1614049 (Refugee)

1614049 (Refugee) [2020] AATA 4842 (28 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1614049
COUNTRY OF REFERENCE:                   India
MEMBER:Christine Cody
DATE:28 September 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 September 2020 at 3:22pm
CATCHWORDS
REFUGEE – protection visa – India – religion – conversion to Christianity – fear of harm from Hindu extremists – Bharatiya Janata Party (BJP) – Rashitriya Swayamsevak Sangh (RSS) – Vishva Hindu Parishad (VHP) – credibility concerns – inconsistent, changing and unlikely evidence – past harm and actions taken to avoid harm – inconsistent information with previous visitor visa application – knowledge of Christianity – lack of involvement with Christianity in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 36, 65, 357A, 423A, 437, 438
Migration Regulations 1994 (Cth), Schedule 2
CASES
Dranichnikov v MIMA [2003] HCA 26
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant who claims to be a citizen of India applied for a protection visa under s.65 of the Migration Act 1958 (the Act) on 22 March 2016.[1] A delegate of the Minister for Immigration and Border Protection refused to grant the visa on 9 August 2016. This is an application for review of that decision. The relevant law is set out at Annexure A.
[1] The date is recorded in the delegate’s decision record.
The applicant arrived legally in Australia [in] February 2016 as the holder of an FA 600 visitor visa. Prior to coming to Australia, the applicant visited [Country 1] [from] March 2015 [until] March 2015, and again [from] July 2015 [until] September 2015.[2]
[2] Information sourced from the delegate’s decision record and the application forms.
The Department
The Department file contains the application forms, a written statement by the applicant setting out his claims for protection, a copy of the applicant’s passport, and a copy of the delegate’s decision record.
According to the application forms signed on 11 March 2016, the applicant’s background and claims can be summarised as follows:
·     The applicant was born in Kannur, Kerala, India and is now aged [age] years. He was born in a Brahmin Hindu family. He speaks, reads, and writes both English and Malayalam.
·     The applicant has never married nor been in a de facto relationship. The applicant’s mother, father, and sister all reside in India. The applicant is in contact with them by phone.
·     He lived in [Town 1] from birth until June [year], where he completed his education including a [Qualification 1] at University in April 2010. He then moved to Bangalore where he lived from July 2010 until December 2014. During this time he completed a [Qualification 2] at [education provider] from July 2010 until July 2011; he then worked as a [Occupation 1] for [Company 1] in Bangalore from August 2011 until December 2014 (this was the only employment he declared). The applicant then returned to his address in [Town 1] from January 2015[3] until March 2015.
·     The applicant’s father is a priest at the local temple. When the applicant was young, he helped his father, and studied the rituals and ceremonies.
·     The applicant made some friends when he worked in Bangalore, who invited him to church and to a series of meetings which explained the Christian faith. The applicant began to attend church every weekend, and he started reading the Bible. Over the course of three months the applicant read most of the New Testament and a large portion of the Old Testament. After a few months of daily reading he had begun to accept Christianity in his heart; he made the life altering decision that for the first [half] of his life he had been in the wrong faith. He continued to read the Bible and his experience was deeper and he realised that this is what he had been looking for.
·     The applicant admitted to a family member that he had been going to church and reading the Bible.
·     The applicant told his sister about his faith. His parents wanted him to continue in Hinduism. The applicant told a few of his school friends about the Bible and asked them to read it. Two of the applicant’s friends became Christian, but the others told some people who were affiliated with the Bharatiya Janata Party (BJP), Rashitriya Swayamsevak Sangh (RSS), and Vishva Hindu Parishad (VHP).
·     A local BJP leader asked the applicant’s father to attend the office. He abused the applicant’s father and threatened to kill the applicant. The applicant moved “to the city” but the people caused problems there as well.
·     The applicant spent a month in [Country 1] during March 2015, staying with a friend from university, before returning to [Town 1]. When he returned, the applicant realised that everyone was talking about the applicant, and he and his family were isolated from the wider society. In July 2015 the applicant returned to [Country 1] for three months until September 2015. When he returned to India, he resided in [Town 2], from October 2015 until January 2016. He wanted to have a normal life, but it was nearly impossible for him as he had to hide from Hindu extremists. The local RSS members threatened to kill the applicant and came to look for him many times. The applicant could not apply for a new job as he was concerned for his safety.
·     The applicant claims that the Dharm Jagran Samiti (DJS) leader vowed to continue plans to restore Hindu glory. Some of the local Christians have converted to Hinduism. The applicant decided to leave India once he realised the gravity of the situation. He seeks a protection visa to avoid death threats in India. He will be killed if he returns to India.
