1608172 (Refugee)

[2019] AATA 5822

1608172 (Refugee) [2019] AATA 5822 (16 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1608172

COUNTRY OF REFERENCE:                   India

MEMBER:Christine Cody

DATE:16 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 16 May 2019 at 9:18am

CATCHWORDS

REFUGEE – protection visa – India – political opinion ­­– forced donations – death threats to family –inconsistent, changing and unlikely evidence – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5,36, 65, 438, 499
Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo & Anor (1997) 191 CLR 559

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

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 on 13 May 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The applicant, who claims to be a citizen of India, applied for the visa on 18 February 2015.

   Migration history[1]

   [1] Refer to application form.

2. The applicant entered Australia [in] January 2015 holding a Subclass 600 Visitor Visa, granted on 29 December 2014. The visa was valid till [April] 2015.[2]

   [2] The application form states it was valid until [mid] April 2015; this does not make a difference.

3. Prior to coming to Australia, the applicant visited [Country 1] [in early] April 2014 for a visit. The applicant went on a business trip to [Country 2] [in mid] March 2014.[3]

   [3] Refer to application form.

   The Department

4. The Departmental file contains documents including the applicant’s protection visa application forms, copy of the applicant’s passport, the applicant’s written statement and the delegate’s decision record.

5. According to the applicant’s written documents, his claims and background are as follows:

   ·     The applicant was born in [year of birth] in [town], Gujarat, India. The applicant speaks, reads and writes in Hindi, and reads and writes in English. His ethnicity is “Gujarati”.

   ·     The applicant completed his secondary school certificate in Delhi in [year deleted]. He was the owner of a [goods] store in Delhi, from March 2001 until when he left India. The applicant lists only one address, in Delhi.

   ·     The applicant married [in] October 2007. The applicant has a daughter (born [year deleted]) and a son (born [year deleted]).

   ·     He was initially a Congress Party supporter and voted for the party candidate. However he considered both the Congress Party and the opposition Bharatiya Janata Party (BJP) had abandoned their ideology and political corruption was rife. As a business owner he was forced to donate money on a regular basis to the BJP.

   ·     The applicant became a member of the Aam Aadmi Party (AAP) on its formation in 2013. The applicant was an active member of AAP; he assisted the AAP in campaigning for the 2013 and 2015 elections in India.

   ·     2013 was the AAP’s first electoral contest. The AAP emerged as the second-largest party in Delhi and formed minority government. The local BJP leader realised the applicant’s activities and warned him on many occasions but he was not hindered and he continued with his party political work.

   ·     In 2014 there was the Indian general election which the BJP won. It was thereafter expected to do very well in the Delhi election in 2015 because it was the first test of Modi’s government. The BJP played dirty party politics, including kidnapping and threatening.

   ·     BJP supporters discovered that the applicant was a major donor of the AAP, and threatened to kill his family members and kidnap the applicant’s children if he did not donate 10 million rupees to the BJP. The applicant had to leave India during the election campaign. He left India without giving them money.

   ·     He did not leave with his wife and children, to avoid suspicion.

   ·     The AAP won an unprecedented victory on 7 February 2015 in the Delhi election. The BJP became very aggressive to the AAP after the election.

   ·     The BJP went to look for the applicant the day before the election at his house. His family members moved into the in-laws’ house after he left India.

   ·     The applicant indicates that the BJP supporters attacked him several times after the 2013 election. The applicant also states that the BJP supporters ransacked the applicant’s business on two occasions.

   ·     The applicant alleges that the BJP engaged in kidnapping and threatening AAP party members and candidates in the run-up to the 2015 Delhi elections. Following the landslide AAP victory in 2015, the applicant states that the BJP supporters became very aggressive towards AAP members. At one point, BJP supporters came to the applicant’s house trying to find him.

   ·     The applicant fears that if he returns to India he will be killed. The applicant approached the police seeking protection but they refused given that the BJP is in power in the central government. He will not be protected because the authorities hesitate to take action against BJP thugs.

   ·     The applicant stated that he could not relocate within India because BJP supporters will find and kill him.

   ·     The applicant is currently unemployed in Australia.

