1610208 (Refugee)

[2019] AATA 6172

1610208 (Refugee) [2019] AATA 6172 (29 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1610208

COUNTRY OF REFERENCE:                   India

MEMBER:Paul Millar

DATE:29 August 2019

PLACE OF DECISION:  Sydney

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

Statement made on 29 August 2019 at 3:35pm

CATCHWORDS   
REFUGEE – protection visa – India – religion – Islam – fear of harm from Hindus – Rashtriya Swayamsevak Sangh (RSS) supporters – claimed physical harm in the past – claimed continue harassment of family members – credibility concerns – inconsistent evidence – voluntary return to India – mother seriously ill – 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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 June 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).  The applicant, who the Tribunal finds to be a citizen of India, applied for the visa on 28 August 2015.[1]  The applicant appeared before the Tribunal on 22 August 2019 to give evidence and present arguments. The hearing was conducted with the assistance of a Tamil (Indian) speaking interpreter.  The applicant was represented in relation to the review by his registered migration agent. The representative attended the hearing.

   [1] The Tribunal's finding on citizenship is based on copies of pages from the applicant's Indian passport which appear at folio 67 of the Department file.

   CRITERIA FOR A PROTECTION VISA

2. 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.

3. 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.

4. 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).

5. 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.  

6. 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).

   Mandatory considerations

7. 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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   FINDINGS

8. For the following reasons, the Tribunal concludes that the decision under review should be affirmed.  According to his evidence to the Department and the Tribunal, the applicant claims protection on the ground that Hindus will harm him because he is a Muslim.[2]  The Tribunal holds the following concerns about the applicant’s credibility.

   Credibility concerns

   Areas of inconsistency in the applicant’s evidence

   Evidence about being attacked in May 2015

   [2] The applicant's evidence to the Department and the Tribunal comprises the contents of the protection visa application forms; his statutory declaration made on 31 August 2015; his written ‘submissions’ dated 16 August 2019 addressed to the Tribunal and his evidence at the Tribunal hearing.  The applicant did not attend an interview with the delegate. 

9. The applicant’s evidence to the Tribunal and his evidence in his statutory declaration made on 31 August 2015, about being attacked by Hindus in May 2015, was inconsistent.  In his declaration, the applicant gave the following account of this matter (verbatim):

   “On [date 1] May 2015 I travelled to West Bengal on business. I was carrying over Rs 200,000 in cash. On [date 2] May 2015 I visited a [supplier] in the [X] district who was a Hindu. On [date 2] May 2015 there was sudden communal between Hindus and Muslims and over 4 people were killed and dozens injured.

   I was harassed by the Hindu mob as I was a Muslim. The Hindu mob accused me of being part of the extremist Muslims and threatened to kill me. I was forced to pay them Rs 200,000 so that they will not kill me. They destroyed all my belongings, stripped me naked and chased me away.

   I tried to make a first information report at the [X] district Police station. However at the Police station I was told that the police will not accept a complaint from me and accused me of being part of the group who clashed with the Hindus. The police stated that they will release to the Hindu mobs if I don’t go away. I was physical and mentally scarred by this incident.”

10. In stark contrast to this evidence, to the Tribunal, the applicant said that in May 2015 he travelled to West Bengal in relation to a [business] that he was operating in his native area in Tamil Nadu.  The applicant said that the day after he arrived in West Bengal, in the morning, he went to meet some people in relation to his business and then returned to his hotel.  He said that at approximately 12 noon he was in his hotel room and began to hear noise coming from outside the building. The applicant went to the entrance of the hotel to investigate and with other guests stood outside the entrance to the hotel where they could see a rally taking place.

11. The applicant said that the rally was held by approximately 50 people who were screaming, shouting and holding up flags.  When asked what these people were saying, the applicant said that it was about appreciating Hindus.  The crowd were also hurling abuse at others including Muslims.  The people in the rally immediately noticed the applicant and the other guests and began to rush toward them.  The applicant ran into his room in the hotel, but he was pursued by about 20 or 25 of these people.  They came into his room and beat him. He understood that similar things happened to the other guests who had been with him.

12. When asked why these people pursued him, the applicant said that it was because they had seen him and the other guests watching them. He said that on that same day Hindus had attacked shops and set fire to property.  When again asked why these people pursued and attacked him in his hotel room, the applicant said that he did not know if there was any other reason beyond those he had just given.  The Tribunal asked the applicant what these people said to him in the hotel room. In response, the applicant said that they asked him why he had come to that place and also said that he was a Muslim.  The applicant then said that they took an amount of cash he had in his room, Rs 200,000, and just left the premises.

13. The Tribunal asked the applicant how he was beaten by these people. In response, the applicant said that they used iron rods and poles and just bashed him.  The Tribunal asked the applicant whether these people did anything else to him.  In response, the applicant said that they did nothing else to him.  The Tribunal asked the applicant how they came to take the cash he had kept in his hotel room.  In this respect, the Tribunal asked the applicant whether these people just saw the money and took it.  In response, the applicant said that the cash was in a bag in the room and once they saw it, they just took it.

14. The Tribunal asked the applicant whether, at that time, these people said anything to him, including about the cash.  In response, the applicant said that he told them not to take the cash. They just asked him whether that was all he had and then kicked him before taking the money and leaving the room.  The Tribunal again asked the applicant whether they said anything else and, in response, the applicant said that they just took the money and left.  The Tribunal then asked the applicant whether these people made any threat to him.  In response, the applicant said that these people told him not to go to the police and, if he did, they would treat him severely. The applicant said that this was the only threat they made.

15. The Tribunal asked the applicant what he did once these people left his hotel room.  In response, the applicant said that the police arrived near the hotel to clear the area.  When asked what he did then, the applicant said that, on that same day, he went to a police station to make a complaint about what happened.  He said that the police did not respond.  The applicant also said that although he had been beaten badly in his hotel room he did not seek medical treatment. This was because he thought that it was better that he go to the police station and make a complaint in the hope of retrieving the cash that was stolen from him.

