1614051 (Refugee)

1614051 (Refugee) [2019] AATA 5261 (22 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1614051
COUNTRY OF REFERENCE:                   India
MEMBER:Hugh Sanderson
DATE:22 November 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 November 2019 at 4:18pm
CATCHWORDS
REFUGEE – protection visa – India – religion – particular social group – Muslim butcher selling meat to Muslims and Dalits – attacks and threats by Hindu ‘cow vigilantes’ – lengthy residence in another country – voluntary returns to India – previous Australian visa without travelling here – official and societal conditions in Tamil Nadu – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 5H(1), 36, 65
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 17 August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of India, applied for the visa on 29 March 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant faced a real chance of persecution in India and was not satisfied there was a real risk the applicant would suffer any significant harm in India.
Background
The applicant was born in India and is currently [age] years old. He has provided to the Department a copy of his Indian passport. He is married with two children, currently [ages] years old. His wife and children reside in India. His mother and [a number of siblings] also continue to live in India. He has [another sibling] who the applicant believes currently lives in [Country 1].
The applicant was granted a [temporary] visa [in] December 2007. He did not enter Australia on that visa. He was granted [another temporary] visa [in] January 2016. He entered Australia [in] March 2016. He has not departed Australia since then.
The applicant provided a statement in support of his application where he made the following claims:
·He used to live with his parents in [Village], [Town 1] and was involved in their traditional family business selling lamb and beef, mainly to people of the Dalit caste;
·In the 1980s and 1990s the Bharatiya Janata Party (BJP) became more active in their area and the Hindu agitators targeted Dalits and Muslims and they started threatening his father for selling meat;
·In 1997, the applicant’s father died and the applicant took over the running of the business;
·In 1998 people came and threatened him and he ran away and hid from them;
·His mother was threatened as well, but as she was old, they did nothing to her but told her that if the applicant returned it would be a problem;
·To escape persecution, the applicant relocated to [Town 2];
·In April 2000, the applicant returned to his home town to visit his mother and he was identified by a person from the BJP and beaten up causing him an injury to the [body part];
·He was told that if he goes to the police the BJP have informers everywhere and he would suffer if he did that;
·The applicant had an operation [in] May 2000 on his [associated body part] as a result of the injuries he suffered from the beating;
·[In] July 2000 the applicant travelled to [Country 2] to escape persecution in India;
·[Later in] July 2000 he travelled to [Country 3] where his [sibling] was living and he commenced work selling [items];
·In 2004 he started a business with his [sibling] in [Country 3] selling [items];
·The applicant occasionally returned to India over this period but would always be in hiding as he feared persecution;
·[In] February 2008 the applicant married his wife in India, and while there, he was told by people that the BGP was searching for him in his village;
·[In] November 2011 his [child] was born in India;
·[In] December 2013 his second [child] was born in [Country 3];
·The applicant returned to India in July 2014 to visit his mother and he had no problems then;
·When the applicant returned to India in January 2015 someone identified him [in] February 2015 when he was driving his car in his mother’s home town;
·About 20 to 30 people from the BJP broke into his mother’s home and later threatened his mother saying that if the applicant returned he would have a very big problem;
·The applicant sent his family to live in Pudukkottai, but [in] April 2015 people from the BJP and Hindu Munnani found his wife and scolded her with bad words and so she moved to live with her brother in [Town 3] where she continues to reside with their children;
·When the applicant was on a business trip to [Country 4] [in] March 2016, Marathi people came to where he lived with some of his staff who were sleeping and asked them where the cow slaughter was and threatened him;
·[Later in] March 2016 two Marathi people came searching for the applicant again in [Country 3];
·The applicant was afraid of living in [Country 3] because many Indian and [Country 5] Mafia live there and want to attack him; and
·Only in Australia could he find safety from the people who are threatening him.
The delegate who considered the application noted the country information which indicated that overall there was a low level of official discrimination on the basis of religion. It was noted that in the 2001 census over 138 million people in India identified themselves as Muslim and that many Muslims are found in leadership positions in government and business.
The delegate noted the protections that are available by the authorities which indicate the applicant would be provided with a reasonable level of protection. Although this would not be an absolute protection, the delegate found the authorities take reasonable measures to protect the lives and safety of their citizens. The delegate also found the claimed risk of harm was localised and the applicant would be able to relocate within India and specifically to Delhi.
