1611459 (Refugee)

1611459 (Refugee) [2016] AATA 4527 (4 October 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division

CASE NUMBER:  1611459
COUNTRY OF REFERENCE:                  India
MEMBER:James Silva
DATE:4 October 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 04 October 2016 at 11:44am
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

The applicant is a Tamil man in his [age range] from Tamil Nadu, India.
The applicant arrived in Australia [in] April 2015, as the holder of a [temporary] visa. Department of Immigration and Border Protection (‘Department’) officers refused the applicant immigration clearance, and cancelled his [temporary] visa. He was detained under s.189(1) of the Migration Act 1958 (the Act). He remains in Immigration detention.
The applicant applied for a Temporary Protection (Class XD) visa [in] July 2015. He attended two protection visa interviews, [in] September 2015 and [in] June 2016.
[In] July 2016, the delegate refused the application pursuant to s.65 of the Act.
This is an application for review of that decision. The applicant provided a copy of the delegate’s decision record together with the application. The applicant appeared before the Tribunal on 17 August 2016, to give evidence and present arguments. The Tribunal hearing was conducted via video link with [an] Immigration Detention Centre, [in state]. An interpreter in the Tamil and English languages was present in the Tribunal’s Sydney office. The applicant does not have a representative in this review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection.
The relevant law is set out in Attachment A.
CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS
Background
The applicant is from Tamil Nadu. He is [an age] year old man of Tamil ethnicity, and a practicing Christian. He claims to be have been born in [District 1][1], Sri Lanka.
[1] This place was transcribed as [variation of District 1], and the delegate concluded after a Google search that there is no such place. The transliteration of Tamil into English results in spelling variations; the Tribunal is satisfied, having heard the applicant pronounce the place at the Tribunal hearing, that he was in fact referring to [District 1].
The applicant claims that his parents moved to India when he was about [age], and his father left the family shortly afterwards. The applicant claims to not know his parents’ whereabouts. He last spoke with his mother when he was about [age] years old. However, his mother and a worker at the orphanage told him his father went to [City 1 in Australia], and the applicant believes he now lives there.
The applicant claims to have lived in a refugee camp in [District 2], [in] Tamil Nadu until the age of [age]. His mother had him admitted to the [Agency 1] Children’s Home in [Village 1][2] in [year], as she was poor and mentally unstable, and unable to raise him as a single mother.
[2] [Deleted.]
The applicant lived at the [Agency 1] home in [Village 1] and later in [an Agency 1] home in [District 2], attending local schools to complete his Higher School Certificate, and later achieving [two specific qualifications]. From 2001, he was [an occupation 1] in a [Agency 1 site] in [Village 2], also in [District 2]. He completed a [course] by distance education in 2004.
The applicant is married to an Indian citizen, and the couple have [number] children, [age and gender specified]. The family is currently living in Chennai.
The applicant obtained his Indian passport in [2009]. He indicated that he first visited [Country 1] in August 2013, returning a month later. He returned there in February 2014, working as [an occupation 2] for [products], up to March 2015. The applicant was in India between September 2013 and February 2014, and returned there briefly as well in March 2015, before his travel to Australia.
Claims
The applicant claims to fear harm if he returns to India based on the following:
a)An influential and wealthy politician associated alleges that the applicant is responsible for the [accidental] death of his son, for political and religious reasons. He has vowed to kill the applicant.
b)The applicant faces discrimination for some or all of the following reasons: (i) as an orphan, or person whose father is unknown; (ii) as a member of the lower Nadar caste; (iii) as a Sri Lankan; and (iv) as a Christian.
c)The applicant faces discrimination as a stateless person.
Evidence
The evidence before the Tribunal includes the following relevant material: -
§DIBP Inspectors Report with interview notes following the applicant’s arrival at [Airport in City 1] [in] April 2015
§The applicant’s protection visa application form completed and signed [in] July 2015
-This includes the applicant’s handwritten reasons for claiming protection, supplementary typed notes and a further page entitled ‘my life history’
§An IMA PV Identity Assessment Form dated [in] August 2015
§The applicant’s further statement of [September] 2015
§Correspondence and documents (copies) relating to the applicant’s identity and nationality/statelessness:
-Photocopy of the applicant’s Indian passport, issued [in] 2009
-[Agency 1] identity sheet, dated [date], recording the applicant’s admission to the children’s home as the son of a Sri Lankan refugee mother
-Various cards, including [Indian] driver’s licence, Election Commission of India ID card, Indian Income Tax Department card, [Country 1] resident identity card and Ministry of Health card, and several bank cards.
-[Agency 2] Examinations certificate of [December] 1997, from the [Agency 2]
-A letter of appointment from [Agency 1], dated [in] May 2001, appointing the applicant as [Position 1] at the [Agency 1] Boy’s Home in [Village 2]
-[An Agency 1] Diploma certificate dated [May] 2001
-[His] University statement of marks dated [in] July 2004, and [tertiary course] certificate
-Certificate of marriage
-Wife’s Electoral Commission of India identity card and school transfer certificate (barely legible)
-[Birth certificates for his children]
-[Deleted.]