·     He is depressed and traumatised and has trouble sleeping at night because of all the worry.
[3] This was stated to be 2014 however that appeared to be an error.
The delegate refused the application on 9 August 2016. The basis for the delegate’s refusal was that there was insufficient evidence to satisfy the delegate of the applicant’s claims, but that even if the claims had been accepted, the delegate considered that state protection would be available to the applicant.
There are no non-disclosure certificates on the Departmental file relating to the protection visa application.
The Tribunal
The applicant applied to the Tribunal for review of the decision on 2 September 2016. The applicant provided a copy of the delegate’s decision record to the Tribunal. The applicant submitted photos and screenshots of news reports and Wikipedia pages regarding rising Hindu nationalism, conversion of Christians to Hinduism, and violence between RSS and the Communist Party of India (Marxist) (CPIM).
The Tribunal also received the Departmental file relating to the applicant’s visitor visa; this was subject to a non-disclosure certificate discussed further below.
The Tribunal had initially listed the matter for an in-person hearing in March 2020. The Tribunal then postponed the hearing to a date to be fixed; at the time the COVID-19 virus was spreading. The pandemic led to the Administrative Appeals Tribunal deciding not to hold in person hearings. Later the Tribunal exercised its discretion to hold the hearing via MS Teams video. The Tribunal determined that it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. In consultation with the applicant who did not object, the postponed hearing was held using the MS Teams video format. Although there were some technical difficulties during the hearing which led to some repetition and delays, the Tribunal, applicant and interpreter were able to communicate, and the Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant told the Tribunal at the commencement of the hearing that he did not need to use the interpreter, but the interpreter could remain and give assistance if requested. The interpreter was used during the hearing; sometimes the applicant communicated in English. The interpreter had to leave at the scheduled time. There were a few additional matters the Tribunal had to raise with the applicant after the interpreter had left. The Tribunal noted that the applicant had been initially content to proceed in English, and that it had some further matters to put to him. The Tribunal said that the hearing could continue in English or if he wished the Tribunal could request a telephone interpreter. The applicant said he would proceed in English and if there was any doubt, he would tell the Tribunal. The Tribunal explained a further concern to the applicant (about the inconsistency between his protection visa application and other evidence concerning his employment) as well as whether there was a claim arising from documents provided with his visitor visa application form). At the end of the discussions in English, the Tribunal said it wanted to confirm that the applicant was satisfied that he had understood what had been said, and if not the Tribunal could still find a telephone interpreter or adjourn to another occasion with an interpreter. The applicant said that he was satisfied that he had understood what had been discussed and he did not need another opportunity with an interpreter. He then offered to send in the certificates relating to his employment.
The applicant’s evidence included, but was not limited to, the following:
·     The applicant told the Tribunal that he completed the protection visa application forms himself in his own handwriting, that he received no assistance, and he had signed the declaration on 11 March 2016 swearing that the contents were true. He also said that he had been solely responsible for preparing and typing his statement. All of his documents were true and correct, and nothing was missing.
·     The applicant told the Tribunal that he went to [Country 1] as he had a visitor’s visa (multiple entry) which was for 1 year’s duration. On his first visit he stayed 10-15 days and on his second visit he remained for about 3 months.
·     The applicant said that he had spent 2–3 lakh rupees (the equivalent he said of around $6000) inclusive of the ticket to come to Australia. This money came from his savings as he had been working for about 4 years. He had saved up enough money to come about 2 months prior to his departure, which is when he stopped working.
·     The applicant said that he is in contact with his family. They are all good. When they talk, they discuss his life in Australia, and he asks about their wellbeing and their life. When asked if there was anything else, he said they talk about COVID-19 situation back home; he did not mention anything else.
·     Although the applicant said he was a Christian, he made no suggestion of having any involvement in Christianity while in Australia. In this regard, when the Tribunal asked what the applicant had been doing in Australia, he referred to finding accommodation, various [jobs], and going out with friends. When asked if he did anything else, he said no. Although the Tribunal provided him with several opportunities to mention Christianity, he did not suggest any involvement with Christianity.
·     However, when the applicant said he had taken part in the conversion ceremony in India, he said he is still a Christian today. The Tribunal asked whether he does anything as a Christian in Australia and he said no, after coming here his lifestyle is different. Back home he went to church with some friends and that is how he moved to Christianity but then he moved to Australia and his work hours don’t permit him to indulge in any religious activities and he doesn’t have any friends here. The Tribunal put to him that he had earlier given evidence that he does have friends (with whom he goes out) and he agreed.