Taking these matters into account, the delegate was not satisfied the applicant met the definition of a refugee in s.5H(1) of the Act. The delegate was also not satisfied that as a necessary and foreseeable consequence of the applicant being removed to India there was a real risk he would suffer significant harm and therefore did not meet the complementary protection criteria in s.36(2)(aa) of the Act. Accordingly, the application was refused.
Information to the Tribunal
The applicant provided a statement to the Tribunal where he repeated the claims he had previously made to the Department. He provided a letter from Dr [A] dated [October] 2018 repeating the claim made by the applicant that he had been assaulted in India in May 2000 and kicked in the [body part] and had a severe swelling of his [associated body part] after the injury. On examination, the doctor reported a small scar from an operation the applicant had after the injury, likely to be draining a haematoma. He stated that there were no long-term complications suffered by the applicant.
The applicant appeared before the Tribunal on 11 November 2019 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Tamil (Indian) and English languages.
The applicant provided details of where he was living in Australia. He said that he had no other family members living in Australia. He believed his [sibling] had been living in [Country 1] for the last five years. He said that despite the fact that he had been living and working with his [sibling] in [Country 3], he did not know why his [sibling] moved to [Country 1]. He said that he never talked about it because they just talked about business. He said his [sibling] first moved to [Country 3] in 1991 or 1992 after having an argument with their father.
The applicant said that his mother had been living with his wife and two children for the last one-and-a-half to two years. He said that before that his mother had been living on his parents’ property. He said that his [sibling] still visits the property to make sure that there are no problems there. He said that his two [siblings] who live in India are married with children. He confirmed that none of his family members have any problems living in India.
The applicant said that when his father died in August 1997 the butcher shop they had was closed. He said that before this time people had scolded his father for having a butcher shop, but did nothing more. In January or February 1998 he started to clean the shop again and then people told him not to open the shop and so he did not open the shop again. He said that after this people came looking for him and he went into hiding. He said the butcher shop has not operated since the death of his father in August 1997.
As the shop was not operating since the death of his father in August 1997, the applicant said that he was working on the family farm with [animals] and selling [produce]. He said that his mother, [siblings] and labourers worked on the farm. He said that he left the farm in 1998.
The applicant claimed that because he had been threatened about opening the shop he travelled to [Town 2] and stayed there. He said that he worked as a [vehicle] driver. He said that he had no problems living in [Town 2]. The applicant said that when he returned to [Village] in June 2000 he was identified and attacked by a group of people. He was knocked unconscious and woke up in hospital. He then arranged to travel to [Country 2] and then when he found out his brother was living in [Country 3], he moved there.
The applicant provided details of when he returned to India. He said that he returned to India in 2005 for two or three weeks, in 2008 for three months to marry his wife and in 2012 after his [child] was born. He said that it was only in his home village ([Village]) that he had problems. He said that no one in his family currently lives in his home village. His [sibling] lives about 5 km away with other Muslims and so [s/he] has no problems. He said that [s/he] visits the family property to make sure that there are no problems.
The Tribunal put to the applicant that his information was that the only problems he had were in his home village and that it was not plausible that he would face any persecution or harm if he returned to India at this time. The applicant said that Tamil Nadu is a peaceful place. He said that in the 1980s and 1990s there were tensions and there were bomb blasts and riots in 1997 and 1998. He said that after the riots the authorities arrested people from both sides and restored order. He said that it had been peaceful after that. He said that although it had been peaceful, there are certain things you cannot do. He said that although it is peaceful, he has a fear that if he is living nearby he may have a problem.
The Tribunal noted the applicant’s passport showed that he had been granted a [temporary] visa to enter Australia in 2007 but did not use this visa. The Tribunal put to the applicant that if he had any fear for his safety and had been granted a [temporary] visa that he would have entered Australia and applied for a Protection visa at that time. The fact that he did not do this indicates that he does not have any genuine reason why he cannot return to India. The applicant said that he was planning to visit Australia but as the leave he had from his work was over he could not travel to Australia. He said that as he was living in [Country 3] it was safe for him at that time. He confirmed that he had no right to reside in [Country 3] and that people from his work were looking after him by applying for a business visa each year.
