1613527 (Refugee)

[2019] AATA 4552

1613527 (Refugee) [2019] AATA 4552 (10 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1613527

COUNTRY OF REFERENCE:                  India

MEMBER:Scott Clarey

DATE:10 July 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 10 July 2019 at 3:36pm

CATCHWORDS

REFUGEE – protection visa – India – religion – Catholic Christian – particular social group – single men – Anglo-Indian men – fear of degrading treatment – desertion by ex-wife – stigma of marital status – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 417, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

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 5 August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant [named] who claims to be a citizen of India, applied for the visa on 28 April 2016. The delegate refused to grant the visa on 5 August 2015. The delegate refused to grant the visa on the basis that they were not satisfied there was a real chance of persecution for one or more of the reasons mentioned in s.5J(1)(a) of the Act.

3. [The applicant] applied to the Tribunal for review of this decision on 25 August 2016. The applicant provided the Tribunal with a copy of the delegate’s decision record.

4. [The applicant] appeared before the Tribunal on 2 April 2019 to give evidence and present arguments. The Tribunal also had the benefit of hearing oral evidence from [Ms A], [the applicant’s] older sister, who appeared as a witness. I note that I found both [the applicant and Ms A] to be sincere, candid and credible witnesses.

5. For reasons that will be outlined below, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.  

10. 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

11. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Claims from protection visa application

12. [The applicant] set out his initial claims for protection in his application form as follows:

    Why did you leave that country?

    Arrived in Australia to attend my father’s funeral.

    What do you think will happen to you if you return to that country?

    I have no family or friends to support me should I return. I will continue to receive “degrading treatment”, please see my attached statutory declarations. I belong to a minority community and the “degrading treatment” will not stop. I am fearful of not being able to even secure a safe accommodation as the stigma of my wife deserting me will greatly hinder my living standards. I do not speak any of the local languages in each state in India and the “degrading treatment” will be worse in other states in India

    Did you experience harm in that country?

    No.

    Did you move, or try to move, to another part of that country to seek safety?

    No. Have lived all my life in Chennai. Speak only English at home and only conversation in Tamil. Other states have language of their own and cultures and languages I do not know. No family or friends in other states. (Please see attached statutory declaration)

    Do you think you will be harmed or mistreated if you return to that country?

    Yes. I will continue to receive “degrading treatment”. I belong to a minority community and will continue to be looked down on as a downtrodden with reservations against my single status, due to desertion by my ex-wife. It is cumbersome to secure even rental accommodation, as the stigma of my marital status follows me everywhere I go. I have no one to be my referees to assist with my day-to-day living.

    Do you think the authorities of that country can and will protect you if you go back?

    No.

    Do you think you would be able to relocate within that country?

    No. Every state in India has its own language my mother tongue is English + I have lived all my life in Chennai. I have some conversational Tamil + very little Hindi. I do not have any referees and the stigma of my single status will only inflict more “degrading treatment”.

13. In making my decision, I have carefully considered the documentary evidence on the Department’s file, which included:

    ·a statutory declaration (dated 28 April 2016) from [the applicant]

    ·a statutory declaration (dated 28 April 2016) from [Ms B] ([the applicant]’ sister)

    ·a statutory declaration (dated 28 April 2016) from [Ms A] ([the applicant’s] sister)

    ·an unsigned statement from ‘[a named person]’ (dated 26 April 2016) who claimed to be the lawyer of the [applicant] family

    ·A document titled ‘Petition to The Hon Minister for Immigration and Border Protection’, that included more than 30 signatures

    ·A letter (dated 22 April 2016) from [a named person], the [applicant's] family GPin Australia

    ·Multiple receipts of money transfers, in various amounts from multiple members of the [applicant’s] family in Australia

    ·Copies of calling cards

14. On 2 April 2019, [the applicant] submitted a number of news clippings to the Tribunal, including a 2011 article from the Telegraph newspaper about the Anglo-Indian Community ‘fighting for survival’ primarily because its culture and population was being diluted by people ‘marrying-out’ of the community. The article stated (in part): 

    Last week [the Anglo-Indian community] staged a food festival to celebrate its unique cuisine which blends Indian spices with classic English recipes in dishes like Indian Railway Mutton, Dak Bungalow Chicken and Colonel Standhurst’s Beef Curry.