6. The applicant’s wife and children came to Australia [in] February 2015, and were initially part of the applicant’s protection visa application. They withdrew from that application [in] July 2015. They have a separate application.[4]

   [4] Delegate’s decision record provided to the Tribunal by the applicant.

   The delegate’s invitation to interview and the decision record

7. The delegate said that the applicant did not attend an interview to discuss his claims and noted that the invitation had been returned to sender. The delegate noted that the applicant may have access to Nepal as he is an Indian citizen, but that there was no need to consider this as the delegate was not satisfied that the applicant satisfied the relevant criteria. For the purposes of this decision the delegate was prepared to accept that the applicant had paid donations to the AAP and that the BJP were aware of this and that some BJP members may have been angry that a source of donations had dried up. The applicant claimed to have delivered leaflets on behalf of the AAP. The delegate acknowledged that elections can cause tensions, but did not find any country information to support that death threats were carried out on AAP members.

8. The delegate referred to an Amnesty International report Blackout in Bastar which referred to the allegedly unlawful imprisonment and police torture of Ms Sori Sori, a politician of the AAP and longstanding community activist. Five cases have been charged against Ms Sori, and she suffered a chemical substance attack from unidentified persons. This, however, occurred in Chhattisgarh, India, and followed Ms Sori’s campaigning against a high-ranking police officer in a case involving extrajudicial killings. The persons who undertook the chemical attack referred to this, and this appeared to be separate to her AAP membership. The delegate was not satisfied that the applicant’s situation was similar to this.

9. The delegate did not find it plausible that the applicant was attacked for his party activities nor that the applicant could not attend upon police for assistance for “many” attempts on his life after the 2013 election, the death threats to his family and the ransacking of his business.

10. The delegate considered that India has a reasonably effective and impartial police and justice system, albeit with problems, and that the applicant would have been able to obtain state protection concerning threats of harm against himself and his family.

    Certificate

11. The Tribunal notes that there was a s.438(1) certificate placed on folios 130–132, 143 and 151 of the Departmental file by the Department. It is appropriate to address the validity of the s.438(1) certificate, which requires that the reason specified in the certificate for why disclosing matters contained in a document or information would be contrary to the public interest must be capable of forming “the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence”. The only reason stated in the certificate is that the folios “… contain information relating to an internal working document and business affairs”. That is neither a necessary nor a sufficient basis for public interest immunity. At best, it is only a reason that could form part of the basis for a claim, not the basis, and does not communicate to the Tribunal any reason which meets the description in s.438(1). Since the certificate is not valid it does not trigger the operation of s.438(3)(a) and s.438(3)(b) in relation to how the documents or information can be dealt with and the Tribunal has proceeded to treat the documents in the usual way as if there was no certificate.

12. The folios are internal procedural documents which are not relevant to the applicant’s claims, other than perhaps an internal email indicating that the applicant had moved and this may have been why he did not attend the interview. The Tribunal discussed the certificate with the applicant, noting that it appeared not to be valid, as the reason given for the certificate related to internal working documents and business affairs. The Tribunal said it had had regard to the documents covered by the certificate and they did not appear to be relevant to his claims, but instead to be just internal Departmental documents. It noted that it appeared that the Department may have been aware that he had changed addresses and this was why he did not attend the interview (the applicant told the Tribunal that he did not receive the interview invitation). The Tribunal said that this did not impact upon its consideration of his claims. The applicant did not have any questions or comments in relation to the certificate. The Tribunal does not consider that the documents the subject of the certificate have any bearing on the applicant’s claims.

    The Tribunal

13. The applicant provided to the Tribunal a copy of the delegate’s decision record as well as his application for review form.

14. The applicant appeared before the Tribunal on 30 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

15. The Tribunal asked what he feared if he returned to India and he said “they” will kill him; the BJP; the leaders are very strong. The Tribunal asked him to be specific as to who will kill him; was it a particular person, or the whole party. He said it was the whole party, there are many leaders. He confirmed that it is the whole party, throughout the whole of India, who want to kill him.

