing because they were helping the other party.  

32. When the first named applicant and his father went home from the Police Station, [Mr A] also went to their home and sat down with them. [Mr A] told the first named applicant to withdraw his report and asked for an agreement together. The first named applicant refused.

33. After that time, [Mr A]’s people attacked the first named applicant once or twice. Clarifying this statement, the first named applicant said that this occurred one time. He was going around the village with his friends when people with weapons in their hands and a stick tried to stop him. The first named applicant got to know they were waiting for him because at an earlier time, people who had tried to raise voice against the drug seller had their limbs broken.

34. At the hearing, the first named applicant stated that since his return to Australia, [Mr A] has spoken with his father, telling him to make his son take the accusation back.  The first named applicant did not remember when this occurred or how many times. When asked for more information, the first named applicant stated [Mr A] had spoken to his father twice. He explained that his family lived outside the village on a farm, and if they have work in the village they come to village by bus. He thinks the contact happened when his father and the other party may have run into each other at the bus stop.

35. The first named applicant asked his father-in-law to enquire about the paperwork associated with his complaint with the police. Shortly after this, his father-in-law died in a road accident. The first named applicant stated that they, [Mr A] and the drug mafia, involved his father-in-law in a road accident and were responsible for his death. The applicants know this because of the timing of the accident soon after his enquiry and because the accident occurred even though it was not a busy road. The second named applicant stated that they have nothing to connect her father’s death with the drug mafia but the fear has become imbedded in their hearts.

36. [Mr A] will not spare the first named applicant even if he retracts his allegation, because it is matter of pride. He would find the first named applicant if he moved elsewhere through his network of people like Ministers and others in his circle. This may not occur today but maybe in years to come. The applicants would always have fear and could not speak with their family for fear of being found by [Mr A].

37. The police will not protect them from [Mr A] because he is a ‘special’ person.

38. The applicants could not survive elsewhere in India because there is insufficient employment and they would find it hard to find employment. It would be difficult to get work in other states because employers would prefer to give people from their own state jobs. Apart from speaking English, the second named applicant is not qualified to get a job.

39. The environment for Sikhs in other states is hostile. They are influenced by the Shiv Senna party who want to convert everyone to Hinduism and attack people and don’t want Punjabis to come into their areas.

    Assessment of claims

40. The issue in this case is whether the applicants face a real chance of serious harm or a real risk of significant harm if they return to India now or in the foreseeable future.

    Credibility

41. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

42. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

1. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

2. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

3. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see 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.)

4. The Tribunal has also considered the published guidelines of the Refugee Review Tribunal in relation to credibility.

   2.4 Findings made by the tribunal on credibility should be based on relevant and material facts. What is capable of being believed is not to be determined according to the member's subjective belief or gut feeling about whether an applicant is telling the truth or not. A member should focus on what is objectively or reasonably believable in the circumstances.

   2.5 The tribunal should make clear and unambiguous findings as to the evidence it finds credible or not credible and provide reasons for such findings.

   2.6 In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant's account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant's account of past events is true. If, on the other hand, the tribunal is able to make confident findings as to particular events, it is not obliged to consider the possibility that its findings of fact may not be correct. The rejection of some of the evidence on account of a lack of credibility may not lead to a rejection of an applicant's claim for a protection visa. For example, when assessing an applicant's claims against the Refugees Convention, if an applicant is disbelieved as to his or her claims, the tribunal must still consider whether, on any other basis asserted, a well-founded fear of persecution exists. However, the tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.

5. At the hearing, the claims presented by the applicants changed in significant aspects over time from those made in his written statement and Departmental interview. Significant new claims were introduced at the hearing and instances of internal consistency occurred. The Tribunal found some claims implausible. On the basis of all available evidence, the Tribunal was not satisfied as to the applicants’ general credibility.