    Many of its leading figures have thrived in India’s Armed Forces, where the current air Chief Marshal N. A. K Browne is an Anglo-Indian, and in the country’s extensive railways, which they once dominated.

    The actor Ben Kingsley, entertainers Sir Cliff Richard and Engelbert Humperdinck, and the former Olympic athlete Sebastien Coe, are claimed by the community as some of their highest achievers.

    But since India’s independence in 1947 the community in India has gradually dwindled in size and its leaders now believe it is facing a battle for survival unless it can reverse the trend.

    Dr Charles Dias, the community sole member of the Lok Sabha parliament has launched a new campaign to win greater government support to help preserve its culture and to encourage more Anglo Indians to marry within their own community. He met India’s law and minority affairs Minister Salman Khursheid to press for land to be allocated for housing estates, new Anglo-Indian cultural centres and reserved places for Anglo Indians in Indian universities.

    The community is currently suffering a housing crisis, he said, because many had lost homes given as part of their jobs in the Indian Railways and could not afford to buy land.

    “We are setting up a marriage bureau because otherwise our Anglo-Indian girls and boys will marry outside and I loot our population and culture.

    “Anglo-Indian culture is a good thing, our language, culinary traditions. We are a distinctive community and we must stay together,” he said.

15. [The applicant’s] post-hearing submission also included a number of articles about violence against Christians in India and a Wikipedia entry on the same topic. This issue is discussed in further detail below. The submission also included a [social media] search result for [the applicant’s] estranged ex-wife, but no further information or explanation was provided.

16. At the hearing, [the applicant] submitted a brief letter (dated 27 March 2019) from a ‘clinical psychologist’, [Ms C]. The letter stated:

    This is to certify that [the applicant] has been attending [named health service] since 17/12/2018. He commenced counselling [in March] 2019 and he has attended 1 session to date. He has an upcoming review appointment [date]/4/19.

17. On 8 April 2019, [the applicant] made post-hearing submissions that included a ‘[a report]’ (dated [March] 2019) from [Centre 1] signed by [Ms C], whose ‘designation’ is ‘Psychologist P2’. The report stated that [the applicant] ‘currently presenting with depressed mood in the context of multiple social stresses and poor physical health’. Under a section titled ‘Counselling history and psychiatric interventions’, the letter stated that [the applicant] has had ‘nil previous psychiatric or psychological interventions’. The ‘risk assessment’ notes that [the applicant] has ‘[specified symptoms]... There were no imminent acute risks identified today that required immediate intervention’.  

18. The submission of 8 April 2019 also included five additional media articles relating to the plight of Anglo-Indians, including one from the Economist and one from the New York Times that were discussed with [the applicant] at the hearing (detailed further below) and a duplicate of the  article that was previously provided to the Tribunal on 2 April 2019. I have had regard to the information contained in these articles.

    Findings and reasons

19. The issues is this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) on return to India and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of India, there is a real risk he will suffer significant harm.

    Identity

20. The applicant claims to be a citizen of India and has provided a copy of his passport to the Department with his application. I find that the applicant is a citizen of India which is also his receiving country for the purposes of the refugee and complementary protection assessments.

    Assessment of claims

21. [The applicant] claims to fear that if he returns to India he will suffer degrading treatment because he is a member of a minority ethnic group (Anglo-Indian) and due to his status as a single man whose wife has left him. [The applicant] has also made claims relating to his health. He seeks to invoke Australia’s protection obligations for these reasons.

    Relevant background

22. [The applicant] is a [age] year old man from Chennai, India. I accept that he belongs to and identifies with the Anglo-Indian ethnic group. . I accept that he is a practicing Catholic whose native language is English. He also indicated he speaks limited Tamil. [The applicant] indicated that he was previously married, from 1995 to 2003 and he has one adult daughter from this relationship. [The applicant] stated that he has not seen his wife or daughter since they left him in 2003 and he does no know where they currently live.

23. According to Departmental records, [the applicant] first visited Australia on a tourist visa for approximately three weeks in April 2000, to attend his mother’s funeral. He next visited Australia in May 2004 for a period of approximately two months on a sponsored family visitor visa, to visit his family here. In February 2005 [the applicant] applied for a tourist visa to visit Australia but the application was refused in May 2005. In May 2012 [the applicant] arrived in Australia on a tourist visa, which was the last time he entered the country, having departed India legally. In August 2012 [the applicant] applied for a [specific] visa which was refused by the Department, a decision that was ultimately affirmed by the Tribunal in June 2014. On 28 April 2016, [the applicant] applied for the protection visa under review.

