1608524 (Refugee)

1608524 (Refugee) [2019] AATA 5955 (1 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1608524
COUNTRY OF REFERENCE:                   India
MEMBER:Linda Symons
DATE:1 August 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 01 August 2019 at 9:22am

CATCHWORDS
REFUGEE – protection visa – India – fear of Pakistani militants – recruitment attempts by local drug dealers – credibility concerns – inconsistent evidence – omission of key claims in visa application – residence in another country without applying for protection – voluntary return to India – failure to complete study in another country – unlawful stay in another country – delay in leaving India after grant of visa – delay in applying for protection in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 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 a [temporary] visa on 20 June 2013. That application was refused on 27 June 2013. On 1 December 2014, he again applied for a [temporary] visa. This visa was granted on 3 December 2014 and was valid until 4 April 2015. He arrived in Australia [in] February 2015. On 30 March 2015, he was granted a Bridging A visa in association with his application for a Protection visa. That visa remains in effect.
The applicant applied to the Department of Home Affairs (the Department) for a Protection visa on 24 March 2015. The delegate refused to grant the visa on the basis that he is not a person in respect of whom Australia has protection obligations. On 10 June 2016, he applied to the Tribunal for a review of that decision.
The applicant appeared before the Tribunal on 21 May 2019 to give evidence and present arguments. He was assisted by an interpreter in the Punjabi and English languages.
The issues that arise on review are whether the applicant is owed Australia's protection under the refugee criterion or under the complementary protection criterion.
CRITERIA FOR A PROTECTION VISA
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.
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.
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).
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 in the attachment to this decision.
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 in the attachment to this decision.
Mandatory considerations
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.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
The applicant’s claims in his application for a Protection visa are summarised as follows:
·He left India to visit Australia.
·He is of Sikh background. He lived in the Gurdaspur area near the border with Pakistan and there is generally civil unrest in the area.
·Militants cross the border, enter people’s houses and offer money tor residents to join them in their violence.
·People suspect that he has links to these militants and he is fearful to live in the area.
·He cannot wear his turban because he fears being targeted.
·He cannot relocate to another city because he does not speak Hindi well, is not educated and would not be able to find work. He is also not known in any other community.
·There is no safety in India and anarchy and restlessness are on the rise. The authorities do not have enough resources to deal with the problems so many complaints are not taken seriously.
·He is fearful for his life if he returns to India. He is known in his community and it will be known if he returns to the community. His life would be at risk if he returns to India.
The applicant has provided to the Department copies of his Indian passport and country information on India.
The applicant attended an interview with the Department on 18 March 2016. During that interview, he made the following new claims:
·His brother, who is also from Gurdaspur, is a [rank] in the Indian Police. His father used to be [a rank] in their area prior to his death.
·In 2006, drug dealers tried to recruit him so they could establish links to his father who was a well-known Police Officer. The drug dealers were his friends and wanted him to get involved in drug distribution but he repeatedly refused to do so. One of the reasons he decided to go to [Country 1] was to get away from these attempts to recruit him.
·He studied in [Country 1] between 2008 and 2011 and returned to India between 2008 and 2009 to seek treatment for a problem with [Medical Condition 1]. He did not complete a [Qualification in Subject]. After dropping out of his course he remained in [Country 1] unlawfully for several months. When he returned to India the drug problem had become worse.
·In May or June 2013, his friends introduced him to other drug dealers who tried to recruit him. When he refused to join them they threatened to kill him if he told anyone of their meeting.
·In October or November 2014, he was kidnapped by drug dealers and taken to a small village where he was interrogated. The Police had recently done some successful raids and they thought he had reported them and their whereabouts. They demanded he either work for them or compensate them for drugs lost during the Police operation.
·They released him after he asked for time to think about their offer. He went into hiding in different villages after re-registering his business into the co-owner’s name. He contacted his sister in Australia and asked to visit her. He managed to apply for a visa in December 2014.
·Some Sikhs were killed by Police during raids and Police can identify Sikhs by their turbans.
·Relocation is not an option because drug dealers have links to corrupt politicians and Police Officers.
Following the interview, the applicant’s migration agent wrote to the Department on 30 March 2016 and sought to clarify some of the evidence given by the applicant during the interview on 18 March 2016. He made the following submissions:
·When he referred to drug smugglers he was also referring to terrorists. His experience is that smugglers and terrorists work together.