16. The applicant said that there is no other reason why he does not want to go back.

17. The applicant brought some papers with him to the hearing which he discussed. They related mostly to his wife and children. He said that he and his wife separated in 2015 and they were divorced [in] November 2016 (divorce papers cited). The Tribunal noted that there was a reference in the documents he provided to the wife not wanting her address to be disclosed; instead she was to be contacted through the Red Cross and it asked why that was. He said he did not know if she made allegations against him; he asked for his police records to be checked and there was no AVO against him.

18. He had received a call from his ex-wife to say that she was pregnant to her partner but the man had left her. She was staying at a friend’s house with the two children and asked for his assistance. He said FACS had been involved because it was alleged that the person had not treated the children well and so he reported this to the police station (a letter from FACS was provided showing that the child protection files were to be closed). It transpired that he would have the full custody of the children. His ex-wife transferred custody to him, signing a statutory declaration to that effect [in] March 2018, including acknowledging that the children would be sent back to India to live with his mother who is based in [Delhi], on a permanent basis.

19. The children went back to India in about March/April 2018. They travelled alone to India. They are going well and she is taking care of them. Both of the children go to school.

20. His father passed away in 1997. They have always rented except his mother owned a property where they lived in [Delhi] for 10 years (from 2007 to 2017). She sold it because he required financial assistance over here. Since that time she has been living in a rented apartment in [Delhi] (where she lives with the children).

21. The applicant started working when he got work rights when his visa application was received. He is a [driver]. Since he got his licence in 2016, he has worked as a [driver]. Before that he was working [a few manual jobs]. He pays $500 per one child per three months for private school fees in India. They could go to a government (non-fee paying) school but he is paying private school fees so the kids get a good education. He said he doesn’t want the children to live there for a long period as there is a danger for them. When asked what was the danger he said that they could be hurt because of his situation with the BJP. When asked however if there is a date or concrete plan for the children he said no.

22. His ex-wife also comes from Delhi and her parents live in Delhi. They are about a half hour distance from where he used to live.

23. The applicant told the Tribunal that the first thing he did for the AAP was that he started to donate in 2014 (this however was inconsistent with his claim that in 2013 he started campaigning for them). He said that the BJP found out he was donating to the AAP and two months later they came to his home and told him to give the donations to the BJP not AAP. They hurt him by hitting him with sticks. They had a gun in hand and they said if he doesn’t listen to them then next time they will shoot him.

24. The Tribunal asked when was the deadline for him to donate to the BJP and he said there was no date. The Tribunal put to him that if they wanted money, it did not seem to make sense that there was no deadline. In response he said at that time he went to [Punjab]. The Tribunal noted this was not an answer to the question. Two months previously they were angry he had not donated to them; it again suggested that it makes no sense that they didn’t impose a deadline. He said the message was that he had better pay it soon. They asked him for 10 million and they know it doesn’t just come like this. They told him that if he didn’t pay they will kill the whole family.

25. The Tribunal asked what he did and he said he had a visa for Australia and he came here. When asked if that was the only step he took he said that he went to Punjab and he stayed two months and then [to two other locations]. He would sometimes visit home to see his mother. He went back 2–3 times. The Tribunal asked why he didn’t give these changes of address in his application form, noting that he only claimed to have lived in one location the whole time, even though the application form specifically asked for details of temporary accommodation. In response he said he didn’t know the addresses where he stayed; the Tribunal asked whether he knew the locations and he said yes. He then agreed that he didn’t write any of these locations in his application form.

26. The Tribunal asked whether he had said in his statement that he had gone into hiding and he said no. The Tribunal said it appears that he was now saying that he had lived in hiding in different states; it asked why he didn’t say that in his statement. He responded that he didn’t have the knowledge of what should be written.

27. The Tribunal asked whether the BJP would still want to harm him now and he said certainly. The reason they want to harm him now is that he didn’t want to pay them money and now they have even more power.

28. Last time he was harmed by them was when he went into hiding in November 2014. He returned home and they tried to shoot him with a gun. He escaped. He saved his life. He went to a friend’s house; his friend said go away from India. Then he came here.