24. I accept that, according to his oral evidence, [the applicant] grew up in a large, Catholic Anglo-Indian family in Chennai. [The applicant] described his upbringing as ‘middle-class’; his mother worked for [a] company and his father worked for the railway company. [The applicant] is the youngest of [number] siblings, all of whom have emigrated to Australia and have resided here for some time, as did both of [the applicant’s] parents before they died (his mother died in 2000 and his father died in 2012). I accept that after [the applicant] graduated high school in [Chennai] he held a number of jobs including [specified occupation]. I accept that from the age of [age], for a period of approximately 13 years, [the aApplicant] held a long-term job with a named international [company]. He rose through the ranks and was eventually promoted to supervisor, a job of considerable responsibility, which included [various tasks]. I accept that although all of [the applicant’s] immediate family, including his [siblings] and both parents, emigrated to Australia at different times from the 1980s onwards, he stayed in close contact with his family throughout this time.

    Fear of harm due to being an Anglo-Indian man and/or a single man (including one whose wife has left him) and/or a catholic

25. In the protection visa application, [the applicant] stated that he would be subjected to “degrading treatment” if he were to return to India due to his status as an Anglo-Indian man and his status as a single man whose wife had left him. He stated that the stigma of his marital status would follow him everywhere, and made it difficult for him to secure suitable accommodation. In a statutory declaration (dated 28 April 2016) signed by [the applicant] and included with the original application, [the applicant] stated that he ‘had no family or anything to return to India’ and had ‘no material possessions or home to go back to’. [the applicant] claimed to have suffered a nervous breakdown and been hospitalised for several months in 2005. He stated that his ‘forced marital status of ‘single man after wife deserting me’ was a hindrance to find basic accommodation’. He stated that he had been unemployed for a period of time and as a result he was forced to rely on the financial support of his family in Australia during this time. He claimed that if he were forced to return to India it ‘would cause serious health, well-being and mental health’ issues for [the applicant] and members of his family. [The applicant] also stated in his statutory declaration that the Anglo-Indian community was looked down upon and discriminated against. He stated that his ‘Anglo-Indian heritage would only fuel the ‘degrading treatment’ and obstruct further my chances of living a normal life should I have to return to India’.

26. When asked at the hearing what he feared would happen if he were to return to India, [the applicant] stated that he had nothing to go back to there. He said that he would have trouble obtaining rental accommodation if he were to return because of the stigma associated with being a single man whose wife had left him. When asked how landlords would know of his marital status, [The applicant] said that he would be asked if he was married or not married and that people generally knew your marital status. He said that previously he had had trouble obtaining suitable accommodation in Chennai, and had attributed these difficulties to discrimination from agents and landlords due to his bachelor status. I note that although he had found it difficult, [the applicant] had been able to find accommodation in India but that he claimed that it was substandard and on the outskirts of town. When asked why this claimed stigma existed, [the applicant] said that he thought people may assume that bachelors lead a certain kind of insalubrious lifestyle. When asked about an issue relating to [the applicant] being able to access a ‘ration card’, [the applicant’s] sister (who was a witness at the hearing), explained that [the applicant] had a right to hold a ration card, had previously held one but that it had expired and that he could apply for a new one but the process could be a bureaucratic one.

27. I note the following country information about India’s dynamic economy, drawn from a recent Australian Government report, which was discussed with [the applicant] at the hearing:[1]

    India is one of the fastest growing major economies in the world growing at an annual rate of around seven per cent. The Australian Government estimates that by 2035 India is likely to become the third largest economy in the world, after China and the United States. Tamil Nadu, with Chennai as its commercial centre, is one of India’s key centres of commercial and economic activity. Eight states account for more than 60 per cent of the nation’s economic activity – Andhra Pradesh, the capital New Delhi and surrounding region, Gujarat, Karnataka, Kerala, Maharashtra, Tamil Nadu and Uttar Pradesh. Five states account for 70 per cent of India’s exports – Maharashtra, Gujarat, Karnataka, Tamil Nadu and Telangana – in that order. Five states attracted 71 per cent of all FDI inflows into India from April 2000 to December 2017 – Maharashtra, Karnataka, Tamil Nadu, Gujarat and New Delhi. Five states account for half of all tax collected by the GST – Maharashtra, Tamil Nadu, Karnataka, Uttar Pradesh and Gujarat.