·He did not want to return to India from [Country 1] but developed a [Medical Condition 2] for which he did not have the financial resources to be able to seek treatment in [Country 1]. When he recovered from the treatment he returned to [Country 1]. He tried to have his visa extended but could not. He did not apply for protection in [Country 1] because his circumstances were not dire then.
·He did not wear a turban because there was a major incident in his area when the Sikh community rioted and the Police intervened. After this incident, some Sikhs did not wear turbans. He did not wear a turban and at times was ridiculed and harassed by radicalised Sikhs for not wearing a turban.
The applicant has provided to the Tribunal a copy of the Department’s Decision Record dated 20 May 2016.
Receiving country
The applicant claims to be a citizen of India and has provided a copy of his Indian passport to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of India. The Tribunal finds that India is his receiving country for the purpose of assessing his claims for protection.
Third country protection
There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Assessment of claims
The applicant gave evidence that his application for a Protection visa was prepared by his lawyer based on his instructions which were true and correct. He stated that he is satisfied that his application for a Protection visa is accurate and complete. He also stated that he did not provide his lawyer “the full details”. He stated that there have been no changes in his circumstances since he filed his visa application.
During the hearing, the Tribunal discussed with the applicant his family, education, employment, where he lived in India, his time in [Country 1], events that occurred in India and why he fears returning to India. The Tribunal found aspects of his evidence to be evasive, implausible, contradictory and unconvincing. He was unable to provide a consistent account of events. He made new claims throughout the process. His evidence to the Tribunal was significantly different to his written claims in his visa application. His conduct was not consistent with his claims. The Tribunal finds that he is not a witness of truth for the following reasons:
First, In his application for a Protection visa the applicant claimed that he lived in the Gurdaspur area near the border with Pakistan, militants cross the border, enter people’s houses and offer money tor residents to join them in their violence, people suspect that he has links to these militants, he is fearful to live in the area and is unable to relocate within India. He also claimed that he cannot wear his turban because he fears being targeted.
The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 20 May 2016 which indicates that during his interview he made a new set of claims that are completely different from the claims made in his visa application. He claimed that drug dealers, who were his friends, tried to recruit him and introduced him to other drug dealers who also tried to recruit him.
During the hearing, the Tribunal discussed with the applicant the problems he had in India. He gave evidence of the problems he had with drug dealers. He made no reference to militants from across the border with Pakistan offering money to Indians to join them in their violence or people suspecting him of having links with these militants. This is not consistent with his evidence that his visa application was prepared by his lawyer based on his instructions which were true and correct and that he was satisfied that his visa application was accurate. He also stated that his visa application was prepared in haste.
The Tribunal is not satisfied that this explains why the applicant made a new set of claims during his interview with the Department. The Tribunal is of the view that, even if his visa application was prepared in haste, the substance of his claims would be the same. The Tribunal would also expect that significant events, such as him being kidnapped, would have been mentioned in his visa application and the details provided in a written statement at a later date. Further, the Tribunal does not accept his migration agent’s submission that when he referred to drug smugglers during his interview with the Department he was also referring to terrorists.
The Tribunal raised this as an issue with the applicant. He responded that when he saw his migration agent to provide him with instructions for the preparation of his application for a Protection visa he was asked ‘tell me what is happening in your area’. He stated that he told him the “main things” that happened recently and that is how he completed the visa application. He stated that the “headlines” were in the visa application. The Tribunal noted his oral evidence that he left India because he feared for his life from drug dealers and fears returning to India for this reason but this was not mentioned in his visa application. He responded that he told this to his migration agent and does not know why he did not mention it in his visa application. He then stated that his migration agent just got information from him about his area.
The Tribunal finds this evidence to be implausible and does not accept it. If the applicant only told his migration agent about the “main things” and the “headlines”, the Tribunal would expect that the “main thing” and the most significant event was his kidnapping yet this was not mentioned in his visa application. The Tribunal also finds it implausible that he would have mentioned the kidnapping to his migration agent and his migration agent did not include it in his visa application.
The applicant’s failure to refer to his written claims during his interview with the Department and during his hearing with the Tribunal and the new set of claims made after he filed his visa application raise concerns in relation to his credibility and the veracity of his claims.
Second, in his visa application, the applicant claimed that he is a Sikh and cannot wear his turban because he fears being targeted. He has filed with the Tribunal a copy of the Department’s Decision Record dated 20 May 2016 which indicates that during his interview with the Department he claimed that some Sikhs were killed by Police during raids and Police could identify Sikhs by their turbans.