The Tribunal noted the visa granted to him to enter [Country 6] in 2016. The applicant said that he had Hindus looking for him in [Country 3] so he just left the country to travel to Australia without thinking of travelling to [Country 6]. He said that a person in politics in India was looking for him in [Country 3] because he had been the one who assaulted him in 1998 and he was now looking for him. The Tribunal put to the applicant that it was not plausible that a person would be looking for him because he assaulted him 20 years previously. The applicant said that he did not know the reason why this person was looking for him but it meant that he could not move anywhere in India.
The Tribunal noted that the applicant had lived in other areas in Tamil Nadu and had not had any difficulties living there. Tribunal noted other members of the applicant’s family were living in Tamil Nadu and he reported they had no problems. The applicant claimed that although they had no problems that people were looking for him and were asking them about him.
The Tribunal referred to the country information (cited below) which indicated that as a Muslim the applicant faced a low level of official and societal discrimination and would not be targeted as a suspected butcher of cows in Tamil Nadu. The applicant said that he believed Tamil Nadu was very peaceful. He said that there were problems in late 1990s and early 2000s but there are no tensions now. He said that despite this, in the south of India small incidents happen and that people might attack him. He said that he still lives in fear.
The Tribunal noted that he claimed the people targeting him were from the BJP and that the police did not assist him because they were sympathetic to the BJP. The Tribunal noted the BJP had not been in any coalition in power in Tamil Nadu since 2004. The applicant said that this was true, but the person from the BJP he was fearful of was now in [Country 2] and still has influence in other areas in India.
The Tribunal summarised concerns about different aspects of the applicant’s claim, including the fact that although he claimed that he was admitted to hospital and attempted to make a police complaint there were no documents to support this claim. The applicant claimed that he had made a complaint to the police but has no documents as he thought he would not need to apply for a refugee visa. He said that he did not keep any documents at his home and after he got to [Country 3] he thought he could live safely. He said that his mother was uneducated so did not realise she needed to keep the documents.
The applicant again confirmed that Tamil Nadu was peaceful and that the BJP were not in power. He said that despite this small incidents happen such as stopping Muslims sacrificing animals. He said that the Hindu Front is very active although they are not supported by the people.
After the hearing the applicant provided an internet link to a timesnownews.com report dated [July] 2019 reporting members of a fringe group Hindu Makkal Katchi had attacked a person for posting a picture of himself consuming beef soup. The applicant claimed there were many fringe groups working all around Tamil Nadu.
The applicant provided documents showing his wife and children were living in [Town 3]. There was no claim made that they or anyone else in the home village faced any danger or persecution.
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 in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
On the basis of the applicant’s identity documents, including his passport and evidence provided at the hearing before the Tribunal, the Tribunal accepts that the applicant is a national of India. Therefore, for the purposes of s.36(a) of the Act and the meaning of refugee in s.5H of the Act, the Tribunal accepts that India is the country of nationality. For the purposes of s.36(aa) of the Act the Tribunal accepts that India is the receiving country.
The basis of the applicant’s claim is that his family had worked in his home village of [Village] as sellers of meat for generations. His family are Muslims and they would often sell meet to Dalit people in the village. His family did not have any problems operating this business until the 1980s when the BJP and Hindu Munnani became more active in the area. He claims that they started threatening his father as the owner of a butcher shop, however, his father continued to operate the butcher shop until he died in August 1997. When the applicant was cleaning the shop with the intention to open it again in January or February 1998 people became angry as they did not want him to open the shop again and the applicant ran away to hide. He claims to have been threatened and assaulted whenever he returned to his home village of [Village] since that time and also claims he has been threatened by Hindus while he has been living in [Country 3].

The Tribunal accepts that the applicant may have been threatened in January or February 1998 when he was taking steps to clean and possibly reopen his father’s shop after it had been closed for almost six months by Hindus who were opposed to the killing or harming of cows. The Tribunal does not accept that since that time the applicant has been subject to any assault or harm for any reason associated with him being a Muslim, associated with the killing of cows or any claimed support he may have for the Dalit caste. The Tribunal does not accept that the applicant faces a real chance of persecution or that as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that the non-citizen will suffer significant harm.
The applicant claimed that he was assaulted in 2000 when he returned to his village. He has provided no supporting information to corroborate this claim. There are no reports or information which would indicate that any Muslim or any other person had been subject to any assault or harassment from any member of the BJP or Hindu Munnani or any other group in his village for any reason. The basis of the prejudice against the applicant was that he was in the process of cleaning his father’s butcher shop with the intention of reopening it. There is nothing to indicate that two years after the shop had ceased operating there is any indication that the applicant would have been perceived as intending to open the shop again.