·     After his friends had led him into the conversion into Christianity he faced a lot of problems with his life thereafter, including that he is now away from family. The conversion ceremony from Hindu to Christianity was in Bangalore. He said it was in 2014, then he said no, it was in January 2015. When asked what happened at the ceremony, he said he and others were there, priests came and they placed their hand on their heads and the ceremony took place. The Tribunal asked what else happened and he said they mentioned his name and said he is converting to Christianity and they prayed with the name of Jesus and they asked if he was agreeable to being a Christian and he said yes. Nothing else occurred.
·     Previously he was a Hindu Temple-goer but everyone in his home area knows about his conversion to Christianity and they objected. The people in that area may oppose his presence and there is a possibility of them considering that he is a person that would do some damage to their beliefs. When the Tribunal asked if anything like that happened when he was there he said that he had arguments, an exchange of words with Hindus as they thought he was trying to try to convert to Christianity, and when the Tribunal asked if anything else had occurred he said no.
·     Mentally he is upset because of the situation he has gone through after his conversion to Christianity. His friends and their perception towards him are different because of his conversion, but in Australia he is more relaxed. The Tribunal noted his evidence that in Australia he is not undertaking any activities as a Christian in Australia and he said that is correct.
·     When the Tribunal suggested that he could have gone to live with his sister (who he said lived 600 km away) or go back to work in Bangalore, he said that he was worried and members of RSS and BJP have members everywhere.
The applicant told the Tribunal that he came to Australia with a visitor visa. He made the application. When asked if he received assistance he said “Yes, through an agency.” When asked if he told the truth in that application, he said yes, he did. The Tribunal put to the applicant that it had seen the visitor visa application file which contains a different history to what he had presented in his protection visa proceedings. The Tribunal noted that there was a non-disclosure certificate on parts of that file but that it will discuss potential adverse information. The Tribunal has considered the certificate which was issued pursuant to s.375A of the Act. The certificate does not provide a reason as to why the information in folios 79–81 should not be disclosed. The certificate did not specify, as required by s.375A, the reason why disclosure of the information would be contrary to the public interest. The Tribunal also notes that s.375A is in Part 5 of the Act. The Tribunal also considered whether it should treat the certificate as purporting to be issued under Part 7 of the Act, pursuant to ss.437 or 438 of the Act; similarly however these sections require the reason why disclosure of the information would be contrary to the public interest be specified in the certificate, which it was not. The Tribunal considers that the certificate was not valid. It put to the applicant at hearing relevant adverse information from the folios referred to in the certificate pursuant to s.424AA of the Act; it also put to the applicant the reference in the folios to suggestions of the entitles (a bank and [Company 2] that they would like to know more from the Department so they could investigate [there is no suggestion that there was any further contact between the Department and these entities] as discussed below.
The applicant provided photographs of documents after the hearing.
Further evidence and information are referred to below.
CONSIDERATION OF CLAIMS
Country of reference
The applicant produced a passport which shows that he is an Indian citizen. The Tribunal accepts that the applicant is a national of India, and that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is India.
The issue in this case is whether the applicant meets the definition of refugee or is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Concerns as to the credibility of the applicant’s claims
Relevant law as to whether the Tribunal is satisfied as to the applicant’s claims
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well‑founded’ or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70).
As Kirby J observed in Dranichnikov v MIMA:[4]
The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. [The High Court] has rejected that approach to the Tribunal’s duties. The function of the Tribunal … is to respond to the case that the applicant advances …[5]
[4] [2003] HCA 26 at [78], (2003) 77 ALJR 1088 at [1100].
[5] As cited in Sun v MIBP per Flick and Rangiah JJ at [69].
The Tribunal has a number of concerns with the case that this applicant has advanced, on the basis of inconsistent, changing and unlikely evidence. The Tribunal’s concerns are set out below.
Changing evidence as to his past harm and actions he took to avoid harm
Firstly, the Tribunal was concerned at the applicant’s changing evidence as to the past harm he suffered in India. At the hearing the applicant said that the worst thing that happened was that Hindu people had exchanged words with him. The Tribunal sought his confirmation that this was his evidence and he agreed. The Tribunal noted that this was inconsistent with his statement where he had claimed that he had been threatened to be killed. The applicant said he did say earlier at hearing that he had arguments with friends. The Tribunal put to him that this was different to saying, as he did in his statement, that he had been threatened to be killed by local RSS members who came to look for him many times to the extent that he could not even apply for a new job because he was fearful for his safety. In response, the applicant said there were arguments at festivals. The Tribunal does not consider that the applicant has explained the inconsistencies in his claims as to what he had experienced in India, as being threatened to be killed and being hunted by RSS is different to exchanging words with Hindus. The Tribunal has considered whether this could have been a language issue however it does not accept this especially considering the following new claim also made at hearing.