§Copies of on-line articles:
-Articles relating to increasing anti-Christian violence in India, from the period between 1999 and 2015
-One article, from Charisma News[3], describes the brutal murder of a 7 year old Christian boy whose body was retrieved from a pond in northern India
§The Department file refers to a first Protection visa interview held [in] September 2015. There are no recording or notes of this interview on file.
§The applicant’s statutory declaration of [May] 2016
§Audio recording of the applicant’s second Protection visa interview held [in] June 2016, which the Tribunal has listened to
§The delegate’s decision record [in] July 2016. The applicant provided a copy of this to the Tribunal. It in turn refers to the applicant’s oral and written statements made to Department officials.
§The applicant submitted to the Tribunal correspondence between him and [Agency 3] regarding lost property. He claims that personal materials have gone missing, including the originals of two school certificates (he provided copies of these) and two newspaper clippings that ‘prove’ his case for protection (there is no copy of these).
§Written pre-hearing submission addressing concerns in the delegate’s decision record. In this, he gave the Tribunal with his [Social media] account details and password, inviting it to log on his private page.
§The applicant attended a Tribunal hearing on 17 August 2016.
§The applicant wrote to the Tribunal on 18 August 2016, requesting the Member to ask the Department to find and provide him with the missing original school certificates as soon as possible, or ‘connect me with the community immediately’ (presumably, release him from immigration detention). He states that he cannot survive without the original school certificates.
[3] Charisma News on-line, 7-Year-Old Boy in India Tortured, Murdered for Christian Faith, 11/27/2013
Assessment of claims: credibility
The Tribunal is mindful of the applicant’s prolonged period in detention, since his arrival at [City 1] Airport in April 2015. He claims that this has hampered his ability to obtain supporting documentation for his case. He also provided copies of correspondence with [Agency 3] in which he complains that some documents that were in their safekeeping have gone missing. These are the original of school certificates (for which he showed copies) and newspaper articles that relate to his protection claims, namely the [accidental death] of the local schoolboy (for which he has no copies).
The Tribunal also takes into account that the applicant is unrepresented. The applicant has a [specified qualification], and demonstrated his fluency in English. Nonetheless, he appeared to have some difficulty grasping some procedural and legal issues (such as the concepts of nationality and statelessness) and the Tribunal has made allowance for this.
The applicant’s stated reasons for coming to Australia raise some broad questions about his subsequent protection claims, and his credibility. He claims to have heard from his mother (whom he last spoke to when he was [age] years old) and a caregiver at the orphanage that his father went to [City 1]; indeed, there is even mention of this in the (purported) [Agency 1] admission sheet filled out on [a date] which notes: ‘The father of the boy deserted the mother doubting that she might also have had sexual relationship with others. It seems he is in [City 1] now.’ At the Tribunal hearing, the applicant initially appeared to state that he got some information from Tamil churches in [City 1] that his father was living there. When pressed for details, he clarified that he had not in fact approached any churches yet, but intended to do so. (The applicant and the interpreter agreed that there may have been an interpreting error if there was any suggestion that he had already made enquiries.) In any event, the applicant said that he had entered Australian on a visa fraudulently obtained on the pretext of attending [an international event]. He said that his real intention was to visit Tamil churches in [City 1] to find his father, even though he had not made enquiries so far. In response to the Tribunal’s surprise, the applicant said that he sought assistance from [a welfare agency] to find his father, in about May 2015, but he has not provided any further details or evidence. The Tribunal has concerns that the applicant’s evidence about his nationality and citizenship, and the validity of his documents, changed according to the applicant’s perception of what would be to his advantage at a given point in time.
Receiving country
The applicant’s nationality or statelessness is a central issue in his protection claims. For the reasons that follow, the Tribunal finds that the applicant is an Indian national, and not a stateless person as claimed.
The applicant’s claims: The applicant has consistently claimed that he was born in [District 1], in northern Sri Lanka; that his Sri Lankan parents moved to India when he was about [age] old; that his father abandoned the applicant and his mother; and that, when he was [age] years old, his mother handed him over to the [Agency 1] in [Village 1], Tamil Nadu, as she was poor and unable to cope mentally with being a single mother.
The applicant’s current position is that he is a stateless person. He claims that he holds an Indian passport only on the basis of bogus documents that he submitted; and that he does not currently have Sri Lankan citizenship. As noted below, however, he has changed his claims in relation to this over time.
Relevant laws: The Tribunal is required to determine whether the applicant is a national of India and/or Sri Lanka solely by reference to the law of the relevant country.[4]
[4] S.5(1)(a) of the Act.