    Tamil Nadu is India’s second largest economy and a highly urbanised, leading manufacturing state, offering opportunities in advanced manufacturing, urban infrastructure and water management. The state capital Chennai, the ‘Detroit of India’, is the centre of Indian automobile and component manufacturing and one of the world’s top 10 automotive hubs. The state is a major agricultural producer and a major importer of Australian pulses and grains. Tamil Nadu’s wind energy potential is world class. The state has among the highest per capita incomes and best health indicators in India.

    [1] An India Economic Strategy to 2035, Navigating from Potential to Delivery – A report to the Australian Government by Mr Peter N Varghese AO, 27 April 2018,

1. When asked at the hearing specifically about fears he held relating to his Catholic faith and/or his Anglo-Indian heritage, [the applicant] gave a vague response and said that he would face discrimination because he was Anglo-Indian and because he was Catholic. He cited some vague, unspecific examples of people going into churches and committing violent acts against worshippers. [The applicant] said that because he spoke English and only a little bit of Tamil, that he would be stigmatised and discriminated against on the basis of the language he spoke. I note that [the applicant] struggled at times to specifically identify the harm he feared on returning to India, and spoke repeatedly of the struggle he believed he would face in finding suitable accommodation. [The applicant] said that he had been a regular churchgoer but had not experienced any harm relating to his religion when he had lived in India. He had however seen examples of the violence on TV and through the Internet. He said violence against Christians was widespread and that Christians never knew when they would be attacked and hence lived life on edge. [The applicant] also stated that the situation facing Christians had become worse since he had been away, the basis for which was that he saw it frequently on social media.

2. I note the following country information about religion drawn from the DFAT Country Information Report, which was discussed with [the applicant] at the hearing:[2]

   [2] Department of Foreign Affairs and Trade (DFAT) Country Information Report, India, 17 October 2018, sections 3.4, 3.5, 3.12 3.13, 3.14  and 3.15

   Section 15 of the Constitution prohibits discrimination against any citizen on the grounds of religion. Section 25 guarantees the right to freely profess, practise and propagate religion, and section 26 guarantees every religious denomination or any sect the freedom to manage its own religious affairs. Federal law provides minority community status to six religious groups: Muslims, Sikhs, Christians, Parsis, Jains and Buddhists. State governments can grant minority status to religious groups that are minorities in a particular region.

   According to the 2011 census, 79.8 per cent of Indians are Hindu, 14.2 per cent are Muslim, 2.3 per cent are Christian and 1.7 per cent are Sikh. Two per cent of Indians adhere to another religion including Buddhists, Jains, Zoroastrians, Jews, Baha’i and tribal religions.

   …

   Christians constitute approximately 2.3 per cent of the population. The largest Christian denominations today are Roman Catholics, Syro-Malabar Catholics, Malankara Orthodox Syrians and various Protestant denominations. Christianity is the majority religion in the north-eastern states of Mizoram, Nagaland and Meghalaya, and has a strong presence in the southern states of Goa, Kerala and Tamil Nadu.

   A rise in Hindu nationalism has coincided with increasing incidents of violence and discrimination against Christians. Christians have increasingly faced poorly founded legal proceedings and police reports, difficulties for churches and NGOs dealing with local government authorities, public statements by prominent officials denigrating Christians, and threats or acts of violence. In July 2017, attackers publicly murdered a Christian pastor in Punjab, allegedly for attempting to convert others.

   Authorities have disbanded or de-registered Christian charities and NGOs as part of a continuing trend limiting NGO activity. One of India’s largest Christian charities, the United States-based Compassion International, shut down after 48 years of operating in India when the government banned foreign donations to the organisation. The government claimed the charity, which operates child sponsorship programmes out of local Indian churches, was using its charity status to convert children to Christianity.

   On 2 August 2017, the Supreme Court asked the Odisha government to reinvestigate 315 cases pertaining to anti-Christian violence in 2008 in Kandhamal District. The 315 cases, from a total of 827 registered cases, had been closed on grounds of insufficient evidence against the accused. Charges were filed in the other 512 cases. Completed trials in 362 cases, resulted in 78 convictions. The Supreme Court also directed the state government to pay compensation for injury and property loss or damage.