The applicant subsequently told the Tribunal that he was assaulted at festivals. The Tribunal asked for details about this and he said members of RSS usually conduct prayers during festivals and they did not like his presence at the vicinity of the Temple. On 2 occasions he was involved in arguments and scuffles; he was assaulted in May 2015 and in September 2015 (after returning from [Country 1]). After he was assaulted in May they saw him again in May and he was in fear of his life and that was why he went to [Country 1] again. The Tribunal noted that he waited to return to [Country 1]. He said that was because he had to get a [specified] visa and hence the delay. The Tribunal put to him that it was his earlier evidence that he had a 1- year multiple entry visa to go to [Country 1] which he had first used in March; if he was then in fear of his life in May he could have immediately returned to [Country 1] using that visa. He said that if he left on the tourist visa he couldn’t stay long; this explanation however was inconsistent with his earlier evidence that he had been given a 1-year visa that he obtained in March,[6] which would indicate that he could have stayed a further 10 months in [Country 1].
[6] It was his claim that the reason he went to [Country 1] was the problems and he told the Tribunal that the problems started in March 2015.
The Tribunal asked about the [specified] visa. He said he got it in June 2015 and it lasted for 1 year. The Tribunal suggested that he could have stayed in [Country 1]. He said he stayed there for 3 months however he couldn’t live there as it was a horrible workplace; this was not the lifestyle he wanted, it was like living in a camp and his educational background is different. The Tribunal is not however prepared to accept his new explanation that he sought a [specified] visa which explains his delay in leaving India again despite having been assaulted and being in fear for his life. In this regard the Tribunal notes that in his protection visa application he stated that his reason for going to [Country 1] on both occasions was “visitor”; he made no mention in that form (nor at hearing) that he had worked for 3 months as a [Occupation 2] in [Country 1] (despite the Tribunal having discussed his work with him in some detail); and his initial evidence to the Tribunal was that he travelled to [Country 1] on both occasions on the same multiple entry visitor visa (not a [specified] visa).The Tribunal considers that this new explanation undermines the applicant’s credibility.
The Tribunal considers that the applicant did not offer a satisfactory explanation as to why, if he had been assaulted and was genuinely fearful of being killed, he did not immediately return to [Country 1] in May 2015.
The Tribunal referred to s.423A of the Act in the context of the 2 new claims (that he couldn’t stay in [Country 1] and that he was assaulted in India). The applicant said that in his written application he referred to the [Country 1] trip, and to the assaults. The Tribunal acknowledges that he mentioned he travelled to [Country 1]; he did not however claim that he could not stay there. Concerning the new claim that he was assaulted in India, the applicant later told the Tribunal it was on page 3 of his statement; the Tribunal then read out page 3 of his statement made to the Department, as he said he did not have a copy with him. After hearing this, the applicant said that, when he said in the statement that the RSS threatened to kill him, he meant to say that they had assaulted him too. The Tribunal has considered that English is not his first language, and that he did not use the services of a registered migration agent, but given the level of detail he provided about other matters, and the importance of a claim of multiple assaults, and his evidence to the Tribunal that his written materials were correct and that nothing was missing, it is not prepared to accept that there is a reasonable explanation as to why he did not disclose these matters to the Department.
The Tribunal considers that the applicant has not provided a reasonable explanation as to why these claims were not made before the primary decision was made. Therefore, the Tribunal draws an adverse inference about the credibility of these new claims.
Even if it did not draw an adverse inference by operation of s.423A of the Act, the Tribunal would, however, have drawn an adverse inference as to the credibility of these claims of past harm and why he could not remain in [Country 1] despite having a visa for 1 year; because the applicant only made these claims after his application was refused by the Department, and the evidence given in relation to these claims contains inconsistencies.
The Tribunal has taken into account that in the applicant’s pre-hearing submission to the Tribunal there was a typed note stating that after the conversion he faced attack from unknown Hindus as he was living in Kannur which is the head of the party spirit. This assertion however was made after the delegate had rejected his claims, and this claim was contradicted by his initial evidence at hearing that the worst thing that happened to him was that he had exchanged words with Hindus.
Secondly, the applicant provided inconsistent evidence about his work, which was directly relevant to his claim to have feared persecution in India, as well as in relation to his credibility generally. The applicant left for Australia in February 2016. His written claims were that he only worked in a single job, in Bangalore, until December 2014, and that he was so scared of harm that he didn’t look for another job right up until he left in February 2016.