The Tribunal does not accept that if the basis of any prejudice against the applicant was that he had been involved with and was planning to reopen his father’s butcher shop and that the shop had closed more than two years prior to the claimed assault that the applicant would have been of any interest to any non-Muslim who was against him opening a butcher shop in the village.
The applicant claimed that he was the victim of an assault by 10 or 15 people who beat his face and kicked him in the [body part]. He claimed that he was knocked unconscious and taken to hospital and was required to have surgery on his hips and his hand. He was also required to have surgery on his [associated body part]. The applicant provided a letter from Dr [A] dated [April] 2018 repeating the applicant’s claim that he was assaulted in India in May 2000. The doctor reported that he had a small scar from the operation but no long-term complications. It was suspected that he may have suffered a haematoma which was required to be drained.
The Tribunal does not accept that if the applicant were required to be admitted to hospital as a result of an assault in April or May 2000 that the applicant would not be able to provide documentation from the hospital or some other contemporaneous information confirming the injury suffered by the applicant and the cause of the injuries. The report from Dr [A] merely repeats claims made by the applicant as to how he suffered the injury and the Tribunal places no weight on this letter as supporting the applicant’s claims. The applicant claimed that he and his mother have not kept the records from the hospital reporting the assault or the injuries he suffered arising from the alleged assault. There appears to have been nothing done by the applicant or any members of his family who continue to reside in India to obtain from the hospital any reports held by them as to the alleged assault or details of the injuries suffered by the applicant. If the applicant had suffered the injuries he claims arising from an assault it would be expected that he would have been able to access the hospital records to provide this information if the claims were genuine.
Apart from confirming the fact that the applicant had an operation on his [associated body part] to drain a haematoma, there is no other information to confirm the claimed injuries the applicant suffered, including having to have stitches on his hips and right hand. The Tribunal accepts that the applicant had an operation on his [associated body part] to drain a haematoma, but does not accept that this injury was caused as a result of an assault on him as he has alleged. As the applicant was working on a farm, there are a multitude of reasons why the applicant may have suffered an injury to the [associated body part]. The fact that he has a scar from an operation to drain a haematoma does not provide convincing evidence to show that he was ever the victim of an assault.
The applicant claimed that no report was made to the police at this time because he was told that the BJP and Hindu Munnani had informers everywhere. The Tribunal does not accept that if the applicant had been subject to an assault which required him to be hospitalised that he would not have been able to make a report to the police of that assault. The Tribunal does not accept that even if the police did not take any action in response to the complaint for any reason the applicant would not have at least been able to lodge a First Incident Report with the police.
The applicant claimed that after this assault he was so fearful for his safety that he travelled to [Country 2] and then to [Country 3] and was primarily living there after that time. Despite claiming he left India in fear for his safety, the applicant returned to India on multiple occasions after travelling to [Country 2] and [Country 3] in 2000. He returned in 2005, 2008 and 2012. The applicant claims that each time he returned to India he was threatened and was in fear for his safety.
The Tribunal does not accept that if the applicant faced persecution or was in fear for his safety that he would have returned to India and in particular his home village for visits while he was able to continue to live and work in [Country 3]. The fact that the applicant returned to India on a number of occasions while he was living in [Country 3] undermines his claim that he faced any persecution or there was a real risk that he would suffer harm in India.
The applicant was granted a [temporary] visa to be able to enter Australia in 2007. The applicant said that he did not enter Australia on this visa as his holiday period had passed before he had the opportunity to travel to Australia. The Tribunal does not accept that if the applicant had returned to India in 2005 and was still in fear for his safety there that if he had the opportunity to travel to Australia and apply for a Protection visa in 2007 that he would not have used that opportunity to find permanent protection. The applicant claimed that as he was living in [Country 3], he did not see a need to seek or apply for a Protection visa at that time. As he only had a temporary right to work and reside in [Country 3], the Tribunal does not accept that if the applicant had any genuine fear of persecution or harm in India that he would not have used the opportunity of being able to travel to Australia and then apply for a Protection visa in 2007.