29. There were no other incidents before the November 2014 incident that he has not told the Tribunal about.

30. Further relevant evidence is set out below.

    CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONS

31. The issue in this case is whether or not the applicant meets the definition of refugee or complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of reference

32. The applicant produced his passport to the Tribunal. The Tribunal finds that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is India.

    Credibility

33. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

34. Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.

35. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70).

36. The Tribunal had a number of concerns about the applicant’s inconsistent, changing and unlikely evidence. The Tribunal’s concerns are set out below.

37. Firstly, the Tribunal noted that he had been shot at with a gun (aiming to kill him) in November 2014, and so he arranged to obtain a visitor visa to go to Australia. He had, however, left his wife and children behind. He responded by saying that he placed them at a safe place and then they came to Australia. The Tribunal noted that according to his statement, he had left them at his in-laws’ house, which didn’t seem safe, given that the whole of the BJP party leaders are looking for him and they want to kill his family members/kidnap his children. He responded that they were in danger but he had no other choice. The Tribunal put to him that he had just given evidence that from April/May 2014 he went into hiding with his wife and children, going to stay in various locations in other states. The Tribunal put to him that he did have another choice, he could have left his wife and children elsewhere, instead of bringing them back to [Delhi] to his in-laws’ home where it would appear they would be easily found.

1. The applicant then changed his evidence and said that sometimes his wife and children were at places other than his in-laws’ house, such as at relatives’ houses. The Tribunal said it was concerned that he would escape the country, yet leave behind his wife and children, who have already been the subject of significant threats, in a location close to where he has already experienced the danger. He then said that the safest place for them was with the in-laws and his wife would not agree to anything else. The Tribunal does not find the applicant’s responses to be persuasive and it considers that if the wife and children were at risk of being killed/kidnapped to the extent that he had taken them to different states when he was still in India, he would not have left them at his in-laws’ house, about half an hour away from his home and thus so close to danger.

2. Secondly, the Tribunal was concerned that the applicant was prepared to send his children back to [Delhi], an area where he had lived and been threatened with death and shot at, given that he told the Tribunal that the threat from the whole of the BJP remained current. The Tribunal put to the applicant that it would be easy for them to find his children given that they are living with his mother. He agreed that it is easy to find the children. He then said that it is him they are after. The Tribunal reminded him that the BJP had wanted to harm his family members and kill them. In response he said that yes, they wanted to do this, but so far nothing had happened to them.

3. He then said that he was in Australia and it was difficult to keep the children. The Tribunal put to him that he could have sought assistance to look after the children instead of sending them back to a place where they can be killed. He said he was ready to keep them here but he did not know what to do. He asked for help from FACS. He didn’t have a choice, either to look after the children or not work. He has told the truth. The Tribunal does not accept this explanation, for although it accepts that single parents who work and care for children can face difficulties and pressure, it is not prepared to accept that the applicant, a resourceful person who managed to come to Australia and survive in a foreign country, and who had gainful employment, had no choice other than to send his children back to a place where they faced death. The Tribunal considers that if the applicant and his family members genuinely faced and continued to face the level of threats and harm and adverse attention that he claimed, he would not have sent the children back to India, and that his willingness to send his children back from a place where they are safe and have both of their (albeit divorced) parents, to India, undermines his claims that they face being killed there.

4. Further, as put to the applicant, he claimed that in April/May 2014 it was demanded with threats by the BJP that he pay them 10 million rupees and he has not done so. For all the years that he has been in Australia, his mother has lived in the same area (including in a house she owned for part of that time), and she could have been kidnapped or harmed or threatened, in order to extort that money out of him. In response he said they can’t get any benefit from his mother. The Tribunal put to him that if they wanted to extract 10 million rupees from him they could kidnap her for ransom; it is his evidence that they undertake such actions. He responded by saying that when he came here the matter is over but when he goes there it will start again. The Tribunal put to him that according to his claims, the threats are not just addressed to him, they have already indicated that they will harm his family members in order to get what they want. In response he said whatever happened, he wrote it down. The Tribunal does not accept his explanations, given his claim as to the brutality and willingness of the whole of the BJP to harm/ punish the applicant. The Tribunal considers that his mother’s ability to continue to reside in [Delhi] and not face any harm or threats undermines his claims that the BJP are brutal killers who will take serious action to get what they want.