However, at hearing, he told the Tribunal that he was working right up until 2 months before he left for Australia (thus until December 2015/January 2016); this undermined his claims that he was too scared to work after December 2014 because of a fear of persecution. When this was put to the applicant, his evidence about his work was contradictory, but he did not offer an explanation as for this inconsistency. The Tribunal considers that if the applicant genuinely feared persecution and harm for reasons of conversion to the extent that he did not seek to get another job from December 2014, he would not have told the Tribunal that he continued working right up until 2 months before he came to Australia, by which time he had accumulated the necessary savings.
Further, the Tribunal was concerned that the applicant was prepared to give different evidence about his work at different times (and for different visa applications). In this regard:
·     In his visitor visa application (December 2015) and supporting documents (including correspondence/documents from [Company 2], a curriculum vitae, and bank accounts in the applicant’s name showing his salary being paid by [Company 2]) it recorded that he worked as a [Occupation 3] at [Company 2].
·     In his protection visa application form, in answer to the question requesting details of all employment and unemployment, including all paid/unpaid/work experience/ gaps/breaks in employment, he stated that he only worked for one company in India: [Company 1] in Bangalore from August 2011 until December 2014.
· At the hearing he said that he started work at [Company 1] in 2012, and he worked there for 2 years [2014], and then he got a job at [Company 3], and he worked there for 1 year or so until he left India [2016]. He then said that he also worked at [Company 4] and at [Company 2]. His evidence was thus that he worked beyond December 2014 (contrary to his written claims that he was too scared to work).
·     The Department made enquiries and found that the applicant had never worked at [Company 2] and that the documents submitted in support of his visitor visa application in this regard including his bank accounts (containing information such as his salary being paid into the bank account) were not genuine.
Inconsistencies in evidence given in the protection visa proceedings: The Tribunal noted that his protection visa application made no mention of the other jobs he had claimed to have had at hearing, and it put to the applicant its concerns with the credibility of the new jobs he claimed to have had at hearing (s.423A of the Act). When the Tribunal showed him his protection visa application form, he agreed that he had not listed any work at [Company 4], [Company 2] or [Company 3]. He did not explain why. Instead he referred to the documentary evidence he could provide[7] which he said was evidence of his past employment. He told the Tribunal at hearing that he had the documents with him, but they could not easily be seen via video and the Tribunal allowed the applicant further time after the hearing to produce them. The photographs of documents stated that he had worked at [Company 1] from August 2011 to 20 December 2013, [Company 3] from 23 December 2013 to 24 July 2014, and [Company 4] until 29 November 2014.[8] If this was the case, the Tribunal does not understand, and the applicant did not explain, why he claimed to have only worked for one company in his protection visa application form. The Tribunal considers that the applicant has not provided a reasonable explanation as to why he did not disclose that he had worked for these companies when his application was before the Department.
[7] In the applicant’s pre-hearing submissions, he said he had attached certificates relating to his education and career but nothing of that description was attached.
[8] The applicant provided photographs of six documents after the hearing: a ‘Transfer Certificate’ from [an education provider] stating that the applicant has completed his [course in] March 2010;
a Testamur for a [Qualification 2] from [education provider], showing the applicant graduated in 2011;
a testamur from [a] University for the applicant’s [Qualification 1], dated 1 October 2013;
a letter from [Company 1] dated 20 December 2013 stating that the applicant worked as a [Occupation 1] from August 2011 to 20 December 2013 [labelled by the applicant as “1^st workplace];
a letter from [Company 3] to the applicant dated 24 July 2014 stating that the applicant had worked with the company as “[Position 1]”, the date he resigned [labelled by the applicant as “2^nd workplace];
a letter from [Company 4], Bangalore to the applicant dated 18 November 2014, stating that they have accepted the applicant’s resignation with immediate effect, and he will be relieved from his responsibilities on 29 November 2014;
The Tribunal considers that the applicant has not provided a reasonable explanation as to why this claim was not made before the primary decision was made. Therefore, the Tribunal draws an adverse inference about the credibility of this new claim.
Even if it did not draw an adverse inference by operation of s.423A of the Act, the Tribunal would, however, have drawn an adverse inference as to the credibility of this claim given the inconsistencies in his evidence. The Tribunal has considered the documents that the applicant provided which indicated that he worked at [Company 3], [Company 4], and [Company 1] (the last date of work is November 2014; he did not produce a document from [Company 2]). These documents do not support that he worked until 2 months before he came to Australia, December 2015/January 2016). When the Tribunal asked the applicant why he resigned from [Company 3] and [Company 4], he said that this was out of fear that they would come to him. The letters he produced show that he resigned from these companies in July and November 2014. The Tribunal put to him that if this was the case, it did not make any sense because he had continued to work: he had claimed that he had another job at [Company 2], and also that he had worked right up until 2 months before coming to Australia. His response was to agree, and to say that this was just a part-time job. The Tribunal notes that this evidence contradicts his earlier evidence (that he worked at [Company 3] up until he came to Australia). It also notes that the applicant claimed to have only started to have problems after he converted in January 2015, which undermines his explanation that the reason why he resigned from the 2 companies [Company 3] and [Company 4] (in June and November 2014 according to his documentary evidence) was due to fear of persecution. This also undermines the reliability of his documentary evidence. The applicant himself (set out below) indicated that false documents are available from India, and the Tribunal is not prepared to place any weight on the documents produced by the applicant.