16. The Tribunal asked the applicant what the police said to him when he attended at the station. In response, the applicant said that the police could see that he was not a local and they said that he should go back to his local area because the Hindus involved in that day’s violence were strong people in that area in West Bengal.  The Tribunal put that evidence back to the applicant and asked him to confirm that it was correct.  In response, the applicant said that the account he had just given was correct.  He then said that the police told him that the violence could start again so he should return to his native area soon.  When asked if the police said anything else to him, the applicant said that they said nothing else.

17. The Tribunal asked the applicant whether the police did not take his complaint because they thought that he should just leave the area as soon as possible for his safety. In response, the applicant said ‘maybe’.  When asked if there was any other reason the police did not take his complaint, the applicant said that Muslims were a minority so possibly that was also a reason. He added that, however, the police said nothing about his religion.

18. The Tribunal put to the applicant that the account he gave to the Tribunal about this particular incident was inconsistent in a number of respects with his account in his statutory declaration.  First, in his statutory declaration, the applicant conveys the impression that he was attacked by Hindus in a particular district he visited to meet people for his business.   In his declaration, the applicant omits any mention of a Hindu mob chasing him into the hotel where he was staying and attacking him in his room in that hotel.  Further, according to his declaration, the people who attacked him did not so much as steal his money, as he told the Tribunal, but, he gave that money to them in response to their threat that they would kill him.  To the Tribunal, the applicant did not claim that these people threatened to kill him.  Finally, according to his declaration, the people who attacked him stripped him naked and chased him away.  To the Tribunal, he said that these people attacked and beat him, stole his money and simply left the hotel.

19. In response to these discrepancies, the applicant said that he suffered from memory loss and he just told the Tribunal whatever he could remember.  The Tribunal asked the applicant which account was correct, the account in his declaration or the account he gave to the Tribunal. In response, the applicant said that both accounts were similar, but, the Tribunal does not agree. The applicant then said that what he told the Tribunal about this incident was correct. The Tribunal then asked the applicant to confirm that his attackers did not strip him naked and chase him away, as he claimed in his declaration.  In response, the applicant introduced new evidence and said that, in fact, his attackers did strip him naked in his hotel room and he did not mention this in his initial evidence to the Tribunal because it was upsetting. 

20. He added, in addition, that his attackers did, in fact, chase him out of his hotel room.  The Tribunal asked the applicant where he went once he ran out of his hotel room naked.  In response, the applicant said that he ran out of the hotel, through the streets and hid in a small [building] for approximately four or five hours.  By that time, it was a bit dark, he saw some people and they gave him clothes to wear. He then covered himself and returned to his hotel.  The Tribunal asked the applicant why he did not give that evidence to the Tribunal when he was initially questioned about this incident and asked to give an account of it. In response, the applicant said that he did not initially mention being stripped naked, being chased out of his hotel room and hiding in a [building] for some hours, because he was ashamed.

21. The Tribunal rejects this explanation because, if the applicant was willing to state in his declaration that his attackers stripped him naked and chased him away, the applicant could reasonably be expected to give that account to the Tribunal when initially questioned about what happened on this particular occasion.  The applicant’s failure to do so and his introduction of a new account once reminded of the contents of his declaration, reflected poorly on his credibility and indicated a willingness on his part to fabricate evidence where he saw it as advantageous to do so.

22. The Tribunal asked the applicant whether, in the hotel room, his attackers actually threatened to kill him.  In response, applicant said that they did make that threat.  The Tribunal asked the applicant whether, therefore, he actually gave his attackers the Rs 200,000 cash he had in his hotel room so that they would not kill him. In response, the applicant said that was correct. The Tribunal then asked the applicant why, in his initial evidence, he gave a different account in which he made no claim that his attackers threatened to kill him and in which he said that they simply saw the cash and took it. In response, the applicant said that he did not give that evidence initially because it was only after being reminded of this account in his declaration that he then remembered it. 

23. When asked why he initially told the Tribunal that his attackers simply just took the cash from his bag in his room, the applicant said that they possibly opened the bag and took the money.  The Tribunal rejects the applicant’s explanations for this discrepancy.  If the applicant was relating a truthful account, he would have given the Tribunal, in his initial evidence, the account that he gave in his declaration and which he belatedly adopted once reminded of it by the Tribunal.  His initial account to the Tribunal and the account in his declaration are conflicting, he has failed to provide a satisfactory explanation for that and this discrepancy reflects poorly on his credibility.

24. Finally, the Tribunal put to the applicant that, according to his statutory declaration, he went to the police to make a complaint about being attacked and the theft of his money, the police refused to take his complaint alleging that he belonged to the group of Muslims who fought with the Hindus and, further, the police threatened to actually hand him over to the Hindu group if he did not leave the station.  In contrast, to the Tribunal, while the applicant did say that the police did not take his complaint, the tenor of his evidence was that, if anything, the police were concerned for his safety, telling him that the Hindus involved were strong in the area and that he should leave and return to his native area for his safety.

25. In response to this concern, the applicant said that the police he approached in West Bengal did threaten him and he claimed that he gave that evidence to the Tribunal.  The applicant was reminded by the Tribunal that he did not give that evidence when questioned about this incident and, in response, the applicant said that the police refused to take his complaint.  The applicant then said that, in fact, those same police did tell him to leave the station or they would hand him over to Hindu group.  When asked why he did not say that to the Tribunal when initially questioned about this incident, the applicant said that the police did tell him to go back to his village. 