The applicant claimed that he has also faced threats from people from India who threatened him while he was living in [Country 3]. The Tribunal does not accept this. There is no independent or corroborative information which would indicate any threats were made against the applicant while he was outside India. There is no information which would indicate that the applicant reported to the police in [Country 3] or in any other country any threats made against him by any person. There is no reason why, if the applicant was threatened in [Country 3], that he would not report those threats to the police there. The fact that the applicant did not take any steps to report any claimed threats made against him while he was in [Country 3] to the [Country 3] authorities indicates that no such threats were ever made.
The applicant’s family, comprising his wife and two children, his mother, and [a number of siblings], all continue to reside in India. He has reported they have no problems living in India and have not been the subject of any threats or harassment. He claimed that they had been approached by people who say they are still looking for the applicant, but there is no information which would substantiate this claim. One of his [siblings] lives close to his home village and regularly visits their parents’ home to ensure that there are no problems there. No problems have been reported.
The fact that the applicant’s family are living in India and do not have any issues living there does not support the claim that the applicant has faced harassment or any other form of harm for being the son of a butcher, a Muslim or for any other reason. The fact that his [sibling] is living close to his home village and visits the family property and does not suffer any difficulties does not support a finding that if the applicant returned to India he would face any persecution or would suffer any significant harm.
The basis of the applicant’s claim is that members of the BJP and Hindu Munnani were against his family because they were selling beef meat. The applicant’s family stopped operating their butcher shop when the applicant’s father died in August 1997. The business has not been in operation for over 22 years. The applicant claims that he faced threats and persecution when he was taking steps to clean the shop and possibly reopen the business. He did not claim that at any period after the death of his father until he took the steps in January or February 1998 to clean the shop, six months after the shop ceased operating, that he was threatened or harmed or attacked at any time. The only basis of the threats was that various members of the Hindu community did not want the butcher shop operating.
The Tribunal does not accept that if the butcher shop has not been operating for over 22 years that the applicant would have a profile which would lead him to face any persecution or threat of harm. As the applicant did not reopen the butcher shop, there is no reason why the people who were allegedly threatening him would continue those threats. The applicant did not indicate that he has any intention to reopen the butcher shop. He has not been involved in the meat industry since 1997 when he was working for his father. Since then he has been involved in a number of occupations, including the sale of [items]. The Tribunal does not accept that as the applicant has not been involved in the selling of beef meat or in any butcher shop for over 22 years that if the applicant returned to India he would suffer any persecution or threat of any harm.
After January or February 1998 when the applicant ceased having any plans to reopen his father’s butcher shop, he travelled to [Town 2]. He reported that he had no difficulties living in [Town 2] for the two years he was there. During the hearing, he claimed that the only problems he had were in his home village. Although the applicant claimed that people were asking after him, there is no claim or information which would indicate the applicant has suffered any harm or persecution or that there is any risk if the applicant returned to India and lived anywhere outside his home village. If the applicant did have any concerns about living in the village where his parents used to live there would be nothing stopping him from living in other areas of Tamil Nadu, including [Town 2] where he lived for two years without any problems and Tiruchirappalli where he has spent an extended period of time after the death of his father.
The country information does not support the applicant’s claim that he would face persecution or any risk of harm if he returned to Tamil Nadu.
The Department of Foreign Affairs and Trade Country Information Report for India dated 17 October 2018 states as follows:
Muslims comprise 4.2% of the population and India has the third highest Muslim population in the world. Most Muslims in India live in communities where they constitute a minority, generally alongside a Hindu majority…
Violent attacks by vigilantes cow protection groups, mostly against Muslims and Dalits, occasionally occur. Incidents have involved killings, mob violence, assaults and intimidation. The states affected include Madhya Pradesh, Haryana, Jharkhand, Gujarat and Utter Pradesh. Vigilante cow protection groups fatally attacked at least 11 Muslim men and injured many others in 2017. Human rights groups criticised Prime Minister Modi and members of the ruling Bharatiya Janata Party (BJP) for failing to condemn such attacks, which critics argued amounted to implicit support. Police have arrested some alleged perpetrators but no convictions have been reported.
DFAT assesses that Muslims face a low risk of societal discrimination and violence. Incidents of communal violence in the mid-2000’s have not been repeated on a large scale in recent years. Muslims suspected of cow butchery in the states listed above may be targeted, however incidents while widely reported have not affected the day-to-day lives of most Muslims. DFAT assesses that Muslims in other parts of India face a low level of official and societal discrimination.[1]
[1] DFAT Country Information Report – India dated 17 October 2018, paragraphs 3.7, 3.9 and 3.10.