   DFAT assesses that most Christians live day-to-day without societal discrimination or violence. Christians engaged in proselytising, or perceived to be proselytising, particularly to Hindus, face a moderate risk of official and societal discrimination, and a moderate risk of societal violence.

3. I acknowledged and discussed with [the applicant] at the hearing that country information relating specifically to the plight of Anglo-Indians in India was relatively scarce. For example, the DFAT country information report on India does not discuss issues relating to Anglo-Indians (nor do the two prior editions of the same report). I discussed with [the applicant] the country information that did exist relating to Anglo-Indians suggested that while they were perhaps less privileged as a group than they once were, and they may experience some difficulties in their day-to-day lives that could be attributed to their ethnicity, any discrimination if it were to occur was relatively low level. For example, a 2010 article in The Economist stated:

   …But after the British quit India in 1947 the Anglos lost their privileges. They are still guaranteed two seats in India’s parliament, yet public funding for their schools was stopped in 1961. Few could compete in India’s new, non-discriminatory job market. Many left for Britain, Australia and Canada. The Anglo-Indian population fell from perhaps 500,000 in 1947 to fewer than 150,000 today. Those who remain fear for their culture.

   Their youngsters, like many in India’s urban middle-class, are marrying outside the community. They speak Hindi and prefer kulfi to spotted dick. Yet many are also thriving, thanks to rising demand for Anglophones from India’s booming services firms. Brightening, Mrs McDonald remarks that all of her grandchildren remaining in India have found good jobs in call centres. "They’re good, call centres," she says. "Many people have found jobs there."[3]

   [3] ‘Some corner of a foreign field: Better times beckon for India’s Anglo-Indians’, The Economist, 21 October 2010, >

   A 2010 article in the New York Times titled ‘Fadeout for a Culture That’s Neither Indian Nor British’[4] noted that the Anglo-Indian culture was fading, and the numbers of Anglo-Indians in India had dwindled to around 150,000 people. The article did not however cite any specific examples of persecution that Anglo-Indians in India may face. The article acknowledged the ‘poverty and isolation’ that some elderly Anglo-Indians can face in retirement but also discussed certain privileges still enjoyed by Anglo Indians. For example, the article stated that India’s president ‘appoints two Anglo-Indian members of Parliament each session to ensure that the tiny community has political representation’. The article also stated that:

   …the fortunes of younger Anglo-Indians are generally rising, Mr. O’Brien said. Their English skills and what Ms. Andrews, the anthropologist, describes as their “Western bearing” make them attractive employees for multinationals and Indian outsourcing companies. “You go for a job interview in a multinational with a name like O’Brien, and, well, it all flows pretty easily for our children these days,” Mr. O’Brien said.

   Samuel Moses, a recruitment consultant with Catalyst Consulting Services, an employment agency in Calcutta, agreed. “It’s their fluency in English that makes it easy for them to get positions in multinationals and customer care positions in call centers,” he said.

   Greg Francis, a 30-year-old Anglo-Indian from Calcutta, where his forefathers worked on the railroads, works for I.B.M.’s call center division in Gurgaon, a high-rise satellite city on Delhi’s edge where many multinationals have their headquarters where he trains Indians on dealing with Westerners. “They need to learn a lot,” he said.

   His life is good, he said, but he could not shake the idea that his people’s best days were in the past.

   “I feel kind of homesick for those old times,” he said, “although I never knew them.”

   [4] ‘Fadeout for a Culture That’s Neither Indian Nor British’, The New York Times, 14 August 2010, >

   When this country information was discussed with [the applicant] at the hearing, he stated that these articles primarily discussed the plight of young people. He said that age was very important especially when trying to get a job. When asked why he thought he wouldn’t be able to find employment given that he had been previously held a long-term seniorposition with an international company, [the applicant] said that he did not have a degree and that things had changed. He said that he would have difficulty getting a recommendation which was required and that his old boss had passed away. He said that many newer jobs required skills that he did not have. In response to the general information about the plight of Christians in India, [the applicant] stated that people are living in fear and that the issue was underreported because victims feared reprisals.