The Indian Citizenship Act, 1955 provides that Indian citizenship may be acquired by birth, descent, registration or naturalisation. Some of the provisions that are potentially relevant to the applicant’s circumstances are:
§ Citizenship by birth for persons born in India between 26 January 1950 and 1 July 1987[5]
§ Citizenship by descent for persons born outside India between 26 January 1950 and 10 December 1992, provided the person’s father was an Indian citizen at the time of birth (provided, if the person’s father was an Indian citizen by descent, the birth was registered at an Indian consulate within one year)[6]
[5] India, The Citizenship Act, 1955, Article 3(1)(a):
[6] India, The Citizenship Act, 1955, Article 4(1)(a)
The Sri Lankan 1948 Ceylon Citizenship provided citizenship by descent to people born after 15 November 1948, provided the person’s father was born in Ceylon, or his/her paternal grandfather and paternal grandfather were born in Ceylon. It provided citizenship by registration to people who met other requirements relating to age, health, descent and residency.
India and Sri Lanka have reached a number of bilateral agreements and implemented these domestically, relating to the statelessness of certain Tamils. These are mainly the descendants of Indian Tamils brought to Sri Lanka by the British between 1820 and 1840 to work on the tea and coffee plantations, the so-called ‘Hill Tamils’. According to UNHCR[7]:
[U]nder a series of bilateral agreements between India and Sri Lanka in 1964 and 1974, Sri Lanka agreed to provide citizenship to a total of 375,000 Indian Tamils and India agreed to provide citizenship and repatriate 600,000 Hill Tamils. A total of 506,000 people applied for Indian Citizenship and 470,000 applied for Sri Lankan citizenship under these agreements.
The process of granting Indian citizenship was very slow and in 1982, 86,000 applications for citizenship to the Indian High Commission were still pending. A further 90,000 people who had been issued with Indian passports were still remaining in Sri Lanka. At this time, India advised Sri Lanka that it no longer considered the 1964 and 1974 agreements to be binding as the implementation period had expired. Sri Lanka disputed this claim.
[7] UNHCR on-line, Statelessness in Sri Lanka,
Factual Assessment: The applicant has made inconsistent claims regarding his nationality or statelessness. These vary from his claims at the primary stage to have Indian nationality, and that his Indian passport was validly issued; to his most recent position that he is stateless, and that he obtained his Indian passport only on the basis of bogus documents (such as a nativity certificate) that local officials issued corruptly.
Indian citizenship: There is very strong evidence to indicate that the applicant is an Indian citizen. He holds an Indian passport, which he has used to depart and enter the country on several occasions. He claims that it is a genuine document, and there is no information to suggest otherwise. Prior to his travel to Australia, the applicant used this passport for return travel to [Country 1] twice. As the United Nations High Commissioner for Refugees (UNHCR) notes, ‘possession of ... a passport creates a prima facie presumption that the holder is a national of the country of issue, unless the passport itself states otherwise’.[8]
[8] UNHCR, Handbook, above at [93]
The applicant has indicated on several occasions that he is an Indian citizen:
§ In his protection visa application ([in] July 2015), the applicant indicated that he was stateless at birth, but acquired Indian citizenship on [date] (the date of his passport issuance); that his mother has Sri Lankan citizenship; and that his father is Australian. (This appears to derive from the applicant’s belief that his father has travelled to and settled in [Australia], although he has no further details.) The attached ‘life history’ states: ‘I took the Indian passport to become proper Indian citizen through an agent because I had no one or no legal rights in India or no permanent residing place.’
§ [In] September 2015, he wrote to a Department officer in the following terms:
‘Though I have all the legal rights and citizenship in India, mentally I feel my passport is just a book which enables me to live in India. […] Anyway I regret you that I mentioned as a stateless person in my application’.
§ [In] May 2016, the applicant wrote in a statutory declaration: ‘I am [an age] year old citizen of India. I also hold citizenship of Sri Lanka.’
Despite these statements, the applicant claims that he has been a stateless person throughout, and that he managed to obtain his Indian passport only through the presentation of bogus documents.
Country information: The Department of Foreign Affairs and Trade (DFAT) describes the situation for displaced or stateless Sri Lankan Tamils in India as follows:[9]
Approximately 104,000 Sri Lankan Tamils reside in the southern state of Tamil Nadu, the majority of whom fled from Sri Lanka following the outbreak of conflict in the mid-1980s (or are the descendants of those who did so). The majority (around 70,000) reside within one of approximately 110 Tamil Nadu Government-administered camps located throughout the state, with the remainder residing freely outside the camps. A small undisclosed number with strong connections to the primary Sri Lankan Tamil rebel group, the Liberation Tigers of Tamil Eelam (LTTE), are detained in two “Special Camps”, and are subject to strict monitoring. The Central Government spends the equivalent of US$150 million annually on the maintenance of the camp residents, including on their education, healthcare, security, livelihood, social security and amenities. The Tamil Nadu Government provides further amenities such as free household items, including televisions and cooking equipment. Sri Lankan Tamils have limited work and education rights in India, and do not have a pathway to Indian citizenship.