When this information was put to the applicant during the hearing he claimed that small incidents happen and that he still feared people might attack him. The Tribunal has not been able to locate any information which would support this claim and nothing has been provided to the Tribunal by the applicant to substantiate the claim of any persecution in Tamil Nadu due to the being a Muslim or involved in the slaughter and sale of cow meat. The applicant provided an internet news item purported published on timesnownews.com [in] July 2019[2] of a person who had been attacked after posting on Facebook an image of him consuming beef soup. Although the Tribunal was not able to verify this story, accepting that it is accurate, the report states that the police had arrested a number of individuals associated with the alleged attack and filed a case of attempt to murder against them. It was reported that “Such attacks have often been reported in Northern states. However, very few of such cases have been reported from southern states and rarely from Tamil Nadu.”
[2] accessed 19 November 2019
The report indicates the applicant would get appropriate state protection in Tamil Nadu from anyone who objected to the fact that he was involved in the sale of beef meet in 1997 or for any reason. Further it indicates that such incidents where a person faces any threat as they are associated with eating beef are very rare. It does not support the claim that the applicant would be subject to any persecution or a real risk that he will suffer significant harm in India and his home state of Tamil Nadu in particular.
The applicant’s claim was that the people who are targeting him were from the BJP and Hindu Mannani. Since 1998 the state government of Tamil Nadu has generally been made up by a coalition of parties. The last time the BJP was a member of the ruling coalition was in 2004. Since then, the United Progressive Alliance or the All India Anna Dravida Munnetra Kazhagam parties have been in power.[3] There is no information which would indicate the BJP or any associated Hindu nationalist organisation would have any significant control over the state authorities in Tamil Nadu which would prevent the applicant from obtaining appropriate state protection.
[3] accessed 11 November 2019.
The applicant’s own evidence at the hearing was that Tamil Nadu is “very peaceful”. He said that although there had been tensions in the 1980s and 1990s (later describing it as problems in the late 1990s and early 2000s) the authorities had arrested people from both sides and restored order. This evidence from the applicant shows that if he returned to Tamil Nadu at this time he would not face any persecution or significant harm and that if he was threatened by anybody he would be able to obtain protection from the appropriate state authorities.
In his statement in support of his application, the applicant refers to the fact that his father’s butcher shop’s main customers were from the Dalit class of people. He claimed to have friends within the Dalit community. The applicant does not make any direct association with his connection to the Dalit community as being a cause of persecution or a reason why he would face significant harm in India. He has not been involved in any protests or action to support the Dalit community and makes no claim that the Dalit community has suffered any persecution. The Tribunal does not accept that as the applicant does not identify as a member of the Dalit community and that he has not been involved in any activities to support the Dalit community that his limited association with that community would cause him to have a well-founded fear of persecution or that there is a real risk that he will suffer significant harm if he returns to India.
The Tribunal has considered all the circumstances of the applicant both individually and cumulatively. As set out above, the Tribunal is not satisfied that the applicant faces a real chance of persecution or significant harm for his being a Muslim. The Tribunal does not accept that the fact that the applicant’s father shop used to sell meat to members of the Dalit caste or that he has friends who are members of that caste would lead to any persecution of the applicant or that he would suffer any significant harm because of those associations. The Tribunal accepts that in 1998 the applicant may have been threatened when he was taking steps to reopen his father’s butcher shop which had closed upon the death of his father in August 1997. The Tribunal does not accept, however, that since that time while the shop has not been operating the applicant has been threatened or suffered any harm as a result of his being identified as the son of the owner of the butcher shop which is no longer operating or for any other reason. The Tribunal does not accept the applicant was threatened by any Hindus while he was living in [Country 3] for any reason associated with the claims he has made or that any individual, group or organisation has any interest in the applicant or would want to harm him for any reason.
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.
Hugh Sanderson
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)    that is not inconsistent with Article 7 of the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)    that is not inconsistent with Article 7 of the Covenant; or
(b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)    for the purpose of obtaining from the person or from a third person information or a confession; or
(b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)    for the purpose of intimidating or coercing the person or a third person; or
(d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)    a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
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.
…

[2019] AATA 5261

22 November 2019

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Immigration

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Statutory Interpretation

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