Documents from the visitor visa file: At hearing the Tribunal noted that the applicant had given information in support of his visitor visa application, namely that he was a [Occupation 3] with [Company 2], which was contradicted by information sourced by the Department. The Tribunal put the relevant information from the visitor visa file pursuant to s.424AA of the Act and said that the information indicated that he was prepared to be untruthful when seeking to obtain a visa. In response, he said that he worked part-time at [Company 2] and he doesn’t know what information they gave in support of the visa. Concerning the visitor visa application form he agreed that he signed it, he said that the only information he provided was his personal particulars. The Tribunal put to him that he would have read what was in the form before he signed it, he did not suggest that he did not read it, nor did he say that the documents provided in support of the visitor visa application were correct; instead he said that he was told that the information was just being provided to support the visa application. The Tribunal put to him that he can read English, and it may be difficult for the Tribunal to accept that he did not know what he was claiming in his application seeking to come to Australia. He said that he did not work as is claimed in the visitor visa application, he just gave basic details to [Company 2] and they created documents on his behalf; they were involved in the creation of documents that were not true. He said that he can provide documents that relate to his actual work. The Tribunal notes that when he did provide documents after the hearing, he did not provide any which indicated that he worked with [Company 2].
The Tribunal considers that the applicant’s responses indicate that he was prepared to rely upon false information to obtain a visa to come to Australia. While people fearing persecution may understandably rely upon false information to escape harm, when having regard to its other concerns, the Tribunal has doubts that the applicant was escaping harm. The Tribunal considers that the evidence indicates that the applicant has not been truthful in either visa application about his work in India, which undermines his credibility. His claim that he could not get a job after December 2014 because of a fear of persecution, is undermined by his evidence at hearing.
Thirdly, the Tribunal was concerned with the inconsistencies between his written material and his evidence at hearing about the Bible. It was the applicant’s written claim that he had spent months reading a significant portion of the Bible, namely most of the New Testament and a large portion of the Old Testament.
When the Tribunal asked him about the Bible, he said he has to believe in it and it stipulates about a life of a good person. When asked how, he said you must “Believe in God and don’t commit sins.” What the Tribunal asked what else he could say about the Bible he said it gives a good outlook of a good human being. When the Tribunal asked if there was anything else he could say as to how it gives a good outlook of a good human being, apart from what he has said, he said he is supposed to mind his own business and he is not supposed to disturb anyone else. When asked if there was anything else, he knows about the Bible he said that this is all he knows.
The Tribunal asked the applicant what the structure of the Bible is, what is inside it; he said that it is a book that was written by the Almighty some 2000 years ago which explains the life of a human being. The Tribunal asked if there were any chapters in the book, or otherwise how it is set out, and he said yes, the contents are explained in various chapters. Following this he was silent. He then said the Bible says not to create a problem or disturb anyone, just to believe in God. The Tribunal noted that this was like what he had said before and asked was there anything else he knows about the Bible. He said it states that you should not steal or tell lies. The Tribunal asked if there were any particular chapters in the Bible he could refer to and he said he doesn’t know, he only knows so much and he has already told the Tribunal what he knows.
The Tribunal was concerned that the applicant did not tell the Tribunal that the Bible had the Old or New Testament, given his claims. It was only after the Tribunal later expressed its concern and prompted him that he mentioned the Old and New Testament. When the Tribunal asked what they are, he said that they are 2 versions of a person’s lifestyle, how you are meant to live. When asked whose lifestyle, he did not know.
Further discussions about his knowledge of the Bible are referred to below. The Tribunal considers however that the applicant’s evidence undermines his written claims of his involvement in reading the Bible and becoming so committed to Christianity to the extent that he decided to change his religion.