26. Although the applicant did tell the Tribunal that in his initial evidence, as already stated, this was out of their concern for his safety. Overall, in his responses to this discrepancy, the applicant again displayed his willingness to invent or adopt earlier evidence when he saw it as advantageous to do so and in an attempt to conceal inconsistency in his accounts.  The Tribunal was most unimpressed by the applicant’s belated adoption of evidence in his statutory declaration only after being reminded of it.  The Tribunal has set out in full its exchange with the applicant as to what took place on this particular occasion and his initial account is inconsistent with the account in his declaration.  The applicant did not provide an adequate explanation for this and the inconsistency reflects poorly on his credibility.

    Evidence about harm suffered on return to his native town

27. The applicant’s evidence to the Tribunal and his evidence in his statutory declaration, as to the harm he suffered on return to his native town, was inconsistent.  In his statutory declaration, the applicant gave the following account of this matter (verbatim):

    “I returned to [the city in which the applicant’s native town is located ‘city A’] on [date 3] May 2015.  From around [date 4] May 2015 I received calls from various people trying to extort money. They said they were Hindus and they would kill me if I don’t comply. I have reason to believe the Hindu mobs in West Bengal are connected to these calls as they repeatedly stated that this time I will not be spared unlike the last incident in West Bengal.

    My family are so frightened they do not leave the house. I believe that I am being watched by the Hindu mobs who are trying to extort money.

    My repeated request for police protection has been declined by the police on the basis that I am making false accusations. I believe the Hindu mobs are acting together with the police.

    Under these circumstances I decided to travel to Australia and seek protection from the Government of Australia.”

1. In stark contrast to this account, to the Tribunal, the applicant said that on return to his native village he was very sad about losing his money. He said that this affected his business and he could not really do anything.  He then said that on a small scale he did continue to operate his business at premises away from his home (as he had done before going to West Bengal).  The applicant added that approximately two days after returning to his native area, people from a group he identified as the RSS, who he believed had connections with the Hindus who attacked him in West Bengal, came to his home.  The applicant said that there were approximately eight to ten men who came, half that number remaining outside and the rest coming into his home carrying wooden poles which they used to beat him.

2. The applicant said that these men told him that he had been in another state and that he had tried to make a complaint about the Hindus there.  These men told the applicant that if he did that again severe action would be taken on him.  The applicant understood that the men were telling him not to complain to the police about the theft of the cash in West Bengal.  The applicant said that these people returned to his home a few times after that and, as well, went to the premises where he was operating his business.  He said that when they went there, they always beat him. When asked how often they went to those premises, the applicant said that it was every ten or twelve days, whenever they wanted money.  They would demand money from him and sometimes took it by force.

3. The applicant said that, in addition to being approached by these people at his home and at his business premises, there were also occasions when he was on his bike and these men would approach and beat him.  When asked if he ever required medical treatment as a result of any of these occasions on which he was beaten, the applicant said that there were two or three occasions on which he had medical treatment for his injuries.  Also, the applicant said that he received threatening telephone calls from the same people who would threaten him not to go to the police or tell others in the local area about the harm he was suffering.

4. The Tribunal asked the applicant whether he ever went to the police in his native area to complain about the harm he was receiving from these RSS supporters.  In response, the applicant said that he twice complained to the police. He said that, on the first occasion, the police would not take a complaint from him. He then said that, after making an approach, the police told the RSS supporters who then came and severely beat him.  The Tribunal asked the applicant when he first approached the police.  In response, the applicant said that he approached the police after he had received four or five visits from the RSS supporters.  When again asked what the police told him on that occasion, he said that they just told him that they could not take his complaint and that he should go away. He then said that, after that, the RSS supporters severely beat him.

5. The Tribunal asked the applicant when he approached the police for the second time. In response, the applicant said that the first time he approached the police they said they could not take his complaint. He said that on the second occasion, he approached the police through a friend, but, the police again said they could not help him.  The Tribunal asked the applicant whether he actually approached the police in person on a second occasion.  In response, the applicant said that was correct but he took with him a person who had political influence.  He then said that after being severely beaten by the RSS supporters for first approaching the police, the applicant made the second approach and the RSS supporters again severely beat him. He then said that these two occasions in which he was severely beaten for approaching the police took place at his home.

6. The Tribunal put to the applicant that the account he gave to the Tribunal about the harm he suffered on return to his native village was inconsistent with his account of this period in his statutory declaration.  In his declaration, the only harm the applicant refers to in this period is receiving threatening telephone calls from people trying to extort money from him. While in his declaration he mentions this causing him and his family to be afraid and the applicant to feel that he was being watched and although he also mentions approaching the police who would not help him, the applicant makes no mention of the very important claims that, on a number of occasions, in more than one location, the same people beat him, sometimes so seriously that he had to have medical treatment for his injuries.

7. In response to this concern, the applicant said that he just forgot to mention those claims in his declaration. The Tribunal rejects that response because, if the applicant was relating a truthful account, he would have said in his declaration that, in addition to receiving threatening telephone calls, the people he fears also attacked and beat him a number of times.  In addition, the Tribunal reminded the applicant of an affidavit made by his sister on 16 May 2018 in which she also referred to this particular period and said that the applicant received threatening telephone calls from Hindu extremists trying to extort money from him.  His sister said that these people were aware that Hindus in West Bengal had taken the applicant’s money.

8. The Tribunal put to the applicant that his sister made no claim that, in this period, the applicant was beaten by these people a number of times.  In response, the applicant said that his sister was not present on the occasions he was beaten. He thought that she may have been at the home of another sister when these incidents occurred.  Again, the Tribunal rejects that response because he said that his sister and mother lived in the same home as him in India. If his sister knew that he was receiving threatening telephone calls, she would also have said that he was attacked a number of times, if these events truly happened.  She would have made those claims whether or not she witnessed those attacks and whether or not she was staying in the applicant’s home elsewhere for periods.