6. On the basis of evidence provided by the applicants and supported by information on the Departmental file, the Tribunal accepts that the first named applicant comes from [Village 1] in the Punjab, and that he completed study in [town], married in 2008, and arrived in Australia in 2009. The Tribunal accepts that the applicants had a child in 2009 and that they returned to India with the child in 2010. The Tribunal accepts that the applicants left the child with his sister in [a] district, retuning again in 2012 for a holiday to visit their [child] and attend the first named applicant’s brother’s wedding.

7. On the same basis, and on the basis of independent county information and internet information provided by the first named applicant, the Tribunal accepts that drug use is increasingly common in the Punjab and that when the first named applicant returned for a month long visit for his brother’s wedding in 2012, he became aware of drug use in his community which was not previously evident.

8. In making findings of fact in this case, the Tribunal assessed the credibility of the applicants. In assessing whether the applicants were credible, it found significant aspects of their claims implausible. For instance, at the hearing, the first named applicant stated that he took action against [Mr A] because he was concerned about the drug problem and that it might affect his house and child. While noting that the applicants’ child does not live in this house, the Tribunal considered and accepted the applicant’s statement that he was concerned about evidence of the local drug problem. The Tribunal also considered the first named applicant’s statement at the hearing that he has had no previous involvement with community activity or politics, except for sport, and no history of taking any community action at any time. On the evidence, the Tribunal does not find it reasonably believable that he, who had no history of activism of any kind, should take action against someone in the village associated with drugs in his area while he was on a short term holiday. In addition, on their own evidence, the applicants were under very considerable stress at the time because of migration processes underway in Australia. At the hearing the applicants were visibly very agitated when describing that in the middle of their visit to [Village 1] in 2012, the Department sent the applicants an email advising that their file had been opened and fraud had been identified. In discussing this issue, the second named applicant said it was a very stressful time. The Tribunal considers that it is not plausible that the applicants would decide to compound their considerable stress at the time by making a complaint to the police because they witnessed drug dealing.

9. In assessing the credibility of the applicants, the Tribunal has taken into account the supporting statements they have provided. The Tribunal considers the statement from a close family friend [lacks] credibility. It is very vague and evasive stating that the first named applicant is of “very good character and a brave boy”[1], but making no reference to the first named applicant witnessing drug use and dealing or [Mr A]’s involvement in this activity. This statement does not refer to the first named applicant’s attempt to make a report to the police against [Mr A], the first named applicant’s experience with the police, or of any threat from the claimed accused. The Tribunal would expect these incidents to have been mentioned in this statement, had they occurred. The Tribunal has serious concerns about the credibility of the first named applicant’s claims on this basis.

   [1] DIBP, f. 93

10. In considering the applicant’s credibility, the Tribunal has also taken into account the statement provided on behalf of the first named applicant from [the] Council Head of the village. In this statement the Council Head states that the first named applicant “has initiated the process of saving so many innocent lives from drug addiction.”[2] He also states that the drug network is widespread and that it is hard to deliver justice when the law official(s) are themselves involved in the drug network. The Tribunal considers that while this statement is broadly supportive of and consistent with the first named applicant’s claims, it does not provide a level of specificity that could be expected from the Head of Council in relation to the first named applicant’s claims. The statement makes no reference to any of the incidents claimed by the applicants in relation to witnessing and reporting drug activity to the police or subsequent experiences. The Tribunal considers that it is reasonable to expect that the village Head of Council would mention the first named applicant’s claims in relation [Mr A] and the police, had they occurred. The Tribunal has serious concerns about the credibility of the first named applicant’s claims on this basis.   

    [2] DIBP, f. 82

11. In assessing the credibility of the applicants, the Tribunal has considered that the first named applicant’s description of claimed events at the Police Station changed at the hearing. The first named applicant initially stated that there was no-one else in room at the time when the SHO slapped him. He later stated that there were three policemen in the room when the SHO hit him and the others were standing close by. The Tribunal considers that the first named applicant has not been reliable in his account about a matter which it could reasonably expect him to have certainty.