Further, the Tribunal was also concerned that his claims about his commitment to Christianity were undermined by his evidence to the Tribunal. In addition to his claimed period of months of reading the Bible, his written claims were that he attended a series of meetings explaining Christianity, he attended church every weekend in India, he encouraged others to read the Bible and he had accepted Christianity in his heart. He told the Tribunal that he had undergone a conversion ceremony where he had become a Christian. Given his claim that his father was a Hindu priest, and that he had taken such a significant step to change his religion (and that it was his claim that this was a meaningful decision), the Tribunal considered that it would be not unreasonable for the applicant to have been able to tell the Tribunal more about Christianity. The Tribunal was concerned however with the applicant’s evidence at hearing in this regard. When the Tribunal asked what it meant to be a Christian, he said that he is to believe in the Bible, in Jesus and also to live harmoniously. Apart from his evidence in paragraphs 39 and 40 above, he was unable to tell the Tribunal anything else about Christianity.
The Tribunal put to him that although it had not made up its mind, it may not accept that he is a Christian and it gave him the opportunity to give further evidence about his knowledge of Christianity. He said there is nothing more other than what he has said to the Tribunal.
The Tribunal asked the applicant if he wanted to comment and he said that he was born as a Hindu and he was a Hindu until [age] years and he left for Bangalore aged [age] years and during that short period of time is when he was attracted to Christianity and he was exposed to this and he was mentally upset and was in a dilemma as to whether he should go towards Christianity or Hinduism. He said that he is now [age] years old. He was involved in Christianity in Bangalore for a short period and after he arrived in Australia he was not involved at all. The conversion happened because of the friends he met in Bangalore otherwise it would not have happened and that is the reason why he is lacking knowledge in Christianity and the Bible. The Tribunal said that there are chapters in the Bible such as Genesis, Matthew, Mark, Luke and John, and it would think that if he had read the Bible as claimed in the statement he would have had an idea of this. He said that the only concept he had was to believe in God and live a clean life without giving anyone else any problems. That is all he adopted.

The Tribunal is conscious that a person’s decision to change or adopt a particular religion does not require a certain level of knowledge of that religion. It is also conscious that not attending church or not reading the Bible does not mean that a person is not a Christian. However, the Tribunal has considered that the applicant’s knowledge of Christianity appears to be minimal and general, and he has not indicated any involvement in any Christian activities even once while in Australia during the last 4 years. When considering also his inconsistent evidence in relation to the Bible, as well as his failure to show interest in or engage in any Christian activities while in Australia, the Tribunal finds it difficult to accept that he made a significant life decision in India to change his religion and convert to Christianity.
Credibility summary
Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility as discussed above lead the Tribunal to conclude that the applicant has not been a witness of truth when making claims in support of a visa to come to or remain in Australia.
Findings on the applicant’s claims
Son of a Hindu priest: The applicant asserted and provided photos which he said showed his father being a priest at the local temple and at a festival. The Tribunal was unable to tell from the photos that this was the case, however the Tribunal is prepared to give the applicant the benefit of the doubt and accept that the applicant is a Hindu and a Brahmin and that his father is a priest at a local temple, and that when the applicant was younger, he helped his father. He did not claim that this led him to any difficulties other than in relation to his claim to be a Christian (which, for the reasons set out below, the Tribunal has not accepted).
Christian convert (actual/imputed): The Tribunal put to the applicant at hearing that it has not made up its mind but that it may not accept that he is a Christian convert as claimed. The Tribunal noted that the Department of Foreign Affairs and Trade (DFAT) said that DFAT assesses that most Christians live day to day without societal discrimination or violence. The Tribunal said that it also accepts that more serious incidents can occur, and it notes that the DFAT report states that a rise in Hindu nationalism has coincided with increasing incidents of violence and discrimination against Christians.[9] The Tribunal said that even if it accepted he was a convert, it is his evidence that he had not practiced in Australia and it did not see any reason why he would practice Christianity back in India. The applicant did not tell the Tribunal that he would express Christianity or undertake Christian activities in India. He said that he faces harm because people in his hometown are aware of his conversion and if they know he is back there is a possibility he will be harmed, and this will disturb his mental health.
[9]DFAT, Country Information Report – India, 17 October 2018 – some extracts are provided at Annexure B.
On the basis of the credibility concerns, the Tribunal does not accept that the applicant underwent a conversion ceremony or was imputed as having done so or of being a Christian by BJP, RSS, and VHP or other party members or by people in his home area or by anyone. The Tribunal does not accept that Hindu nationalists have threatened to kill him due to his conversion to Christianity, nor that they approached his father or isolated him or his family.
The Tribunal notes that the applicant produced written material relating to Hindu nationalism but his only claim to face harm in this regard was because of his claim to have converted to Christianity, which the Tribunal does not accept. The Tribunal is not satisfied on the evidence before it that the applicant faces a real chance of serious harm or a real risk of significant harm due to Hindu nationalism.