   Conclusion on fear of harm due to being an Anglo-Indian man and/or a single man (including one whose wife has left him)

4. I have carefully considered [the applicant’s] concerns about returning to India as an Anglo-Indian man and/or a single man (including those whose wives have left them) in light of country information about the status and treatment of Anglo-Indian men in India and [the applicant’s] specific circumstances. As was discussed with [the applicant] at the hearing, country information relating to the plight and status of Anglo-Indian people in India is relatively scarce. I have not been able to unearth any specific or substantive country information relating to the situation pertaining to single men in India or single men whose wives had left them, nor was [the applicant] able to provide any to the Tribunal.

5. I acknowledge and accept that it may be difficult for [the applicant] to re-establish his life on return to India for a number of reasons, including the fact that he has lived in Australia for an extended period. Although there is little country information to support [the applicant’s] claims on this issue, I am willing to accept that he may face a degree of ostracism and/or discrimination in India, due to the fact that he is a member of a minority community (Anglo-Indian) and/or a single man (including one whose wife has left him). Given the available country information outlined above (and discussed with [the applicant] at the hearing), and after considering the evidence before it relating to [the applicant’s] life history and personal circumstances, I am not satisfied that this would arise to the level of serious or significant harm as contemplated in the Act.

6. I note the country information (outlined above and discussed with [the applicant] at the hearing) suggests that India’s economy is one of the fastest growing in the world and that Tamil Nadu ([the applicant’s] home state), is one of the key centres of this economic activity, that ‘has among the highest per capita incomes and best health indicators in India’. I also note that [the applicant] has considerable prior work experience in India, including a long-term job of significant seniority with a large international [company]. Although I accept that men in [the applicant’s] situation may face some general societal prejudice and some economic hardships, given the available country information, I find that there is nothing in the evidence to indicate or suggest that he would be likely to suffer systematic discrimination or harassment or that this would arise to the level of serious or significant harm as contemplated in the Act. Nor is there any evidence that Anglo-Indian and/or single men (including those whose wives have left them) are routinely denied employment or access to housing in India. I note that [the applicant’s] family have supported him both financially and emotionally over a long period of time and I have no reason to believe that they would not continue to do so if he returned to India. For these reasons I do not accept that [the applicant] would be destitute and/or unable to subsist and/or homeless on return to India.

7. Given the country information, and after considering the personal circumstances of [the applicant], I find that he does not face a real chance of serious harm upon his return to India for reasons relating to him being an Anglo-Indian and/or a single man (including those whose wives have left them). I find that [the applicant’s] fears of persecution on this basis are not well founded.

   Conclusion on fear of harm due religious beliefs

8. I accept that [the applicant] is a practising Catholic and has been since childhood. I note that [the applicant] has never claimed past harm in India relating to his religious beliefs. While I accept that there has been a recorded rise in Hindu nationalism in India and this has coincided with increasing incidents of violence and discrimination against Christians, given the country information outlined above, and after considering the evidence before the Tribunal relating to [the applicant’s] religious beliefs, practices and personal circumstances, I find remote the chance that [the applicant] would be seriously harmed on return to India as a consequence of his faith, his status as a single man who is also Catholic, his status as an Anglo-Indian man who is also Catholic or for any reason related to his religious beliefs and/or faith in general. I find that [the applicant’s] fears of persecution on this basis are not well founded.

   Issues related to [the applicant’s] health

9. I accept that [the applicant] has previously suffered from health conditions (including mental health issues and [another medical condition]) in the past, and that he may have suffered what he described as a ‘nervous breakdown’ in 2005. I note that according to a letter from a ‘clinical psychologist’ (dated [March] 2019 and submitted to the Tribunal at the hearing) [the applicant] had commenced counselling approximately four weeks prior to the hearing and had attended one counselling session. I note that [the applicant’s] sister stated that the timing of the appointment was due to a long waiting time for the clinic. I also note that the report from [Centre 1] (submitted post-hearing on 8 April and discussed above) stated that [the applicant] was ‘currently presenting with depressed mood in the context of multiple social stresses and poor physical health’. I also note that [the applicant] described himself at the hearing as currently being in ‘good health’. The report also stated that [the applicant] had ‘nil previous psychiatric or psychological interventions’. The ‘risk assessment’ in the report notes that [the applicant] has ‘[specified symptoms]...There were no imminent acute risks identified today that required immediate intervention’.