12. The Tribunal considered the first named applicant’s claim that the SHO intimidated him by laying charges against him. The first named applicant made changing claims in relation to this claim, stating first that the SHO had laid charges against him, but then retracting this claim, stating that the police verbally told him that they would press charges. He stated he did not know if they had or not and they have given him no documentation. The Tribunal considers it is reasonable to expect the first named applicant to be clear about this claim. The changing nature of the oral evidence supports the conclusion that the events did not occur as claimed.

13. The Tribunal has considered the first named applicant’s claims in relation to the other party, [Mr A], the man from the village who sells drugs to the boys and notes the first named applicant has made changes to his claims concerning [Mr A]. The Tribunal considers these are significant changes and that they raise serious concerns about the first named applicant as a credible witness.

    ·At the hearing, the first named applicant provided inconsistent accounts of his knowledge of [Mr A], initially stating that knew [Mr A] from the village but he had not met the man before. He later stated that he had met [Mr A] sometimes, e.g. when they were watching a sporting match.

    ·At the hearing, the first named applicant stated that when he and his father left the police station and went home, [Mr A] went to their home and sat down. This is a new claim. The first named applicant said that he had not raised it in his initial written statement because he wrote everything in short because he could provide detail later. He stated that he made this claim in his interview with the Departmental delegate. The Tribunal finds no record of this and does not accept the first named applicant’s statement in this regard. 

    ·At the hearing, the first named applicant claimed that after he went to the Police Station, the other party’s people attacked him with weapons. This is a new claim. When the Tribunal asked why he had omitted this event, he stated that he had not mentioned this at any other time because now he has the opportunity, whereas at the previous interview he was told he had to be brief. He stated he did not make this claim in his written statement because he had been told to complete it in a short way to reduce the paperwork. The Tribunal considers this is a significant omission and it would expect this claim to have been made at the first and subsequent opportunity. The Tribunal did not accept the first named applicant’s explanation as credible.

    ·The Tribunal provided many opportunities at the hearing to the first named applicant to reiterate the claim made at his interview with the delegate that [Mr A] had gone to his father’s house after the applicant had returned to Australia. In his interview with the delegate, the first named applicant stated that his father had phoned the first named applicant in [Mr A]’s presence and handed the phone to [Mr A], who then made death threats against him. The first named applicant explained this omission to the Tribunal saying that he did not mention this because he had mentioned it at the Departmental interview and did not realise he should speak about it again. At the commencement of the hearing, the Tribunal had explained nature of the hearing to the first named applicant and in respect to [Mr A]’s conduct the Tribunal was clear in seeking a full account of the first named applicant’s claims. On this basis, the Tribunal does not accept this explanation for this omission and the Tribunal does not accept the first named applicant’s claims in relation to [Mr A] are credible. The Tribunal further considers that these concerns do not support a finding that the applicants are credible witnesses.

    ·At the hearing, the first named applicant stated that [Mr A] had spoken with his father at the bus stop and told him to tell him tho withdraw his accusation. In addition to the Tribunal’s concern that this is a new claim, the first named applicant was vague about the frequency of these incidents. The Tribunal considers that these encounters, had they occurred would be significant to the first named applicant and his father. The Tribunal found that the first named applicant’s vagueness about this claim raised serious credibility concerns about the applicants’ claims.  

14. The Tribunal has considered the first named applicant’s claim that his father-in-law was involved in an accident and died because he went to the police station seeking documentation for the first named applicant. At the hearing, the Tribunal asked why the applicants believed this to be the case. The second named applicant stated that her father’s death occurred very soon after he made enquiries about her husband’s case. She stated that her father’s death could not have been an accident because it was not a busy road. The second named applicant stated that they have nothing to connect death of her father with the applicant’s claimed action against [Mr A], but the fear has become imbedded in their hearts. The first named applicant provided a statement from his mother-in-law which stated that her husband’s accident was “planned and cold blooded murder”. The Tribunal took this statement into account but noted that it provided no information about the manner of the death of her husband and the role of the drug mafia. On the basis of the vague and limited evidence provided, the Tribunal does not accept the claim that the first named applicant’s father-in-law’s death was connected with [Mr A]. The Tribunal further finds that the claim that the first named applicant’s father-in-law’s death was connected with [Mr A] was provided by the applicants to embellish their claims.