Following the Departmental interview, the applicant’s migration agent provided a submission to the Department in which he submitted that the applicant did not wear a turban because there was a major incident in his area when the Sikh community rioted and the Police intervened. He submitted that, after this incident, some Sikhs did not wear turbans. He submitted that the applicant did not wear a turban and at times was ridiculed and harassed by radicalised Sikhs for not wearing a turban.
During the hearing, the Tribunal asked the applicant whether he had any other problems in India besides the problems he had with drug dealers and he responded no. He stated that he just feared the drug dealers. When asked whether he had any problem wearing or not wearing a turban, he responded no. These contradictions in his evidence raise concerns in relation to his credibility and the veracity of his claims.
Third, the applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 20 May 2016 which indicates that during his interview he made new claims that he was kidnapped by drug dealers in October or November 2014 and taken to a small village where he was interrogated. He claimed that they thought he had reported them to the Police and that was why they had been recently raided. He claimed that they demanded that he either work for them or compensate them for the drugs they lost as a result of the Police raid. He claimed that he asked for some time to think about it and they released him.
During the hearing, the applicant gave a different version of events. He stated that he was forcibly taken to a village in 2013 where he was shown packets of drugs and offered “good money” if he was prepared to deliver them to specified places. He claimed that he asked for some time to think about their offer and they then released him.
The Tribunal has concerns in relation to this evidence. Firstly, there is an inconsistency in the applicant’s evidence in relation to when he was kidnapped. Secondly, there is an inconsistency in his evidence in relation to what happened when he was taken to the village by the kidnappers. Thirdly, the Tribunal finds it implausible that the kidnappers would have gone to the trouble of kidnapping him and then released him to give him time to think about their offer particularly when they had previously tried to recruit him in May or June 2013 and he had refused.
The Tribunal raised these issues with the applicant and he responded that the kidnappers took him to their headquarters and showed him their stuff. He stated that he is a little confused as to whether he was kidnapped in 2013 or 2014. The Tribunal is not persuaded by this response and does not accept it. It does not alleviate the Tribunal’s concerns.
Fourth, during the hearing, the applicant stated that he fears that if he returns to India the drug dealers will harass him and kill him. However, despite the fact that his kidnappers released him in 2013 or, alternatively, in October or November 2014 on the basis that he would consider their demand that he work for them and he did not agree to work for them, he was able to remain in India and work there until February 2015 without suffering any consequences for failing to work for them. This raises concerns in relation to his credibility and the veracity of his claims.
When the Tribunal raised this as an issue with the applicant, he responded that he kept asking them for time. He stated that he told his friend (at work) that he was going to leave and organise someone else. He stated that he avoided the drug dealers for 3 or 4 months. The Tribunal does not accept this explanation in view of his own evidence to the Tribunal that he worked in the same job from June 2013 to February 2015 and that his drug dealing friends would sometimes go to his workplace.

Fifth, during the hearing, the applicant gave evidence that his visa application was prepared by his lawyer based on his instructions which were true and correct and that he was satisfied that his visa application is accurate. In his visa application, he stated in response to question 82 – Previous addresses – that he lived at the same address in Gurdaspur in India from July 1984 to February 2015. He also stated in his visa application that he studied in [Country 1] from [September] 2008 to [January] 2011. During the hearing, he gave evidence that he lived at one address in Gurdaspur from the time of his birth (in 1984) until he left India to travel to Australia [in] February 2015. When asked whether he had lived anywhere else in India, he answered no. Later in his evidence, he stated that he sometimes lived at his grandparents’ house.
This evidence is not consistent with the new claims the applicant made during his interview with the Department. He has filed with the Tribunal a copy of the Department’s Decision Record dated 20 May 2016 which indicates that during his interview with the Department he made new claims that after his kidnappers released him he went into hiding in different villages after re-registering his business into the co-owner’s name. He did not refer to this during the hearing. These inconsistencies in his evidence raise concerns in relation to his credibility and the veracity of his claims.
The Tribunal raised these issues with the applicant and he responded that the address in Gurdaspur was his permanent address and that never changed. The Tribunal is not persuaded by this response as the Tribunal did not ask him about his permanent address but rather where he had lived in India and he stated that he had not lived anywhere else other than Gurdaspur.