[9] DFAT Country Information Report India, 15 July 2015
The July 2015 DFAT report also addresses the prevalence of document fraud. It observes that as a rule, Indian passports are difficult to forge, but that the Indian authorities can and do revoke passports based on false information. It cites the specific case of Sri Lankan nationals:
Although there are no classes of documents which are not open to fraud, some types may be more reliable than others. Passports are generally relatively more difficult to forge than other types of identity documents. However, genuine passports can be issued using fraudulent information. For example, in May 2013, India’s Ministry of External Affairs revoked 127 passports issued to Sri Lankan nationals residing in Tamil Nadu. The passports were issued on the basis of false supporting documents.
Against this background, a critical issue is whether the Tribunal is satisfied that the applicant’s Indian passport was issued on the basis of fraudulent documents, indicating that he is a (stateless) Sri Lankan without Indian citizenship.

Tribunal assessment: Although the applicant has consistently claimed to have been born in Sri Lanka, he has no birth certificate or other documentation; he relies solely on statements from his mother, whom he has not seen for more than [20] years, and [Agency 1] staff.
In the Tribunal’s view, the applicant’s evidence about his place of birth is weak and inconclusive.
§ The applicant presented a copy of [an Agency 1] ‘identity sheet’, which in effect admitted the applicant to the [Agency 1] children’s home, dated [date]. It describes the applicant as a ‘Christian Sri Lankan refugee’ and his mother also as such. The Tribunal has some reservations about the provenance and genuineness of this document, given the applicant’s claims that he has relied on agents to obtain false documents in the past. Nonetheless, to take it at face value, it is silent on the applicant’s place of birth or his father’s nationality.
§ The applicant provided to the Tribunal his [Social media] name and logon details, for the (stated) purpose of allowing the Tribunal to check his postings and confirm his association with the orphanage. At the hearing, the applicant said he was at the delegate doubting the genuineness of the [Agency 1] ‘identity sheet’ and his long-term association with the children’s home; he authorised the Tribunal to access his [Social media] account to confirm these claims directly. In the event, the Tribunal is prepared to accept the [Agency 1] ‘identity sheet’ at face value, although it considers that it is of limited relevance in assessing the applicant’s claimed statelessness. The applicant also said that his [Social media] account does not demonstrate any other aspect of claims, such as his statelessness. In these circumstances, the Tribunal decided not to log onto the account.
§ The applicant presented an ‘appointment order’ dated [in] May 2001, in which [Agency 1] appointed him to the position of a [Position 1]. This letter refers to the name of the applicant’s father, and gives an address in [District 2].
§ Even if the Tribunal were to take these documents at face value, they do not indicate the applicant’s place of birth, his father’s nationality or any of the other factors that could establish whether or not he was eligible for Indian nationality.
The applicant claims that he relied on bogus documents to obtain his Indian passport, and that it does not resolve his claimed statelessness.
The applicant provided some information about the process by which he obtained his Indian passport. In each account, he stated that he obtained the passport in 2009, using an agent in his wife’s local area. A critical document that he relied on was a ‘nativity certificate’ issued by a local official in his wife’s area. Country information indicates that the nativity certificate is a document issued by State governments certifying the Indian origin of an applicant who has ties with a particular state, such as parents or grandparents.
In his statement of [September] 2015, the applicant described the documentation he provided to obtain the passport as follows:
§ First, he obtained a letter from the orphanage (where he had lived and studied since the age of [age]), and submitted this together with his school certificates to the tahsildar (local government official) in his wife’s home area, in Chennai. This official in turn issued a ‘nativity certificate’.
§ Then, he submitted the nativity certificate to the Indian passport office (presumably through his agent), together with other proof of identity: a life insurance policy, long-term savings bank account opened while he was at the orphanage, school certificates and driver’s licence.
§ The passport authorities made enquiries at the Chennai address (where the applicant used to stay during his holidays), the orphanage and with the local police. These all confirmed the information in the application, and the passport was issued.
At his Department interviews[10], the applicant stated that the Indian agent (who helped him obtain the passport) recommended to him that he should record his place of birth on his documentation as Tamil Nadu, rather than Sri Lanka, as the Indian authorities would otherwise reject his passport application. In the Tribunal’s view (and as noted in the delegate’s decision record), there is nothing untoward about the applicant’s use of an agent. As noted elsewhere in this decision, the applicant’s place of birth does not appear to be documented, and by his own account, the applicant knows about it only on the basis of what his mother told him. The Tribunal therefore considers the applicant’s evidence both about his place of birth, and what his agent did or did not say to him, to be inconclusive.