5. Thirdly, the Tribunal asked the applicant who the current leaders of the BJP are in his local area ([in Delhi]), and he said he didn’t know. The Tribunal asked why, and he said because he is not in the party, he doesn’t have any consultation with the party, he is away from them, this all happened 4–5 years ago, there would be different leaders now. The Tribunal put to the applicant that the local BJP had threatened to harm his family members, and although he was in Australia, his family are in [Delhi], including his two children, whom he sent back. The Tribunal put to the applicant that it was difficult to understand why he would not have had an interest in finding out who the leaders were, given the safety of his family members could be at risk, and his claims that the BJP leaders can be brutal killers. The Tribunal considered the applicant’s indifference to knowing about the local BJP leaders to be inconsistent with his claims. It was further concerned because he then changed his evidence to say he did make inquiries and he was aware that the BJP leaders there were different to before.

6. Fourthly, the applicant’s application form declared that he travelled to [Country 1] for a 3-day “visit” in April 2014, and to [Country 2] for business in March 2014. The Tribunal was concerned that the applicant’s actions in leaving and returning to India appeared inconsistent with his claimed circumstances. It put to the applicant that he had travelled to and from [Country 2] and [Country 1], after he was a target of the BJP. The Tribunal put to the applicant that his travel did not appear consistent with his claims that he was a target and that he was in hiding. When asked for his response, the applicant said that he didn’t want to comment. The Tribunal considers that this inability to explain his travel, given his claimed serious circumstances, undermines his claims and credibility.

7. The Tribunal was further concerned with his response when it asked him whether he had sought to travel anywhere else and he said no. The Tribunal noted that his passport contained a police clearance certificate dated September 2014 to allow him to travel to [Country 3]. He then agreed, and said that he did not travel there. The Tribunal noted that his evidence was inconsistent with this. He said that he didn’t go so he didn’t think about it. It was a short business trip he was going to make. By this time, the applicant claims that he had been attacked twice and 10 million rupees in political donation had been demanded of him, with threats of harm and kidnap if he did not pay. The Tribunal would think that he would have recalled if he had attempted to travel to [Country 3] while experiencing such fear and being in hiding. The Tribunal considers that his travel (on each occasion returning to India) and his proposed travel to [Country 3] (again proposing to return to India) undermine his claimed circumstances.

8. Finally, the Tribunal was concerned that the applicant’s evidence was inconsistent in certain details, such as how often the BJP attacked him with the aim of killing him, as well as the details of his involvement with the AAP.

9. In his statement he had claimed that the BJP had “attacked to kill me many times after the 2013 assembly election” which was different to his evidence to the Tribunal. In response, he said that “many times” is the same as “three times”. However, his evidence to the Tribunal was that it was only on the third (last) occasion that they attacked to kill him (in November 2014); on the other two occasions two people hit him with their hands and let him go, telling him to keep on donating; the second time he was hit with sticks and let go and told to come up with 10 million rupees. The Tribunal considers that there is a difference between being attacked with the intention of killing him once and many times.

10. The Tribunal noted that in his statement he said that he campaigned with the AAP during the 2013 Delhi election but in his evidence he said that he was first involved with the AAP in 2014. He agreed with his involvement commencing in 2014. The Tribunal said that if this was the case, it does not understand why the BJP would want to harm him or threaten him in 2013 (as set out in his statement). He said that he was with the BJP at that time, “campaigning or something” in 2013, but in 2014 he started with the AAP. The Tribunal does not consider that the applicant has explained why BJP wanted to harm him in 2013 given that he claims he was with them in 2013 (and not with the AAP). The Tribunal considers that this undermines his credibility.