9. The Tribunal put to the applicant, in addition, that in his most recent ‘submissions’ of 16 August 2019 in which he makes a number of statements about his protection claims he made no claim that, after returning to his native village from West Bengal, Hindus attacked him a number of times. In response, the applicant said that he thought that those claims would have been mentioned and perhaps they were omitted by mistake.  The Tribunal rejects that response from the applicant as he could have easily mentioned in these most recent submissions that he was attacked a number of times, in addition to the statements contained in the submissions about the events that he claims occurred in India before he came to Australia. Overall, the applicant’s failure to mention in his statutory declaration, his submissions and the affidavit of his sister, his claims about being attacked, as well as his failure to provide a satisfactory explanation for that, reflected poorly on his credibility.

   Evidence about the applicant’s business

10. The applicant’s evidence about the business he operated India was inconsistent.  In this respect, to the Tribunal, the applicant said that in 1985 he started operating a small [business]. He said that he operated this business from his home. When asked if he did this until leaving India to come to Australia in July 2015, the applicant said ‘not that business’.  He said that he could not operate that business and, for that reason, travelled to a country in the Middle East in 2014 to work.  Further in his evidence, the applicant said that for almost five years before going abroad in 2014 he had closed his business.

11. When asked why he had stopped operating his business before going abroad, the applicant said that he was unable to operate it because he had some ‘small problems’.  When asked what those problems were, the applicant said that Hindu neighbours gave him trouble when his business was doing well. When asked what they did, the applicant said that they did things and he could not continue the business.  When again asked what trouble they caused him, the applicant said that they would turn up their radios, disconnect the electricity to his home and, on occasions, brought other people and would yell at him.  When asked why they did this, the applicant said that they did not like him doing that business. When asked why that was, the applicant said that he did not know. He said that, on occasions, he had tried to appease them, but they would not cooperate. In addition, they would verbally abuse his family, including saying offensive things about his mother.

12. As the applicant said that these neighbours were Hindus, the Tribunal asked him whether they were behaving this way because he was a Muslim.  In response, the applicant said ‘maybe’, only they knew the reason why they were behaving that way.  When asked if, before he went abroad in 2014, in the area where he lived, there had been conflict between Hindus and Muslims, the applicant said that it was not like it is now. From time to time small issues and arguments occurred. He then said that he was never involved in those incidents. The applicant then said that on return from his time abroad, he started the same [business], operating that business from premises in another area near his native village.

13. The applicant said that in November 2014 he registered this business saying that this meant that he got a licence to be able to run it legally. This encompassed permission to export goods but he never actually did that.  The applicant said that he operated this business up until leaving India to come to Australia in late July 2015.  In stark contrast to this evidence, in his statutory declaration, the applicant gave the following account about the business he was operating in India (verbatim):

    “I did not pursue any higher education and I started a career in business in 1985 under the name of [name of business].  The business was trading in [products].  The business commenced trading informally and thereafter it was formally registered as a business in 2014.  During this period the business grew from a small business into a medium scale import and export business over a period of 30 years.”

14. With his statutory declaration, the applicant attached a number of documents related to this business.[3]  According to these documents, in November 2014 the applicant established an export business, in March 2015 he obtained a code from the Indian government for that purpose and in early July 2015, following an application made by the applicant, this business was made a member of an Indian body responsible for export organisations, that body referring to the business as a ‘Merchant Exporter’.  Although these documents refer to the applicant establishing an export business in November 2014, considered with his statutory declaration, the Tribunal understands this evidence to be that the applicant commenced operating a business in 1985 which prospered over a period of 30 years to the point where, in late 2014, the applicant took steps to gain whatever permissions were needed to export products from India.

    [3] See folios 41-46 of the Department file.

15. The Tribunal put to the applicant that his evidence in his statutory declaration, to the effect that he continuously operated his business from 1985, virtually up until just prior to leaving India in July 2015, the business actually prospering and expanding over this period, was inconsistent with his evidence to the Tribunal.   In that respect, to the Tribunal, although the applicant said that he began his business in 1985, he stopped operating the business some years before actually leaving India in 2014 to seek employment abroad.  To the Tribunal, the applicant said that he stopped operating the business because of harassment from Hindu people in his local area.  After being unable to find employment abroad, in late 2014, the applicant returned to India and resumed this business, albeit, the tenor of his evidence was that, following the incident in May 2015 in West Bengal, the business was operating at a very low level. 

16. In response to this concern, the applicant simply repeated the account he gave to the Tribunal. He said that when he operated his business he had a lot of disturbance from others and so it stopped. He said that he did not give this evidence in his statutory declaration because the content of the declaration was simply what was in his mind at the time it was prepared.  The Tribunal rejects the applicant’s explanation because Tribunal can see no plausible reason for the applicant not to remember when preparing his declaration that, at some stage, he had to close his business due to harassment from local Hindus.  Indeed, the basis on which the applicant claims protection is a fear of harm from Hindus due to his religion.

17. While the applicant was diffident in his evidence to the Tribunal as to why Hindus in his local area harassed him when he was operating his business, prior to going abroad in 2014, if this harassment was so serious that he could no longer operate his business, the Tribunal could reasonably expect him to give that evidence in his statutory declaration.  The Tribunal acknowledges that in his protection visa application form the applicant mentioned travelling abroad in 2014 for ‘business development’, but, that does not equate with his evidence to the Tribunal that his business stopped operating prior to that time and he had gone abroad to seek employment.  Overall, the applicant’s evidence about his business is inconsistent, he has not provided an adequate explanation for that and this reflects poorly on his credibility.

    Aspects of the applicant’s account that are highly improbable

    The applicant’s conduct in the period following his return to his native village and before leaving India

18. After the applicant gave his evidence to the Tribunal about returning to his native village from West Bengal and being approached and attacked by people from the RSS, the Tribunal asked him when he stopped operating his business.  The Tribunal asked the applicant how long before leaving India in late July 2015 he closed his business. In response, the applicant said that he kept his business open, but, customers did not come as he did not want to show anyone that he was there. He then said that when he went to Australia he closed his business.