[10] As noted in the delegate’s decision, attached to the review application form
The applicant told the Tribunal that he provided some genuine documents with his passport application (such as the letter from the orphanage, school certificate, driver’s licence and the insurance policy) However, the agent bribed the tahsildar for the issuance of the nativity certificate and obtained a false ration card that had to accompany the passport application.
Asked to explain the inconsistent information he has provided over time, and in particular his past statements that he has Indian citizenship, the applicant said that the truth is that he does not have ‘proper citizenship’. He volunteered that he acted on the advice of a migration agent in [City 1] when he had previously stated that he has Indian citizenship, and that the passport is genuine – this person had told him he must provide evidence of his nationality or citizenship. The applicant told the Tribunal that he did not exactly lie about his citizenship or documentation, but he had simply not provided all the details.
§ The applicant appears to be alluding to the Department delegate’s advice[11] that the Minister must refuse to grant him a protection visa if he produces a bogus document, including as evidence of his identity, nationality or citizenship, unless there is a reasonable explanation: s.91W(1) and s.91WA of the Act.
§ In other words, he now appears to be claiming that he gave failed to state that his Indian passport was based on bogus documentation, either because he did not understand and/or his agent did not advise him that he might have a reasonable explanation (for instance, if he is stateless); or because he did not think that he could persuade the delegate as to the ‘reasonableness’ of that as an explanation.
[11] This is found in the letter dated [July 2015]; although the applicant provided further documents in response to the Department’s letter of [September] 2015, this does not appear on the Department file.
In relation to the Tribunal’s most recent claim that he is not a ‘proper citizen’ and that his passport was issued on the basis of bogus documents (for instance, the nativity certificate and/or a ration card), the Tribunal notes that the nativity certificate is ‘a document issued by State Governments in India certifying the Indian origin of an applicant who is or whose relations such as parents/grandparents etc lived in that particular state’.[12] A person applying for a card submits documents that show the appropriate relationship, which may include details of ancestral properties that may have existed, such as a previous home; details of a school college, university where an ancestor studied, names and particulars of other relatives who could vouch for the accuracy of the statements made on the application form; other documentary evidence; details of ancestors’ departure mode from India (to help the authorities trace them through their past departure); and other information or documentation. In other words, the purpose of the nativity certificate is to assist those people who do not have a birth certificate or related papers to demonstrate that they are persons of Indian origin and, thereby satisfy the documentary requirements for Indian citizenship. This does not appear to be a prescriptive list. Similarly, the Tribunal does not have before it any information indicating that the presentation of a Tamil Nadu ration card was mandatory for the issuance of a passport in that state, although it was one acceptable means of identification when lodging an application for a passport.
[12] NRI Information on-line, ‘Proof of Indian Origin when proper documents not available’:
Country information indicates that document fraud is a significant problem in India. Ration cards are one area that are subject to fraudulent practices, notoriously. Some sources suggest that nativity certificates are also issued illegally: ‘Tahsildars in many areas issue such nativity certificates. At times such certificates are suspected of being obtained inappropriately and those applying for a nativity certificate for the purpose of registering for OCI or obtaining a PIO card, should make sure they get a nativity certificate through the right channels and signed by the appropriate acceptable authority.’[13]
[13] Ibid,
In the present case, the applicant provided, in addition to his Indian passport (which, as noted above, he claims was issued on the basis of bogus documents), a number of other documents and cards, such as [an Indian] driver’s licence, Electoral Commission of India identity card, and a Government of India Income Tax Department card. For the main part, these are undated. These, together with the documents from [Agency 1] and the applicant’s academic record, show that the applicant has been able to demonstrate his Indian origins and his entitlement to Indian citizenship, even if some aspects of his background, such as his exact place of birth or his father’s current whereabouts might be undocumented or unknown. In these circumstances, and given the Tribunal’s concern that the applicant has recently advanced the claim to be stateless in the hope of bolstering his protection claims, the Tribunal is not satisfied that he obtained his Indian passport on the basis of bogus documents.
Having regard to all of the above, the Tribunal finds that the applicant is an Indian citizen in accordance with Indian law.
Sri Lankan citizenship: Although the applicant wrote in his statutory declaration of [May] 2016 that he also holds Sri Lankan citizenship, he did not adhere to this claim. Indeed, it does not sit well with his other statements, namely that he does not have Indian citizenship, and is therefore stateless.
There is no persuasive evidence that the applicant meets the requirements for citizenship set out in the 1948 Ceylon Citizenship Act. First, his claim to have been born in [District 1] appears to be both undocumented and uncertain. Second, Sri Lankan law provides for citizenship on the basis of ancestry – namely the birthplace of one’s father and/or paternal grandfather – or on the basis of residency and certain other criteria. In relation to the former option, it appears that the applicant neither has the necessary information to assert that he is a Sri Lankan citizen by ancestry, nor can he demonstrate it factually. The Tribunal therefore finds that he is a not a Sri Lankan national.