11. On the basis of the above the Tribunal did not consider that the applicant was a witness of truth.

    Other matters

12. The Tribunal had a concern as to differences in evidence in relation to the parties to whom the applicant said that he had political allegiances. Although his statement indicated that he had supported the Congress Party and had been forced to donate to the (opposition) BJP, his evidence to the Tribunal was different: he said he was a Congress Party supporter, then he supported the opposing party, BJP, for 3–4 years (his support was through campaigning and giving them donations because he believed in them), prior to switching to the AAP. The Tribunal put to him that his statement was different. He responded by saying that he told the person in Hindi what to say in the statement and the person wrote in English and maybe there are mistakes. The Tribunal noted that he had earlier told the Tribunal that his written materials were true and correct; he did not tell the Tribunal that he didn’t know if it was true and correct or that he had given it in Hindi. The applicant then said he didn’t check what was written on his behalf. The Tribunal put to the applicant that this is an important document, seeking protection, he is a business owner, and it would seem doubtful that he would leave his claims to chance and not even check them. In response, the applicant said that after coming to Australia he is so upset he lost his wife and his children. The Tribunal put to the applicant however that he did not lose his wife and children before doing his statement and application form[5]; the applicant then agreed and said that at that time she was with him. The Tribunal also noted that in his application form he stated that he could read and write in English. He then said he cannot understand English. The Tribunal noted however that earlier in the hearing he had been consulting documents written in the English language about him and his wife and telling the Tribunal what was in those documents, which indicates that he does read and write English. He then changed his evidence and said that he does understand and he can read but he doesn’t understand it very well.[6] The Tribunal has considered the applicant’s changing evidence, and although it considers this to be unlikely, it has decided to give the applicant the benefit of the doubt and not place any weight on the difference in evidence concerning his political allegiances. It does not however consider that in accepting consistency in his claimed political allegiance, that this overcomes the difficulties with his evidence. 

    [5] As set out in the delegate’s decision record the applicant’s wife and children were initially dependents upon his application, and they withdrew on 31 July 2015; further, the divorce document he provided showed that he and his wife separated on 5 May 2015, almost three months after he lodged his protection visa application (with statement).

    [6] The applicant did not offer this as an explanation for any other differences in evidence discussed with him at hearing.

13. Towards the end of the hearing, after the Tribunal had put its concerns to the applicant, he said he would like a copy of his statement that he had provided to the Department. He did not explain why he did not have a copy other than he didn’t have access to a certain email. The Tribunal said it would read it out to him (using the interpreter) and he should take notes while the Tribunal did so if there were any problems he wanted to tell the Tribunal about . The Tribunal read for the most part verbatim; some was a summary. At the end the applicant said that it was the same as what he had already told the Tribunal; the Tribunal disagreed, noting that there were inconsistencies between his statement and his evidence, which it had already put to the applicant. The Tribunal asked if he would like to provide further comment and he said no.

14. The Tribunal notes that the applicant did not offer as an explanation for any other differences in evidence discussed with him at hearing that his statement was written down incorrectly without his knowledge; and other than in relation to the claim in paragraph 49 the Tribunal is not satisfied that the applicant has claimed that his statement was incorrect nor is it prepared to accept that it was incorrectly transcribed.

15. The Tribunal has considered that the applicant could have been nervous in providing his evidence; it does not accept however that this can explain the difficulties with his evidence.

    Credibility summary

16. Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth when claiming to hold fears upon which he has based his protection claims.

    Findings on the applicant’s claims

17. On the basis of the adverse credibility finding, the Tribunal does not accept the applicant’s claims relating to political matters in India, including any actual or imputed political involvement or support, nor that he was targeted or subjected to threats or adverse attention, nor shot at or otherwise harmed. It does not accept that threats were made to kidnap or harm his family members. It does not accept that he made donations or was forced to make donations as claimed. It does not accept that he has suffered harm as claimed, nor that he sought state protection which was refused for political reasons. It also does not accept that he was in hiding or moved to avoid harm.

18. The Tribunal also does not accept that he had or has any interest in expressing any political opinion. It does not accept that the applicant considered that he needed to escape or leave India for reason of any concerns in India nor any claims that flow from this. The Tribunal accepts that his wife has given custody of the children to him and that his mother is caring for them, and that he is providing financial support. The applicant claims that he was a business owner, and to have worked in both India and Australia; it considers that he is resourceful and will continue to work to support his family and himself in India. The Tribunal is not satisfied that the applicant will not be able to contribute to the reasonable expenses for his family such that he faces a real chance of serious harm or a real risk of significant harm for employment, economic and financial reasons.