15. In considering the applicants’ general credibility, the Tribunal considered that they did not raise any claims to need protection from harm in India from the claimed occurrences in February 2012 until June 2014. As discussed with the applicants at the hearing, their migration history has involved the assistance of a number of lawyers at many stages since February 2012. At the hearing, they stated that after return from India in 2012, they consulted with other lawyers about what could be done in relation to fraudulent claims made in their temporary visa applications. They also stated that they had a lawyer assisting them when they lodged an appeal at the Migration Review Tribunal (MRT), and when the first named applicant lodged what proved to be an invalid Student visa. The applicants stated that after the MRT refusal, they consulted with a lawyer who advised them in relation to making a request for Ministerial Intervention. The applicants stated that they got to know about protection visas from their friends after they found they did not hold visas in 2014. As put to the applicants at the hearing, the Tribunal considers that it is reasonable to expect that a lawyer (or agent) would have provided advice about Protection visa applications through these consultations. On this basis, the Tribunal does not consider the applicants’ claim that they did not know about Protection visas is credible. The Tribunal further considers that if they had concerns about their need for protection, they would have put these forward at the earliest possible time. These considerations cause the Tribunal to have further doubt as to the credibility of the applicants’ claims to be in need of protection.

16. For all of the above reasons, the Tribunal, having considered all of the evidence of the applicants and third parties, is not satisfied that the applicants are credible witnesses. On this basis, the Tribunal does not accept the applicants’ claim that in 2012, when home on holiday, the first named applicant witnessed [Mr A] selling drugs at a local [sports] game. On the same basis, the Tribunal does not accept the claim that he went to the [Police] Station to lodge a complaint against [Mr A]; that the Station House Office slapped the him twice and intimidated him because it was wrong to make a complaint because [Mr A] was a ‘special person’. The Tribunal does not accept that [Mr A] went to the first named applicant’s father’s house after the police station and threatened him or that he has been threatened by [Mr A], or his people, at any other time.  Therefore, the Tribunal does not accept that [Mr A] will use mafia connections to harm the applicants now or in the foreseeable future.

17. The Tribunal considered the first named applicant’s statement at the hearing that people at the [sports] game knew he was visiting from overseas, thought he had money and asked him for money. The first named applicant did not expressly raise a claim to having a well-founded fear of persecution or real risk of significant harm now of in the reasonably foreseeable future on this basis. The Tribunal has considered the available material, including the context in which the first named applicant gave this evidence, and whether on this basis, he will be targeted on the Convention ground of particular social group because he is perceived as being a wealthy person. The Tribunal accepts that as a person from overseas he was perceived as having money and was approached by people who asked him for money at the [sports] game. The Tribunal notes that the first named applicant expressed no fears in relation to these approaches and the evidence before it does not suggest that these people present any harm to the applicants. On the evidence before it, the Tribunal finds that the applicants do not face a real chance of serious harm from people in the community on this basis.   

18. The Tribunal finds that the applicants do not have a real chance of serious harm from the local police, [Mr A] or anyone else in the reasonably foreseeable future. The Tribunal finds that the applicants do not have a well-founded fear of persecution for this reason.

19. On the basis that the Tribunal finds that the applicants do not have a real chance of serious harm from the local police, [Mr A] or anyone else, the Tribunal has not considered the applicants’ claims regarding difficulties in relocating to another part of India.

20. Based on its findings above, the Tribunal also finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, there is a real risk that they will suffer significant harm.

    CONCLUDING PARAGRAPHS

21. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

22. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Amanda Paxton
    Member