19. The Tribunal asked the applicant to confirm the evidence he had just given that he did not want anyone to know that he was in the premises where he was operating the business.  In response, the applicant said that was correct. The Tribunal then asked the applicant to confirm his evidence that he, nevertheless, kept going to those premises and, in response, the applicant again said that was correct.  The Tribunal had difficulty accepting that if the applicant did not want anyone to know that he was at his workplace, he would still keep going there for a period in which he said that people from the RSS were going there, extorting money from him and beating him.  The Tribunal asked the applicant why, in those claimed circumstances, he would still keep going to those premises.

20. In response, the applicant, somewhat indirectly, said that he had planned to come to Australia so he ‘didn’t like that’.  He then said that he was attending his business premises every day and only stopped going two days before leaving India to come to Australia.  Again, the Tribunal asked the applicant why he would do this when, on a number of occasions, these people from the RSS had gone there and beaten him.  In response, the applicant said that he was afraid that if he did not go then these people would just go to his home and, in addition, he did not want to give them the impression that he was leaving the country.

21. The Tribunal asked the applicant when he actually decided to leave India.  In response, the applicant said that he made that decision a few days after returning to his native area from West Bengal and following the first occasion on which people from the RSS came to his home and beat him.  The Tribunal had difficulty accepting the applicant’s account that, having decided to leave India at that time for his safety and when these people attacking him had located him at his home, his business premises and, on occasions, when he was riding his bike, that he would not have fled to another area to hide pending arrangements to leave India.

22. When the Tribunal put this to the applicant, he said that he thought that if he went into hiding these people would find out and they would locate and harm him.  He thought that if he just stayed in his native area at his home these people from the RSS would not hold any suspicion over him.  When put to him that, in doing so, he continually placed himself at risk of harm from these people, the applicant said that he agreed.  Earlier in his evidence at the hearing, the applicant said that after he left India his wife and children went to live in rented accommodation near his mother-in-law, in another area but in the same city.  He said that they took this step because of harassment they received from these same RSS supporters.  Even in those premises, occasionally, they were forced to stay briefly at the home of another relative because the applicant’s wife received threatening telephone calls from these RSS supporters. 

23. Further, the applicant said that after his wife and children stopped living in their marital home, RSS supporters kept going there threatening and verbally abusing his mother and  who still live there. The Tribunal asked the applicant why he did not, with or without his wife and children, live somewhere else prior to leaving India.  In response, the applicant said that if those people found out that he was in that location they would come and harm him. 

24. Overall, the Tribunal finds the applicant’s conduct in the period from returning to his native village up until leaving India to be unconvincing and highly improbable.  Even allowing for the fact that, in this period, the applicant was making arrangements to be able to leave India and would not want the people he fears to find out about that, the Tribunal still does not believe the applicant would continue to go to the premises where he was operating his business, the same location where these people from the RSS had, more than once, found and beat him.  Likewise, the same people had come to his home and beat him, including after finding out that he had gone to the police to complain about them. 

25. The applicant’s claims that he could not go into hiding in another area because the people pursuing him would locate and harm him are not believed.  Indeed, as discussed below, in 2018, the applicant did stay in two different places over a period of some 50 days and, if he could do that then, he could also have taken that step before he left India to avoid these people finding and attacking him.  Although these people made threatening telephone calls to his wife at the location to which she and her children went to live after the applicant left India, he told the Tribunal that this was an area still in city A.  The applicant could have taken the step of staying in another state pending his departure from India. The applicant’s willingness to remain in his home in his native area and continue to go to the premises where he was operating a business, from the time he decided to leave India up until just prior to leaving the country, struck the Tribunal as highly improbable and not credible.

    The applicant’s return to India in 2018

26. To the Tribunal, the applicant said that in 2018 he returned to India for approximately 50 days.  The applicant said that his mother was seriously ill and he returned to India for that reason.  When asked where he stayed on this occasion, the applicant said that he went to a hospital in another city which was approximately four hours from his native area.  He said that his  and some others took his mother from his native area to that place.  The applicant stayed at this hospital for approximately three weeks until his mother was discharged.  The applicant then stayed in a house in city A for one month before then returning to Australia.  He stayed there with his mother and his wife and children.

1. The Tribunal asked the applicant why he chose to stay in those premises in the same city in which his native area was located and from which he had fled only three years earlier to save his life.  In response, the applicant said that if people found out that he was there they would get him.  He remained there until leaving India.  When asked what he actually did in this month that he remained in these premises, the applicant said that he just stayed with family.  He never went outside as he was afraid that someone might see him.  The Tribunal asked the applicant what his purpose of being there actually was.  In response, the applicant said that he had gone to see his mother in hospital because she was very sick and he wanted to be with his family.  The applicant said that his mother had been ill prior to this occasion, but, although she had seen a doctor in his native area for that, her condition had become very serious. 

2. The Tribunal put to the applicant that it had difficulty accepting that, if he left India in fear for his life in July 2015, he would take the risk of returning there in late 2018.  In response, the applicant said that he felt that he should return in the event that something happened to his mother. He had heard that she was seriously ill.  The Tribunal put to the applicant that it had difficulty accepting that after his mother came out of hospital, he remained for a further month in the same city in which his native village was located and took the risk that the people he claims to fear might locate and harm him.

3. In response, the applicant said that in that month he never went outside the place in which he stayed. When asked why he would not choose a location away from city A and remain there with his mother and family for that further period, the applicant did not directly respond. He said that things were not like they were in the past. The RSS and BJP were now very strong and they would kill him. He then said that he could not stay elsewhere for that one month as he did not know anybody in another area. As a further reason for remaining in a location in the city in which his native village was located, the applicant said that he had to take his mother for regular check-ups. After giving that evidence, the applicant then said that he did not actually take his mother for those check-ups, but got someone else to do it for him.  When reminded that he had only just said that he needed to take his mother for regular check-ups (as a reason for remaining in that location), the applicant said that there were two or three check-ups and he got someone else to take his mother to them. 