10. I accept that Australia’s healthcare standards are higher than those in India, and that there may be costs associated with accessing healthcare in India. I note that [the applicant] stated that he was able to access the healthcare he needed in India in the past and that his family ‘supported me financially and emotionally’ during the time he was convalescing from his claimed nervous breakdown in 2005. I have no reason to believe that [the applicant’s] family would not do so again in the future if required. I also note country information, referred to above, that [the applicant’s] home state of Tamil Nadu ‘has among the …best health indicators in India’[5]. I note that [the applicant] has not made any claims that he would not be able to access appropriate health support services (including mental health services) in India if required for any reason, including one of the five reasons set out at s.5J(1)(a) of the Act.

    [5] An India Economic Strategy to 2035, Navigating from Potential to Delivery – A report to the Australian Government by Mr Peter N Varghese AO, 27 April 2018,

11. Given the available evidence, I am not satisfied that [the applicant] has a medical condition (including any condition relating to his mental health) that is relevant to the review at hand nor am I satisfied that [the applicant] would be unable to access medical services and obtain medical treatment in India for any reason if it were required. I do not consider that [the applicant] was hindered by his health in his ability to give evidence at the hearing.

12. I note that at the conclusion of the hearing, [the applicant’s] sister requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. I note that [the applicant’s] sister did not provide any specific reasons for the request but asked generally about the process for Ministerial referral.

13. The Tribunal has considered the applicant's case and the ministerial guidelines relating to the discretionary power set out in PAM3 'Minister's guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J). In light of the lack of specific detail relating to the request, and when considered in the context of [the applicant’s] particular claims and circumstances, the Tribunal has decided not to refer the matter to the Department for consideration by the Minister.

14. The Tribunal notes that [the applicant] can still make a request directly to the Minister.

    Conclusion – refugee grounds

15. Having considered [the applicant’s] claims both individually and cumulatively, all of the available evidence and relevant country information (including the oral testimony of the witness at the hearing), I find that [the applicant] does not face a real chance of serious harm on return to India for any reason in the reasonably foreseeable future and that his fear of persecution is not well-founded.

16. For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore [the applicant] does not satisfy the criterion set out in s.36(2)(a).

    Complementary protection

17. Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa). 

18. For the reasons given above, I have found there is not a real chance that [the applicant] would suffer persecution involving serious harm from society, the Indian authorities or anyone else due to his religion and/or because he is a member of particular social groups comprising Anglo-Indian men and/or single men (including those whose wives have left them).

19. In considering whether there is a real risk that the applicant would suffer significant harm if returned to India, I have noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[6]

    [6] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].

20. [The applicant] has not advanced any claims indicating that he considers he would face a real risk of significant harm if returned to India other than for the reasons discussed above relating to his claims under the refugee criterion. Given I do not accept that [the applicant] faces a real chance of suffering persecution involving serious harm if he returns to India, I also find, having regard to the findings of fact set out above, that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to India, there is a real risk that he would suffer significant harm in the form of being arbitrarily deprived of his life; having the death penalty carried out on him; being subjected to torture; being subjected to cruel and inhuman treatment and punishment; and/or being subjected to degrading treatment or punishment (that causes, and is intended to cause, extreme humiliation) by society, the Indian authorities or anyone else, as a necessary and foreseeable consequence of him being removed from Australia to India.

1. Consequently, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

   DECISION

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

   Scott Clarey
   Member
   - Extract from Migration Act 1958

   
   
   ATTACHMENT 

   5 (1) Interpretation

   …

   cruel or inhuman treatment or punishment means an act or omission by which:

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

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

   but does not include an act or omission:

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

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

   …

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

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

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

   …

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

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

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

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

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

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

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

   …

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

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

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

   …

   5J Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   (b)significant physical harassment of the person;

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

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

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

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

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

   5K  Membership of a particular social group consisting of family

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

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

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

   (i)  the first person has ever experienced; or

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

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

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

   5L  Membership of a particular social group other than family

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

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

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

   (c)any of the following apply:

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

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

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

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

   5LA  Effective protection measures

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

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

   (i)  the relevant State; or

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

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

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

   (a)the person can access the protection; and

   (b)the protection is durable; and

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

   ..

   36Protection visas – criteria provided for by this Act

   …

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

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

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

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

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

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

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

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

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

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

   …