Death threats from a BJP politician
The applicant claims to fear that a politician from the pro-Hindu ruling Bharatiya Janata Party (BJP) is threatening to kill him following the accidental [death] of the politician’s son.
The applicant claims that on [a date in] July 2013, two [boys] who were [his clients] skipped school and went [to a location].
§ The two boys enticed another boy, [Boy 1], to accompany them. [Boy 1] fell [at the venue] and [died]. He was the son of [Politician 1], a ‘leading BJP politician’ and leader of the Hindu group ‘[named]’.
§ The police investigated the incident, including interviewing the applicant. They concluded that the [death] was an accident, and took no further action.
§ [Politician 1] did not accept the outcome of the police enquiry. He contends that the applicant sent the two boys to lure his son to the [venue], with a view to having him [fall]. He believes that the applicant was motivated by religious and/or political reasons, as he is a Christian opposed to Hindus and the pro-Hindu BJP and lobby groups.
The applicant spoke about this in some detail at his Protection visa interviews and at the Tribunal hearing.
The Tribunal has a number of concerns with this claim and the supporting evidence:
§ Despite the gravity of this claim, the applicant mentioned it at the Tribunal hearing only after first explaining that he came to Australia in the hope of resolving his statelessness and also to look for his father.
§ The applicant had limited information about [Politician 1], his alleged persecutor. In his protection visa application, he described him as a ‘leading BJP politician of [a] region having good influence and access throughout India’. Pressed for details at the Tribunal hearing, he said that he is not actually a politician or a member of parliament, but rather a close associate and a right hand man of BJP politician [Politician 2], who is from [District 2] and is currently the [Senior Official 1]. He said that [Politician 1] is involved in various criminal and fraudulent activities, such as [specified activities], in close association with [Politician 2]. He said that he would look for any on-line references to this person. The Tribunal has not received any further material since the hearing. The applicant’s changeable evidence as to [Politician 1’s] exact role and profile casts some doubt on whether this person is, in fact, seeking to seriously or significantly harm him.
§ The applicant claims that he had a press clipping about the incident from [a named newspaper] which [Agency 3] had taken, and which is now subject to a complaint and ongoing investigation. (He provided copies of correspondence with [Agency 3] regarding his request for this.) He believed that most of the [local newspapers] covered the incident. Although the applicant kept copies of his other lost documents (his school certificates) and provided a newspaper report on the murder of a Christian boy in northern India, he indicated only vaguely that he would look to see whether he could obtain further copies of the reports on this incident. To date, the Tribunal has received no further material.
§ Asked for details of the press report on [Boy 1’s] death, and whether they mentioned any possible political or religious angle, the applicant replied vaguely that it stated that the police investigation was ongoing, including into the suspected involvement of people at [his workplace] (in other words, into him [providing services to] the two boys who were with [Boy 1]).
§ The Tribunal also questioned whether there had been any national coverage of the incident, particularly if, as he claimed, there was a tentative link with a [Senior Official 1], and a suspected political or religious motive to what looked like an accidental [death]. The applicant replied that he was not sure whether the [death] attracted national media attention. Again, the Tribunal has not received any further submissions.
§ Finally, there are several aspects of this claim that are, in the Tribunal’s view, inherently problematic.
-   For instance, the applicant contended that he acted as [an occupation 1] for these two boys, and had not been aware that they had been skipping school from time to time. In the Tribunal’s view, it is one thing for a wealthy or influential person whose child died while in the company of such boys to seek someone to blame. However, it is far from certain why he would hone in exclusively on the [occupation 1], as opposed to at least also [his employer] and/or the school administration.
-   Even more difficult to believe is why the grieving parents would attribute to the applicant – a person who happened to be Christian, but was otherwise unknown to them – a political or religious motive for such an incident.
-   Finally, the applicant indicated that the police investigated the incident and found no basis on which to lay charges. This appears unexceptional. It is difficult to believe why, if [Politician 1] is so influential and corrupt, and if believes that the applicant engineered his boy’s [death], he has not been able to official or public interest in the matter.
The Tribunal considers it possible that he was drawing on some past personal experiences when he was [occupation 1 for] boys who skipped school, and/or from some accounts he heard of schoolchildren in India dying in suspicious circumstances. However, all of the above considerations and concerns, taken together, lead the Tribunal to reject the applicant’s claim that an influential Tamil Nadu politician or well-connected figure is targeting him because of the [death] of his son, who was in the company of two of the applicant’s [clients]. The Tribunal also rejects the suggestion that such a figure is pursuing the applicant in the belief that the [death] was political or religiously motivated.
Discrimination and mistreatment
The applicant claims to have suffered discrimination and mistreatment for various reasons: (i) as an orphan, or person whose father is unknown; (ii) as a member of the lower Nadar caste; (iii) as a Sri Lankan; and (iv) as a Christian. For the reasons stated above, the Tribunal does not accept that he is stateless, so it is unnecessary for it to examine further his claim of discrimination on that basis.