Sixth, the applicant’s claims that after his kidnappers released him he went into hiding in different villages after re-registering his business into the co-owner’s name is not consistent with his evidence to the Tribunal or his evidence in his visa application. In his visa application, he stated that he worked at the [Workplace] in Gurdaspur from May 2014 until current (current [being] March 2015). In his evidence to the Tribunal, he stated that he worked at the [workplace] from June 2013 to February 2015 and his drug dealing friends used to visit him there. He could therefore not have been in hiding if he continued to work in his job and his drug dealing friends were aware of where he worked and used to visit him there. This raises further concerns in relation to his credibility and the veracity of his claims.
The Tribunal raised this as an issue with the applicant and he responded that he never used to go home and never went to the laboratory regularly. He stated that he sometimes did not go to work for two days. He stated that he told the Tribunal what happened to him and may have got the dates mixed up. The Tribunal is not persuaded by this response and does not accept it. It does not alleviate the Tribunal’s concerns.
Seventh, the applicant’s conduct in [Country 1] was not consistent with his claims. He has filed with the Tribunal a copy of the Department’s Decision Record dated 20 May 2016 which indicates that during his interview with the Department he made new claims that in 2006 drug dealers tried to recruit him so they could establish links to his father who was a well-known Police Officer. He claimed that the drug dealers were his friends and wanted him to get involved in drug distribution but he repeatedly refused to do so. He claimed that one of the reasons he decided to go to [Country 1] was to get away from these attempts to recruit him. He claimed that he studied in [Country 1] between 2008 and 2011 and returned to India between 2008 and 2009 to seek treatment for a problem with [Medical Condition 1]. He claimed that he dropped out of his course in [Country 1] and remained there unlawfully for several months.
Following the Departmental interview, the applicant’s migration agent provided written submissions to the Department in which he submitted that the applicant did not want to return to India from [Country 1] but developed a [Medical Condition 2] for which he did not have the financial resources to be able to seek treatment in [Country 1]. He submitted that when he recovered from the treatment he returned to [Country 1]. He submitted that he tried to have his visa extended but could not. He submitted that he did not apply for protection in [Country 1] because his circumstances were not dire then.
This evidence raises a number of concerns for the Tribunal. Firstly, if one of the reasons the applicant decided to go to [Country 1] was to get away from drug dealers who were attempting to recruit him there was no reason for him to expect that the situation would be any different when he returned to India. In these circumstances, the Tribunal would expect him to have sought immigration advice in [Country 1] with a view to obtaining permanent residence there and to have applied for asylum in [Country 1]. His evidence to the Tribunal is that he did not seek any immigration advice in [Country 1].
Secondly, the applicant’s explanation for why he returned to India from [Country 1] between 2008 and 2009 was to seek treatment for a problem with [Medical Condition 1]. However, his migration agent submitted that the reason he returned to India was to seek treatment for a [Medical Condition 2] and that he returned to [Country 1] after he recovered from his treatment. This inconsistency in the evidence raises concerns in relation to the credibility of the claims as to why the applicant returned to India between 2008 and 2009. If he did not return to India for medical reasons, this raises further concerns in relation to the credibility of his claims in view of his voluntary return to India.
Thirdly, the applicant’s migration agent’s submission that the applicant tried to have his visa extended in [Country 1] but could not is not consistent with the applicant’s evidence to the Tribunal. His evidence to the Tribunal was that he did not complete his course in [Country 1], his Student visa expired in about March 2010, he remained in [Country 1] unlawfully for 8 or 9 months, could not get a job and had money problems.
The Tribunal raised as an issue with the applicant his failure to claim asylum in [Country 1]. He responded that it only got worse after he returned to India from [Country 1]. He stated that when the drug dealers got caught they started harassing him and making threats. He stated that they used to dangle carrots in front of him previously. He stated that the main problem was when the drug dealers were caught and they thought he was involved. He stated that they were under the impression that they could harass him or get him to work for them.
The Tribunal is not convinced by this response particularly in view of the applicant’s own evidence that one of the reasons why he went to [Country 1] was to get away from the drug dealers. His conduct is not consistent with his claims and raises concerns in relation to his credibility and the veracity of his claims.
Eighth, the applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 20 May 2016 which indicates that during his interview with the Department he made new claims that he was kidnapped by drug dealers and then released, after his release he re-registered his business into the co-owner’s name, went into hiding in different villages, contacted his sister (who is an Australian citizen), asked if he could visit her and then applied for an Australian visa in December 2014.