4. The Tribunal finds the applicant’s evidence about his willingness to return to India for 50 days in 2018 unconvincing.  In July 2015 the applicant took the step of leaving his country to save his life.  He did not attempt to live in another part of India.  In his statutory declaration the applicant said that ‘the whole country’ is unsafe for him as a Muslim because there is Hindu violence in all parts of the country, against which the police and Indian government will not afford protection to him.  In those circumstances, the Tribunal does not accept that the applicant would then return to India.  The Tribunal can allow for the fact that the applicant would want to see his mother if she was seriously ill.  However, when the applicant left India he would have known that, in leaving India to save his life and seeking to permanently remain in a country of refuge, any event might occur in his absence in which his family’s well-being was put at risk.   While the applicant might understandably be concerned about that, having left the country to save his life, the Tribunal does not accept that he would then return there.

5. The Tribunal also does not accept that having stayed with his mother at a hospital where she was receiving treatment for a few weeks and, in effect, having achieved his purpose of seeing his mother in those circumstances, the applicant would then remain in India for the further month and remain in premises in the same city in which his native village is located and where the people he claims to fear are also present.  His explanations about needing to be present because his mother needed further medical check-ups are rejected.  First, the applicant said that in this month he never went outside. He then contradicted that evidence by claiming that he took his mother for those check-ups.  Then he said that in fact someone else took his mother for those check-ups. Even if those further checks were needed, in the applicant’s claimed circumstances, it is not credible that he would remain in India for a further period just for that purpose.

6. The Tribunal can also understand that the applicant would be happy to see his family again, but, he left India in July 2015 knowing that he was leaving them behind and doing so to save his life.  The Tribunal also does not accept the applicant’s submission that they were not able to stay in another location away from city A.  If the applicant was sufficiently resourced to be able to travel in and out of India and his family were able to leave their homes, including for his mother to go to hospital in another area, they would surely have been able to all meet and remain at a location away from city A.  Overall, the applicant’s return to India for 50 days, including remaining for one month in the city in which his native village and the people he fears are located, only further reflected poorly on his credibility.

7. In reaching that finding, the Tribunal also considered submissions made by the applicant dated 16 August 2019.  In these submissions, the applicant states that as his mother’s son, it was his responsibility to return to India to see her in hospital. He states that he was afraid for his safety but remained in contact with friends in Australia by telephone and always kept the address and telephone number of the Australian consulate in city A.  Again the Tribunal acknowledges the applicant’s wish to see his mother if she was seriously ill.  However, these other measures he states he took for his safety on return to India in no way overcome the Tribunal’s concern about him returning to India in his claimed circumstances and remaining there, after seeing his mother, for a further month, in the very city he fled in 2015 to save his life.

   Conclusions on credibility

8. Considered cumulatively, the concerns that the Tribunal holds about the applicant’s credibility cause the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false.  The Tribunal therefore disbelieves the applicant’s claims that, prior to 2014, Hindus in his local area harassed him causing him to cease to operate a business.  The Tribunal disbelieves the applicant’s claims that in May 2015 he was attacked by Hindus in West Bengal; that police in that area behaved adversely toward him and that, from that time in his native area, Hindus threatened him over the telephone or in person and that they attacked him.  Similarly, the Tribunal disbelieves claims that, after the applicant left India, Hindus harassed members of his family causing some of them to live in other locations.

9. In reaching its findings on credibility, the Tribunal took into consideration documents submitted by the applicant to corroborate his claims.  In this respect, with his statutory declaration the applicant attached an affidavit made on 25 August 2015 by an Indian national from the applicant’s native area who states that he knows the applicant very well.[4] This person states that the applicant was attacked in West Bengal, the police there tried to harass him and his life is at risk in India.  To the Tribunal, with his submissions of 16 August 2019, the applicant provided an affidavit from his mother made on 17 August 2019 in which she states that in the applicant’s native area Hindu extremist groups attack young Muslim men who eat beef and this will happen to the applicant if he returns to India. The applicant also enclosed an affidavit made on 16 May 2018 by his sister who repeats the applicant’s account of being attacked in West Bengal and receiving threats on return to his native area.  She also states that since the applicant left India, family members have been harassed by Hindus demanding money from them, causing them to relocate a number of times, but, the perpetrators managing to locate them and harass them again.

   [4] See folio 40 of the Department file.

10. The Tribunal has carefully considered the contents of these documents but they do not outweigh the concerns that the Tribunal holds about the applicant’s credibility which significantly discredit him as a witness.  In particular, the contents of these documents do not explain or overcome the various areas of inconsistency in the applicant’s account and those aspects of his account that are highly improbable. In addition, in the respects discussed above, the affidavit made by the applicant’s sister is inconsistent the applicant’s evidence to the Tribunal about the harm he suffered on return to his native village. As discussed above, the applicant’s sister made no mention of the claims the applicant made to the Tribunal that, in this period, he was attacked a number of times, on occasions, his injuries being so serious that he had to have medical treatment.  Accordingly, the Tribunal finds that the claims made in these documents are false and the Tribunal does not give evidentiary weight to them.

11. To the Tribunal, with his submissions of 16 August 2019, the applicant also submitted a certificate from a doctor in India, issued on 1 September 2018, in which the doctor states that the applicant’s mother suffers from an acute [illness] and she is in a serious condition.  This document supports the applicant’s claim that his mother was seriously ill at the time that he returned to India, but, that does not explain or excuse the areas of inconsistency in the applicant’s evidence as well as those aspects of his account that the Tribunal finds to be highly improbable. Perhaps the applicant’s mother was seriously ill at the time that the applicant returned to India, but, that does not demonstrate that the account of events on which the applicant’s protection claims are based is true.