The Tribunal considers each of these below, mindful of the applicant’s claim that he fears the cumulative effect of all of these factors.
The applicant has spent a high proportion of his time in India either studying under the sponsorship of, or working for, [Agency 1]. Nonetheless, he has received a good education, has had employment and has established a family. The documents that he submitted to the Department, in support of his protection visa application, indicate that he held bank accounts, driven vehicles, paid income tax and voted in elections. All of these suggest that the applicant has led a full life in India, with no self-evident examples of discrimination.
Discrimination as an orphan: The Tribunal accepts, on the available information, that the applicant is unsure of his parents’ whereabouts, and at least in Indian society, is regarded as an ‘orphan’. At the Tribunal hearing, the applicant said that not knowing your father is the worst thing in Indian culture, and he fears being discriminated against, for instance when seeking employment. The Tribunal accepts that the applicant has faced some societal discrimination as an only child without contact with his parents. However, it is not satisfied that this social opprobrium has resulted in any measurable harm, including material, physical or psychological harm.
Discrimination as a lower caste person: The applicant claimed that an added burden was his status as a member of the lower Nadar caste. He said at the Tribunal hearing that he is treated like an untouchable. By way of example, he said that if people cross his path in the morning, they consider it bad luck. Later in the hearing, the applicant corrected himself to say that he is not in fact an untouchable, but that his lower caste status adds to the difficulties he already suffers due to his profile (as an ‘orphan’, and a Sri Lankan). As noted in the delegate’s decision, country information indicates that persons of a lower caste face ‘considerable social and economic disadvantage, including social segregation.’ Again, with reference to the applicant’s account of his life in India, the Tribunal is not satisfied that he has experienced any discrimination or related harm amounting to persecution or ‘significant harm’.
Discrimination as a Sri Lankan: For the reasons stated above, the Tribunal does not accept that the applicant is a stateless person. It accepts that his mother was a Sri Lankan refugee, but the applicant’s place of birth and his father’s circumstances are far from clear. Even if the applicant had been born in Sri Lanka and strong ties to that country (for instance, through his mother and/or his father, although their family backgrounds are unknown), the fact remains that the applicant grew up in a local Christian children’s home and has long since lost contact with both parents. The Tribunal considers his situation far removed from Sri Lankan refugees or displaced persons who live in defined communities, and who may readily be perceived as such. The Tribunal is not satisfied that the applicant is routinely perceived to be Sri Lankan. To the extent that he may have revealed his background to others (for instance, in the course of conversation), the Tribunal is not satisfied that he has suffered discrimination or mistreatment of note.
Discrimination as a Christian: The Tribunal accepts that the applicant is a Christian, having regard among other things to his association with the children’s home, country information about the large number of Christians in Tamil Nadu, and incidental information such as the applicant’s marriage certificate and his children’s Western names.

The applicant claimed at the hearing that he did not experience real problems as a Christian in Tamil Nadu, mainly because he grew up in the [Agency 1] children’s home. The Tribunal notes country information indicating that Christians may face some discrimination and harassment in India, and on this basis, accepts that the applicant may have experienced some problems, of a minor nature.
As noted above, the applicant claimed that the BJP figure [Politician 1’s] pursuit of him is at least partly motivated by religious factors, but for the reasons stated above, the Tribunal does not accept that the applicant is subject to any such action.
Summary of findings
The Tribunal finds that the applicant is an Indian citizen in accordance with Indian law, whose mother was a Sri Lankan refugee and who may have some other ties to that country. It does not accept that an Indian BJP or pro-Hindu politician or influential powerbroker believes the applicant was responsible for the [death] of his son; that this person suspects the applicant was motivated by his Christian faith or political views to ‘arrange’ the [accident], or that there was any similar event that motivated the applicant to leave to work in [Country 1]. It finds instead that the applicant left for unrelated reasons.
The Tribunal accepts that the applicant may have suffered some degree of discrimination, as a person whose father is unknown (perceived to be an ‘orphan’), as a person of lower caste, and as a Christian. The Tribunal accepts, on the basis that it is plausible though far from certain, that the applicant’s Sri Lankan links (for instance through his mother) becomes known from time to time, and that this also leads to some societal discrimination. The Tribunal does not accept that these factors, individually or cumulatively, have resulted in the applicant experiencing persecutory or significant harm.
Assessment: Refugee Criterion
The Tribunal now assesses whether the applicant, on the basis of the findings of fact above, the applicant’s future conduct if he returns to India, and relevant country information, has a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future.
For the reasons set out above, the Tribunal accepts that the applicant is a Tamil, a Christian, a member of a lower caste, a person whose parents’ whereabouts are unknown (perceived to be, or spoken of as, an ‘orphan’) and a person whose mother at least is from Sri Lanka. The Tribunal accepts that the applicant’s wife and children are currently living in Chennai, with friends. The applicant has lived most of his life in [District 2] (the [in given region] of Tamil Nadu), but also has connections in [District 2] in the West and Chennai, the capital city on the north-eastern coast.