During the hearing, the applicant gave evidence that he has never had an application for a visa refused. The records of the Department indicate that he applied for a [temporary] visa to come to Australia on 20 June 2013 and that application was refused on 27 June 2013. He then made another application for a [temporary] visa on 1 December 2014 and that application was successful. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that this tends to indicate that he has wanted to come to Australia for a long time and this raises concerns in relation to the credibility of his claim that he applied for a [temporary] visa in December 2014 because of the problems he had with drug dealers in India.
The applicant responded that this was when his sister wanted him to come to Australia and have a look around. He stated that he was not interested in coming over here at that time (2013). He stated that he did not realise that the problems would increase. He stated that that is when he realised that he had another option and asked again.
The Tribunal does not accept this response for a number of reasons. Firstly, the reason why the applicant did not come to Australia in 2013 was not because he was not interested in coming here but because his application for a [temporary] visa was refused. Secondly, his evidence that he did not realise that the problems would increase (after 2013) is not consistent with his claim during the Departmental interview that when he returned to India from [Country 1] in 2011 the drug problem had become worse. His response does not alleviate the Tribunal’s concerns.
Ninth, the applicant’s evidence to the Tribunal is that his father was [a rank] and passed away in 2006. He stated that his brother is a Police Officer and he lived with his brother until he left India [in] February 2015. When asked whether he told his brother about the problems he was having with the drug dealers, he responded no. He stated that his brother was doing his job and he did not want to cause him stress and tension. He stated that his brother might have got into trouble with other high ranking Police officers.
The Tribunal finds this evidence to be implausible for a number of reasons. Firstly, the Tribunal would expect that if the applicant was in a situation where he feared for his life from drug dealers the first person he would have told was his brother particularly as his parents had passed away, his sister lived in Australia, his brother was his closest relative in India, he lived with his brother and his brother was a Police officer. Secondly, the Tribunal would expect his brother to have questioned him as to why he needed to leave home, go into hiding and move from village to village. Thirdly, it is implausible that he would have told his sister about the problems he was having in India and sought her assistance to get a visa for Australia but not told his brother what was happening when he was living with his brother. This raises further concerns in relation to his credibility and the veracity of his claims.
Tenth, the applicant’s conduct in India was not consistent with his claims. The records of the Department indicate that he was granted a [temporary] visa on 3 December 2014. However, he did not arrive in Australia until [February] 2015. That was almost 3 months after he was granted the [temporary] visa. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that his delay in leaving India after he was granted a [temporary] visa was not consistent with his claims that he was in hiding and feared for his life. The Tribunal noted that if that was the case it would expect him to have left India as soon as he was granted the [temporary] visa. The Tribunal noted that his delay in leaving India raises concerns in relation to his credibility and the veracity of his claims.
The applicant responded that the [workplace] was registered in his name. He stated that his friend did not have any qualifications and it was an investment on his part. He stated that he told his friend that he was going to leave and to find someone else. He stated that this was the reason for the delay. He stated that he mentioned this in his interview with the Department.
The Tribunal does not accept this response for a number of reasons. Firstly, it is not consistent with the applicant’s claims that he re-registered the business into the co-owner’s name before he went into hiding. Secondly, if he was looking for someone to replace him at the laboratory he could not have been in hiding. Thirdly, if he genuinely feared for his life and was in hiding he would not have placed the business ahead of his life. His response does not alleviate the Tribunal’s concerns.
Eleventh, the applicant’s conduct in Australia was not consistent with his claims. The records of the Department indicate that he arrived in Australia [in] February 2015 on a [temporary] visa that was valid until 4 April 2015. He did not apply for a Protection visa until 25 March 2015. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that, in view of his evidence to the Tribunal that he came to Australia with the intention not to return to India, it would expect him to have obtained immigration advice as soon as possible after coming to Australia and lodged his application for a Protection visa. The Tribunal noted that he waited until a few days before his [temporary] visa expired before he applied for a Protection visa. The Tribunal noted that it may find that he did that because he wanted to prolong his stay in Australia for as long as possible and that he applied for this visa to maintain residence in Australia and not because he is in need of protection.
The applicant responded that when he came to Australia he spoke to a lawyer. He stated that he had a ‘no further stay’ stamp on his [temporary] visa. He then stated that he spoke to one or two lawyers who told him that he could not apply for any other visa. He stated that he was referred to Mr [A] who told him that if he wanted to stay in Australia there was no other option than to apply for protection. The Tribunal is not persuaded by this response and does not accept it.