12. With his statutory declaration, the applicant, as stated above, attached documents relating to the business he was operating in India. He also attached his school leaving certificate. These documents do no more than indicate that the applicant was operating a business in India and finished school.  They do not otherwise corroborate his claims to have suffered harm from Hindus in India.  The Tribunal remains of the view that his claims about that are false.  For the reasons given above, the applicant has given inconsistent evidence about operating a business in India.  Accordingly, the Tribunal finds that it has no credible evidence about the growth or success of that business or the period over which he operated it. 

13. Because the applicant is not a witness of truth, the Tribunal finds that it has no credible evidence as to why he left India in July 2015. The Tribunal has no credible evidence as to why the applicant went back to India in 2018 and why he did not remain there. The Tribunal has no credible evidence before it as to why the applicant remains in Australia and why he does not want to return to India.  There is no credible evidence before the Tribunal that the applicant suffered harm of any kind in India and there is no credible evidence before the Tribunal that any member of his family has suffered harm.

14. On that basis, the Tribunal turned to an assessment of the risk of the applicant suffering serious harm in India on the ground of his religion.  In its ‘Country Information Report India’, dated 17 October 2018, DFAT states that Muslims comprise approximately 14.2 % of the population of India (1.21 billion), the Tribunal estimating on that basis that the Muslim population would be approximately 140 million.[5] DFAT discusses incidents of violence and riots involving harm to Muslims which the Tribunal understands to be sporadic and isolated.[6]  DFAT also refers to ‘occasional’ attacks, mostly against Muslims and Dalits, by (Hindu) ‘vigilante cow protection groups’.[7]  DFAT then provides the following assessment related to the risk of Muslims being harmed in India:

    ‘DFAT assesses that Muslims face a low risk of societal discrimination and violence. Incidents of communal violence in the mid-2000s have not been repeated on a large scale in recent years. Muslims suspected of cow butchery [in certain states] may be targeted, however incidents while widely reported have not affected the day-to-day lives of most Muslims. DFAT assesses that Muslims in other parts of India face a low level of official and societal discrimination.’[8]

    [5] See DFAT, Country Information Report India, 17 October 2018, 2.4, 3.7.

    [6] See DFAT, Country Information Report India, 17 October 2018.  At 3.8 DFAT states:

    ‘Since independence, instances of communal tension involving Muslims have occasionally led to riots. Recent large-scale riots occurred in West Bengal in July 2017. Particularly violent unrest occurred in Muzaffarnagar in Uttar Pradesh in August and September 2013, in which 60 people were killed and 90 people were injured. The violence displaced over 50,000 people. Serious riots previously occurred in the western state of Gujarat during 2002 following a fire on a train, which local Muslims were accused of starting, and which caused the deaths of Hindu pilgrims. This incident led to a week of violence in various locations across Gujarat. A government report in 2005 stated that 790 Muslims and 254 Hindus were killed in the riots, with 223 more people reported missing and more than 2,500 injured.’

    Consistent with those statements, see also United Kingdom Home Office (‘the UKHO’), Country Policy and Information Note India: Religious Minorities, Version 2.0, May 2018.  At 2.3.7, the UKHO states as follows:

    ‘Sporadic outbreaks of large scale communal violence against religious minorities has occurred over the years ….  Muslims (Uttar Pradesh in 2013, and Gujarat in 2002) and Sikhs (Delhi in 1984). Smaller-scale Hindu nationalist abuses against religious minorities tend to occur most frequently in the Indian states of Uttar Pradesh, Andhra Pradesh, Bihar, Chhattisgarh, Gujarat, Odisha, Karnataka, Madhya Pradesh, Maharashtra, and Rajasthan. Several hundred cases of communal violence were recorded in 2016 and 2017. However, with a population of around 200 million religious minority members, the low number of incidents relative to the size of the population means it is not reasonably likely that a person could establish a real risk’.

    [7] See DFAT, Country Information Report India, 17 October 2018.  At 3.9, DFAT states:

    ‘Violent attacks by vigilante cow protection groups, mostly against Muslims and Dalits, occasionally occur. Incidents have involved killings, mob violence, assaults and intimidation. The states affected included Madhya Pradesh, Haryana, Jharkhand, Gujarat and Uttar Pradesh. Vigilante cow protection groups fatally attacked at least 11 Muslim men and injured many others in 2017. Human rights groups criticised Prime Minister Modi and members of the ruling Bharatiya Janata Party (BJP) for failing to condemn such attacks, which critics argued amounted to implicit support. Police have arrested some alleged perpetrators, but no convictions have been reported.’

    [8] See DFAT, Country Information Report India, 17 October 2018, 3.10.  Consistent with this assessment, see also United Kingdom Home Office (‘the UKHO’), Country Policy and Information Note India: Religious Minorities, Version 2.0, May 2018.  At 2.3.5, the UKHO states:

15. The Tribunal infers from this information that while there have been attacks against Muslims, when considered in the context of the size of the Muslim population in India, these attacks do not occur on a scale on which the Tribunal could find that there is a real chance that the applicant will suffer serious harm on this ground.  The Tribunal also infers that while Muslims may encounter both official and societal discrimination, this is low level and not to a degree that equates with a real chance of the applicant suffering serious harm on that basis.  Overall, the Tribunal infers that the risk of the applicant suffering serious harm in India on the ground of his religion is remote.

16. At the hearing, the Tribunal discussed this country information with the applicant and put to him the inferences which the Tribunal draws from that information.  In response, the applicant said that if only a small number of people are attacked the remainder of the community lives in fear. He again referred to an incident in which a Muslim near his local area was killed by Hindus for eating beef.  He then said that all incidents were not reported in the media and media coverage was restricted.

17. The Tribunal rejects that latter submission because it is clear from the country information relied on by the Tribunal as well as the numerous media articles the applicant enclosed with his submissions of 16 August 2019, that incidents of harm against Muslims are reported.  The Tribunal acknowledges the applicant’s claims about Muslims being harmed by Hindus in relation to the farming, selling and consumption of beef.  However, available country information indicates that these incidents are isolated and when considered in the context of the size of the Muslim population in India, the risk of the applicant suffering serious harm on this basis is remote.