The applicant focused his claims in particular on his prospects as a Christian in Tamil Nadu (and India). He impressed on the Tribunal that, in the past he has relied on the [Agency 1] for his work (as well as accommodation and education at various points in his life). His prospects on return to India would be different, as he would have to fend for himself on the jobs market and when looking for accommodation. The applicant acknowledged at the hearing that there are Christians throughout Tamil Nadu and India, but said that people are generally suspicious and unwilling to help when a newcomer arrives. The Tribunal accepts that the applicant no longer works for [Agency 1] (although it does not accept any suggestion that this might be linked with the [death] of [Boy 1]). It is not satisfied that the applicant, now in his [age range] and with his own family, has any basis for continued reliance on that organisation, which is focused on children. At the same time, however, the Tribunal considers that the applicant has played down somewhat his prospects of Christian communities in India being willing to provide him at least some kind of support.
Country information set out in the delegate’s decision, which formed the basis for discussion at the hearing, indicates that there is a large Christian population in Tamil Nadu. This is particularly pronounced in [District 2], the applicant’s home area (although he contended at the Tribunal hearing that he really has no ‘home’ in India). This district has about [number] inhabitants, about 47 per cent of whom are Christian.[14]
[14] [Deleted]
The Tribunal has carefully considered the articles that the applicant provided, indicating attacks on Christians in various parts of India. For instance, the DFAT Country Guide of July 2015 states that: ‘isolated incidents of communal violence against religious minorities are not uncommon, including attacks on religious properties and desecration of cemeteries. For example, a series of attacks occurred on Catholic churches in Delhi in late 2014/early 2015. An elderly nun was gang-raped in rural West Bengal in March 2015, one day before a church in Haryana was destroyed by vandals (who planted a Hindu flag).’ Overall, however, DFAT that ‘[s]uch incidents have raised considerable concern among some Indian Christians of an increasing atmosphere of religious intolerance in India. In conclusion, it found that ‘these incidents of violence represent a moderate risk of social discrimination and violence, although generally speaking most Christians can go about their lives without incident.’ In the Tribunal’s view, this indicates that while violence against Christians appears to be on the rise in India, they remain sporadic and not routine. Any assessment of whether a particular individual or community is at risk of violence or serious discrimination will therefore depend on local conditions and experiences.
The Tribunal considers it significant that the applicant has not experienced any marked difficulties, including societal discrimination or violence, as a Christian in Tamil Nadu. While it accepts that his close association with [Agency 1] might have played a role, it is not satisfied that this fully explains the absence of past problems. The Tribunal is not satisfied that the applicant’s Christian faith gives rise to a real chance of discrimination, violence or other harm amounting to persecution, if he returns to Tamil Nadu.
The applicant also claimed that, as a Christian looking for jobs and work on the open market, Hindus will deny him opportunities, and even prevent him from practising his faith if he were to find somewhere to live. The latest DFAT report notes, in support of this, that ‘at a societal level, there may be a general tendency to favour members of one’s own religious group but there is great variation of experiences, particularly between the states.’ In a similar vein, it notes that ‘Anecdotally, refusal to sell or rent property to outsiders is commonplace amongst all religious groups.’ In the Tribunal’s view, this confirms that discrimination is entrenched among various religious (and other) groups, and lends some credibility to the applicant’s concerns that he may find it difficult to settle in India if (as he suggests) he will no longer enjoy [Agency 1] patronage. However, given the presence in Tamil Nadu of a large Christian community, and especially so in [District 2], together with country information as a whole, the Tribunal is not satisfied that the applicant will be denied accommodation, employment or other basics, such that he will face a real chance of persecutory harm if he goes back to India.
The applicant claims that his other attributes – as a member of the lower Nadar caste, as an ‘orphan’ and as a person of Sri Lankan background – add to his risk of persecution. Based on the findings above about his past experiences, and having regard to country information as a whole, the Tribunal is not satisfied that these attributes, considered singly or cumulatively, result in a real chance of the applicant experiencing serious harm.
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).
Assessment: Complementary Protection
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). Having regard to the findings of fact and relevant country information above, and in the absence of any additional claims or factors that could put the applicant at risk of significant harm as defined in s.36(2A), the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that he will suffer significant harm
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
The applicant claims that his biological father lives in Australia, although he has given few details and appears to have made minimal efforts to clarify that person’s location or status in Australia. The Tribunal is therefore not satisfied 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
The Tribunal affirms the decision not to grant the applicant a protection visa.
James Silva
Member

ATTACHMENT: RELEVANT LAW
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. The DFAT Country Information Report – India of 15 July 2015 applies to this decision.
Selected extracts 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.
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.
…

[2016] AATA 4527

4 October 2016

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Immigration

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