19. The Tribunal said to the applicant at hearing that it had concerns that his claims relevant to being targeted and political involvement as well as people targeting his family may not be true. The Tribunal noted that it was required to have regard to the DFAT report but if it found that his claims about targeting and political involvement were not true it would seem that when considering the country conditions, he does not otherwise face a real chance of serious harm or a real risk of significant harm. It asked if he wanted to say anything and he said no. The Tribunal has found that it does not accept the applicant’s claims of actual political involvement; it does not accept that there is a real chance or a real risk that he would be imputed with any political involvement or support which would lead to a real chance of serious harm or a real risk of significant harm. It does not accept that there is credible evidence that this applicant in his particular circumstances (who the Tribunal has found was never forced to pay political donations) would face a real chance of this happening in the future.

20. The Tribunal is not satisfied that the applicant came to Australia to escape any harm or adverse interest in India nor does it accept that there is a real chance or real risk of this upon return. The Tribunal is not satisfied that the applicant faces a real chance or real risk of requiring access to state protection for any reason.

21. The Tribunal has considered the applicant’s claims individually and on a cumulative basis, having regard to the findings that the applicant is not a credible witness concerning past events or future harm feared, as well as the relevant country information, other than those claims accepted above. The Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of persecution as a refugee for any of the reasons put forward by him or on his behalf.

    Complementary protection

22. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) (see Annexure A, which provides a summary of the relevant terms).

23. The Tribunal does not accept that the applicant has experienced any adverse interest as claimed or that he has the political profile or opinion as claimed. It finds that he made up his protection claims. The Tribunal does not accept that there is any reason for him to face a real risk of adverse attention or harm amounting to significant harm (as discussed in the Annexure). It does not accept that he faces a real risk of being imputed with a political opinion, it does not accept that he has previously been forced to pay donations nor does it accept that upon his return to similar circumstances, he faces a real risk of being forced to pay political donations. It considers that he will continue to live with his mother and children, find work, and pay for the family’s reasonable expenses. Having considered his claims and circumstances on a cumulative basis it is not satisfied that he faces a real risk of significant harm for any reason.

    Conclusion

24. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

25. 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).

26. 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 criteria in s.36(2).

    DECISION

27. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Christine Cody
    Member

    
    

    ANNEXURE A – CRITERIA FOR A PROTECTION VISA

28. 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, he or she 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.

29. 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 because the person is a refugee.

30. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

1. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted below.

2. 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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted below.

   Mandatory considerations

3. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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.

   Extract from Migration Act 1958

   5 (1) Interpretation
   …
   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)that is not inconsistent with Article 7 of the Covenant; or

   (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)that is not inconsistent with Article 7 of the Covenant; or

   (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   receiving country, in relation to a non-citizen, means:

   (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)for the purpose of intimidating or coercing the person or a third person; or

   (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   5J Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)    the real chance of persecution relates to all areas of a receiving country.

   Note:  For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:  For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)   conceal an innate or immutable characteristic of the person; or

   (c)    without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)   the persecution must involve serious harm to the person; and

   (c)    the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)    a threat to the person’s life or liberty;

   (b)   significant physical harassment of the person;

   (c)    significant physical ill‑treatment of the person;

   (d)   significant economic hardship that threatens the person’s capacity to subsist;

   (e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   5K Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)   disregard any fear of persecution, or any persecution, that:

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L Membership of a particular social group other than family

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)    a characteristic is shared by each member of the group; and

   (b)   the person shares, or is perceived as sharing, the characteristic; and

   (c)    any of the following apply:

   (i)the characteristic is an innate or immutable characteristic;

   (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)the characteristic distinguishes the group from society; and

   (d)   the characteristic is not a fear of persecution.

   5LA Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)    protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)    the person can access the protection; and

   (b)   the protection is durable; and

   (c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

   ..

   36 Protection visas – criteria provided for by this Act

   …

   (2A)A non‑citizen will suffer significant harm if:

   (a)   the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)   the death penalty will be carried out on the non‑citizen; or

   (c)   the non‑citizen will be subjected to torture; or

   (d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)   the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   …