At its highest, the applicant’s claims relate to his drug dealing friends trying to persuade him to join them in their criminal activities and introducing him to other drug dealers who wanted him to join them in their criminal activities. He did not report these criminals to the Police or seek the assistance of his brother, who is a Police Officer, or the protection of the Police. His claims for protection do not fall under any of the grounds set out in the definition of a refugee in s.5J(1)(a) of the Act. The Tribunal raised this as an issue with the applicant and he responded that all he knows is that he fears for his life and that is it. His response does not address the issue raised with him.
The Tribunal has had regard to the submissions made by the applicant’s migration agent.
The Tribunal has had regard to the country information provided by the applicant to the Department. This country information refers to a terrorist attack on an air force base in Punjab in January 2016, an incident where three Pakistani terrorists entered India through Pathankot, attacked a passenger bus and stormed a Police Station in Dinanagar town in July 2015 and articles dated 2016 about a Police officer involved in drug smuggling.
Other considerations
The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility.The Tribunal has also had regard to the DFAT Country Information Report on India and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.
Findings
Having considered all of the applicant’s claims and all the evidence, the Tribunal finds that the applicant is not a credible or reliable witness. The Tribunal finds that he fabricated his material claims for the purpose of obtaining a Protection visa.
The Tribunal accepts that the applicant was born on [date] at Gurdaspur in Punjab Province in India. The Tribunal accepts that he is a Sikh. The Tribunal accepts that his parents have passed away and that he has one brother and one sister. The Tribunal accepts that his brother is a Police officer and lives in India and his sister is an [occupation], lives in Australia and is an Australian citizen.
The Tribunal accepts that the applicant attended [an Institution] in India and obtained qualifications as [an Occupation 1] in July 2006. The Tribunal accepts that he obtained a Student visa for [Country 1] and lived in [Country 1] between [September] 2008 and [January 2011]. The Tribunal accepts that he departed [Country 1] [in] April 2009 to travel to India and returned to [Country 1] [in] May 2009. The Tribunal accepts that he did not complete his studies in [Country 1] and remained in [Country 1] unlawfully for eight or nine months after his Student visa expired. The Tribunal accepts that he did not obtain immigration advice or seek asylum in [Country 1].
The Tribunal accepts that after the applicant returned to India he worked as [an Occupation 1] from June 2013 to February 2015. The Tribunal accepts that he departed India [in] February 2015 to travel to Australia on a [temporary] visa. The Tribunal accepts that since coming to Australia he has worked initially as a [Occupation 2] and then as a [Occupation 3].
The Tribunal does not accept that people think that the applicant has links to militants who cross the border from [Country 1] into India and offer Indians money to join them in their violence and that he is fearful of living in the area for that reason. The Tribunal does not accept that there is no safety in India and anarchy and restlessness is on the rise. The Tribunal does not accept that he is unable to obtain State protection in India. The Tribunal does not accept that he is fearful for his life if he returns to India and his life would be at risk if he does so.
Alternatively, the Tribunal does not accept that the applicant’s drug dealing friends put pressure on him to join them in their criminal activities and that this was one of the reasons why he went to [Country 1]. The Tribunal does not accept that his drug dealing friends introduced him to other drug dealers who put pressure on him to join them in their criminal activities. The Tribunal does not accept that he was kidnapped and threatened by drug dealers. It follows that the Tribunal does not accept any of his claims that flow from these claims.
The Tribunal does not accept that the applicant cannot wear his turban because he fears being targeted. The Tribunal does not accept that he was ridiculed and harassed by radicalised Sikhs for not wearing a turban.
The Tribunal does not accept that the applicant is of adverse interest to drug dealers, drug smugglers, militants, terrorists, radicalised Sikhs or any other person, group or authority in India.
The Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm for any of the reasons claimed if he returns to India now or in the reasonably foreseeable future.
The Tribunal accepts that the applicant would prefer to live and work in Australia and does not wish to return to India.
Does Australia have protection obligations to the applicant under the refugee criterion?
Having considered all of the applicant's claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal finds that there is no real chance that the applicant will suffer serious harm for any reason set out in s.5J(1)(a) of the Act if he returns to India now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Does Australia have protection obligations to the applicant under the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to India now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that he does not satisfy the criterion in s.36(2)(aa) of the Act.
CONCLUSION
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) or s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, he does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.

L.Symons
Member
ATTACHMENT - 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.

…
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.
…
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.

…
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.

..
36Protection 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.
…

[2019] AATA 5955

1 August 2019

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