18. Although the applicant claims that, even if the number of victims of attacks on Muslims are few, the Muslim population will still be in fear.  The Tribunal acknowledges that submission but the Tribunal still finds the risk of the applicant suffering serious harm because he is a Muslim is remote.  The Tribunal has no credible evidence that this applicant or any member of his family suffered harm in India on the basis of religion.  This finding includes harm in the form of being attacked or in the form of discrimination. There is no credible evidence before the Tribunal that the applicant’s family in India have suffered harm since his departure in 2015.  The Tribunal finds that whatever apprehension the applicant may feel, on return to India he will be able to resume his life there, including, if he seeks to, operating a business as he appears to have done before he left India.

19. In his submissions of 16 August 2019, the applicant broadly repeats the account of events on which his protection claims are based including his reasons for returning to India in 2018.  For the reasons given above, the Tribunal finds that the account of events on which the applicant’s protection claims are based, including his evidence about returning to India in 2018, is false.  The applicant complained that country information referred to in the decision of the delegate was out of date.  The Tribunal acknowledges that complaint but considers the country information relied on in this decision to be sufficiently recent so as to enable the Tribunal to accurately assess the risk of the applicant suffering serious harm.

20. The applicant submitted that since the election of the current Prime Minister and since that person’s re-election, the maltreatment of Muslims by Hindus and the failure of the Indian government and authorities to provide protection, has worsened significantly.  The applicant submitted that Hindu extremists attacked Muslims who ate beef, the applicant referring to an incident near his native area where a Muslim man was killed for that reason.  The applicant referred to the death of a Muslim man killed by Hindus who were acquitted by an Indian court.  He claimed that Muslims were being forced to chant Hindu slogans and once Hindu extremists find out that someone is Muslim they humiliate them and try to make them modify their beliefs.

1. The applicant made similar claims at the Tribunal hearing and in his statutory declaration.  In their affidavits, the applicant’s mother and his sister made similar claims and his sister stated that Muslim businessmen in city A get murdered.  With his submissions of 16 August 2019, the applicant submitted country information comprising reports from the media asserting that under the rule of the current Prime Minister attacks against Muslims had risen.  These reports make particular mention of instances where Muslims who eat beef, but, particularly farmers of cattle and those who sell beef, have been harmed by those referred to in these reports as Hindu ‘cow vigilantes’.  There is a report of a man being forced to chant Hindu slogans and dying from the beatings he received.

2. The Tribunal has carefully considered these submissions and the country information provided with them.  If anything the submissions and country information are consistent with the position presented by the sources relied on by the Tribunal in this decision.  The Tribunal acknowledges attacks on Muslims, in particular in relation to the consumption, farming or selling of beef. However, notwithstanding the applicant’s claim that the maltreatment of Muslims has increased under the rule of the current Prime Minister, the Tribunal was not persuaded to depart from its position that the risk of the applicant suffering serious harm in India on the ground of his religion is remote.  Based on the country information relied on in this decision, the maltreatment of Muslims in India does not take place on a scale that, considered in the context of the size of the Muslim population, equates with a real chance of the applicant suffering serious harm.

3. The Tribunal acknowledges the submissions about the situation for Muslims becoming worse since the re-election of the current Prime Minister earlier this year, but the country information submitted by the applicant to support that assertion goes no further than indicating the continuation of isolated attacks on Muslims.  The Tribunal is not satisfied that this continued pattern takes place or will take place in the reasonable future on a scale on which the Tribunal could find that there is a real chance that the applicant will suffer serious harm.

4. With respect to the claim made by the applicant’s sister in her affidavit about Muslim businessmen being murdered in city A, the Tribunal is willing to accept that the applicant operated a business in India, but, there is no credible evidence about over what period he did this or the success or growth of that business.  The Tribunal repeats its finding that it has no credible evidence that the applicant suffered harm in India.  The Tribunal does not see any elevated risk to this applicant of suffering harm as a Muslim businessman.  Certainly, based on country information relied on in this decision, the Tribunal finds that there is not a real chance that the applicant will suffer serious harm in India as a Muslim businessman.

5. At the Tribunal hearing, the representative made oral submissions and they were identical to the submissions made by the applicant about Muslims suffering harm in India.  Indeed, when referring to Muslims suffering harm in India, the representative referred to what the applicant told him about that. The representative added that some attacks had been recorded on video.  Even if that is so, the Tribunal has considered the submissions and country information put to it by the applicant about Muslims suffering harm in India. For the reasons given above, the Tribunal finds that there is not a real chance that the applicant will suffer serious harm in India on the ground of his religion (or on any ground).

6. For the reasons given above, the Tribunal finds that there is not a real chance that the applicant will suffer serious harm in India. He does not hold a well-founded fear of persecution within the meaning of s5J(1) of the Act.  For the same reasons, the Tribunal finds that he does not meet the complimentary protection criterion.

   CONCLUSIONS

7. 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).

8. 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).

9. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

   DECISION

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

    Paul Millar
    Member

    
    
    

‘Religious minorities and members of Scheduled Castes may experience some local state discrimination, including police hostility and harassment. However, it is unlikely that this would, in general, be sufficiently serious by nature and repetition that would cause them to face a real risk of persecution or serious harm.’

At 2.3.13, the UKHO states:

‘Religious minorities live throughout India and information on the scale of the problem is vague, but Hindu nationalists are a small sub-set of the population and many issues in themselves would not give rise to a well founded fear of persecution. Whilst outbreaks of communal violence do occur, in general, religious minorities, those in interfaith marriages, and members of Scheduled Castes, although sometimes subject to discrimination and localised harassment, are in general not subject to treatment which is sufficiently serious by nature and repetition to be persecutory or cause serious harm.’