It does not accept that he travelled to [Country 1] (or Australia) as a result of fear. It does not accept that he experienced fear or worry or depression due to the claimed events in India as it does not accept that those events occurred. The applicant’s reference to his mental health being adversely affected was tied to his claims, which the Tribunal has not accepted. There is no medical evidence before the Tribunal that the applicant is suffering from any mental health condition. The Tribunal does not accept that the applicant has been traumatised by past events nor that if he goes back to India, he will face a fear of, or actual, persecution which will traumatise him.
Claim about work: At hearing the applicant told the Tribunal that he is out of his profession, he had been in India working for 3–4 years after he qualified but that after coming to Australia he has not been working in the field relating to his qualifications. He also said that he had not tried to obtain such work in Australia. He said that if he goes back, he doesn’t think he could focus on work relating to his previous qualifications. The Tribunal put to him that he was educated and qualified and that it would seem that he would be able to get some work in India. He agreed and said yes, he can, and he was working. The Tribunal is not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm arising from the applicant seeking or obtaining work in India.
Use of false documents: The Tribunal noted a reference in the visitor visa documents which indicated that when the bank and [Company 2] were contacted by the Department, they both indicated that they did not know the applicant and they would like more information from the Department to investigate further. There is no evidence before the Tribunal that the Department gave any further information in this regard. The Tribunal put to the applicant that no one had been asking questions of his family in this regard, such as the police, and he agreed. The applicant had said that [Company 2] were involved in the creation of the false documents. The Tribunal suggested to the applicant that if they were involved in the creation of false documents it is not likely they would then seek to have him investigated; further it seemed speculative that the bank had or would make any effort to investigate him in relation to the false bank accounts which had been produced in 2016 in support of his visitor visa application form. The Tribunal noted that in all this time no one has contacted him, or the family nor was there any indication that he was being investigated and he agreed. The applicant did not express any concerns that he may face harm because he had relied upon false documents in obtaining his visa to come to Australia, and there was no evidence before the Tribunal to suggest that he faced a real chance of serious harm or a real risk of significant harm for this reason.
General country conditions: The Tribunal said at hearing that it has to have regard to the DFAT Report and if it does not accept his claims it may find that the applicant does not face a real chance of serious harm or real risk of significant harm. When asked if he wanted to say anything in response, he said that he is living in fear, he was mentally “down” about the fear. The Tribunal has not accepted the claims made by the applicant which is the reason he says he was living in fear. The Tribunal is not satisfied that the country conditions as set out in the DFAT Report mean that the applicant faces a real chance of serious harm or a real risk of significant harm including for example from general violence arising from Hindu nationalism or clashes between parties. The Tribunal is not satisfied that the applicant faces a real chance of serious harm or real risk of significant harm for any reason in the reasonably foreseeable future.
Summary: The Tribunal has considered the applicant’s claims individually and on a cumulative basis, having regard to the findings that the applicant is not a credible witness concerning past events or future harm feared, as well as the relevant country information, other than those claims accepted above. The Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of persecution as a refugee for any of the reasons put forward by him.
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) (see Annexure A), which provides a summary of the relevant terms).
The Tribunal does not accept that the applicant has experienced any adverse interest or harm as claimed nor that he is an actual or imputed Christian convert. The Tribunal does not accept that there is a reason for him to attract the adverse attention of Hindu nationalists. The Tribunal has found that the applicant is not a witness of truth concerning his claims that he faces a real risk of significant harm.
The applicant has worked in India and in Australia and the Tribunal is not satisfied that he will not be able to work and survive in India. It is not satisfied that he faces a real risk of experiencing significant harm for any reason referred to above, including general violence or clashes between parties nor that there is a real risk that he faces significant harm because he relied upon false documents to obtain a visitor visa to come to Australia.
On the evidence presently before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case India, there is a real risk that he will suffer significant harm for the purposes of s.36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christine Cody
Member

ANNEXURE A - CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves 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 below.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted below.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)    that is not inconsistent with Article 7 of the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)    that is not inconsistent with Article 7 of the Covenant; or
(b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
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.
…
5H   Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:    For the meaning of well-founded fear of persecution, see section 5J.
…
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 the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K   Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:    Section 5G may be relevant for determining family relationships for the purposes of this section.
5L   Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)   the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36    Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…
ANNEXURE B – DFAT REPORT EXTRACTS – INDIA
Religion
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.
Anti-conversion laws exist in Arunachal Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Odisha, Rajasthan and Uttarakhand. Six of these states enforce the laws; there is no implementing legislation for the anti-conversion law in Arunachal Pradesh, Rajasthan and Jharkhand. The laws prohibit conversion based on force, allurement, inducement or fraud, but sources report that there are instances where the laws have applied to Muslims and Christians engaged in proselytization.
…
Christians
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

[2020] AATA 4842

28 September 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction