1615132 (Refugee)

1615132 (Refugee) [2020] AATA 2794 (19 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1615132
COUNTRY OF REFERENCE:                   India
MEMBER:Nathan Goetz
DATE:19 June 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 June 2020 at 3:08pm
CATCHWORDS
REFUGEE – protection visa – India – political opinion – member of Nam Tamila Party – false case by police – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(H), 5(J), 5K-LA, 36, 65
Migration Regulations 1994, 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 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant arrived in Australia on 12 June 2016 holding a transit visa. On 17 June 2016 the applicant applied for a protection visa.
On 4 July 2016 the Department wrote to the applicant and advised him that if he wished to discus his claims in an interview, he would need to contact the Department within 7 days of the letter to arrange an interview. There was no contact from the applicant and on 24 August 2016 the delegate refused to grant the applicant the protection visa.
On 19 September 2016 the applicant applied to the Tribunal for a review of the refusal decision. He provided the Tribunal with the delegate decision record and the notification of refusal of the protection visa.
On 20 May 2020 the applicant was invited to a telephone Tribunal hearing on 18 June 2020. The applicant did not respond to the hearing invitation by completing the ‘Response to hearing invitation’ and returning it to the Tribunal but did provide the Tribunal with a change of contact details form which provided a telephone number so the Tribunal could conduct the hearing.
The applicant appeared at the Tribunal on 18 June 2020 by telephone. The hearing was conducted with the assistance of an interpreter in the Tamil and English languages. The applicant was not represented by a registered migration agent for the review application.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Information provided by the applicant in his protection visa application form
According to the protection visa application form that the applicant submitted to the Department, he was born in Rangoon, [named country] in [year]. He gained Indian citizenship in 1985. Both his mother and father have Indian citizenship. He can read, write and speak English. He is an ethnic Tamil and married in the Tamil Nadu state, India in October 2002. He has a wife and children and they remain in India.
His form declares that in the last 30 years (at the time of completion of the form), he undertook the following travel:
·     [November] 2013 to [December] 2013: Visit to [Country 1]
·     [December] 2013 to [December] 2013: Visit to [Country 1]
·     [December] 2014 to [December] 2014: Visit to [Country 1]
·     [January] 2015 to [February] 2015: Visit to [Country 1]
From June 2009 until June 20016 he lived at [an address in] Chennai, Tamil Nadu state, India.
He had never been refused a visa to any country other than Australia.
He had two previous jobs in India. From 1990 to 2005 he was self-employed [as] a [Occupation 1]in Chennai, Tamil Nadu, India. From April 2005 until October 2016, he worked at [Company 1] which was a [certain] business. He was the proprietor of that business and it was located in [a] district of Chennai, Tamil Nadu state, India.
He sought Australia’s protection so he did not have to return to India.
He left India because he was a member of the Nam Tamila Party from May 2015. He fights for the cause of Tamil Elam. He is an active party member and had organised protest meetings against the atrocities and genocide committed against Sri Lankan Tamils. Police thought that he had an association with radical Tamil organisations because of his political view. It was a small party and not supported by the ruling party and other major opposition parties. Police at the insistence of the government threatened to file false cases against the applicant if he continued to fight for Tamil Elam causes. Fearing further police harassment and torture, he left India in June 2015* (see below for a discussion about this date).
If he returned to India, he thought that he would be apprehended, imprisoned, tortured and may be killed by the police at the insistence of the ruling party or other major political parties.
He had experienced harm in India. He was apprehended without proper documents on a few occasions, manhandled and tortured by the police. Frequently, police would come to his house and warn him against participating in any political activities especially in support of Sri Lankan Tamils.
He sought help within India after the harm. He sought help with the police but to no avail as the police were acting as servants of the Government.
He did not move or try to move to another part of India to seek safety. He did not do so because if he were to move to places other than Tamil Nadu, he would have language barriers and he did not have any relatives outside of Tamil Nadu who could provide safe shelter in the event of harassment from the police.
He thought he would be harmed or mistreated if he returned to India. He would be apprehended, tortured and may be killed by the police or goons at the insistence of the ruling party or other major political parties due to his political affiliation and opinion.
He did not think that the authorities in India could and would protect him if he returned to India because it is the Government authorities who are putting false cases due to his political affiliation and opinion.
He did not think he would be able to relocate within India because he feared persecution by police in any part of India as major political parties oppose the views of his party having links to terrorist organisations. Further, he knew only Tamil and has a language barrier. It may not be possible for the applicant to integrate into another society.
He indicated that he would provide his voter identification, passport, driver licence and membership card later.
He declared the contents of his protection visa application true, that he had no personal contacts in Australia, and that he did not receive assistance from an interpreter or anyone else to complete the protection visa application.
Oral evidence provided by the applicant at the Tribunal hearing
The applicant was helped in the completion of his protection visa application form by a roommate of his named [Mr A]. The applicant is unsure of the roommate’s last name. His migration agent who arranged the visa to come to Australia had also assisted [Mr A] to come to Australia and the applicant was provided [Mr A]’s phone number to call when he arrived in Australia. It was arranged that the applicant would live with [Mr A] in [New South Wales].
[Mr A] helped the applicant by filling in the form. The applicant provided [Mr A] with the information. The applicant told [Mr A] the answers to the questions, and [Mr A] read the answers back to the applicant.
The applicant was asked whether everything he wrote in the protection visa application was true and correct. The applicant indicated that there were two mistakes that [Mr A] had made. The applicant had left India in June 2016, and not June 2015 as contained in the form. The applicant directed the Tribunal to Question 89 of the form where it was written that the applicant left in June 2015. The applicant recently discovered this error when he received the hearing invitation. He went back and checked his application and saw the error.
The form did not declare the assistance he received from [Mr A] because the applicant could not read and did not pick this up.
The applicant was born in [named country] and moved to India in 1985 when he was [age] or [age] years of age. He moved there with all of his family. After his arrival in India, he worked for 6 months in a [factory]. His next job was working at a [shop] for three years. When he stopped working there, he worked in his own [shop]. He closed this shop in 2000 and lived in [Country 1] from 2000 until either May or June 2005. While he was in [Country 1], he [worked]. He returned to India in June 2005.
After returning to India in June 2005, he helped his brother at his brother’s [business]. He worked there for 6 months before starting his own [shop] in 2006. He worked at this shop until 6 months before he came to Australia. He did not work anywhere else in the 6 months before he came to Australia because there were issues in India, and he could not stay in once place. The name of the business was [name] and he employed two people. His business was not registered and did not pay taxes. The taxes were paid by the applicant.
The address that he provided in his protection visa application form where he lived from 2009 until June 2016 was his family home. His family still lives in the same house.
He joined the Nam Tamilar Party in May 2015. He joined the party because it works for the rights of Tamils. The applicant knew that Tamils are treated badly, and he wanted to voice his concerns. The applicant was asked what was involved in joining the party. The applicant said they organised meetings. A problem came after a meeting. Police were after them. The police were searching for him. The Tribunal again asked the applicant what was involved in joining this political party. The applicant said drunk people caused issues for them and because of that they got into trouble. The Tribunal put to the applicant that it was finding his evidence to be vague and repeated its question about what was involved in the applicant joining the party. The applicant said that he joined to help the Tamil community. The Tribunal indicated that it had trouble understanding the applicant’s evidence. He said after he joined the party, they organised meetings close to his house and when he went to a meeting there was a problem. Police harassed him.
The applicant was asked why the police would still be interested in him. He said he informed the party before he came to Australia that he had left the party but police were still looking for him because of the issues, and said that for the last 9 months before he came to Australia he did not stay at his home address. He was invited to participate in party meetings in Australia, but he did not participate. Noting the applicant’s evidence that he resigned from the party before he left India in 2016, and the applicant’s evidence that he was not in contact with the party back in India, the Tribunal queried why the police would be interested in him. He said that the ‘previous case’ is still on and he is the main person in the case. He did not want to go to jail.
The Tribunal asked the applicant to tell it about the previous case. He told the Tribunal that there is a case but because he does not contact anyone he does not know about it. The police are still going to his family house looking for him. The Tribunal again asked the applicant to give it as much detail as possible because it was finding the applicant’s evidence about the ‘case’ vague. The applicant said he was in the party for only 5 or 6 months and the problem came so he had to leave the country.
The Tribunal noted that if the ‘case’ was ‘still on’, it would like to know as much detail as possible about that. The applicant repeated that the case is still on and because of a meeting, there was a problem and he was the main person. His name was taken, and police were targeting his house and this was a disgrace to his family and that is why he did not want to stay in the house. He wanted to disappear from India and that is why he applied for a visa to move to [Country 2], but that was rejected so he came to Australia. He applied for the visa to go to [Country 2] 5 or 6 months before he came to Australia. He noted that he had previously travelled to [Country 1] and ]Country 3].
Noting that the applicant claimed to be experiencing problems with the authorities in India, the Tribunal asked why he continued to live at the same address until he left India (as declared in his protection visa application form). The applicant said he did not. His family lived at that address, but he was living at different addresses with other people. The Tribunal asked the applicant to detail where he was living prior to leaving India. The applicant said that he lived in a remote village [in] the Tamil Nadu state for one month prior to coming to Australia. Police did not find him because of its remote location. The Tribunal asked the applicant where he lived prior to that. He told the Tribunal he was in the [village] for 6 months but living in different houses.
When asked why the protection visa application form declared that he lived in the family home from 2009 to 2016, he responded that he lived there until 2015 and moved after that. The Tribunal repeated its question about why the address history was different between his oral and written evidence. The applicant said that was his ‘permanent address’ and his family still lived there.
Noting that the protection visa application form declared that he did not move or try to move to another part of the country, the Tribunal queried why there was a difference between his oral and written evidence. The applicant said that he was not very clear and did not know that he needed to declare those things.
The Tribunal asked the applicant why his protection visa application form did not declare that he had applied to travel to [Country 2] and that his application was refused. The applicant said that the question was never asked.
The Tribunal asked the applicant to detail his interaction with the police in India. He said that political meetings happened, there were riots and police were searching for him. Police came to the family home and looked for him, but they never found him. He was aware of police attendances at the family home because his family message him about this. The applicant told the Tribunal that he had not had any personal dealings with the police but knows that they are looking for him on the basis of what his family told him. The applicant confirmed he had no personal interactions with the police.
The Tribunal noted that in his protection visa application form, the applicant indicated that he would be submitting a party membership document, but he did not supply such a document. The applicant said that he never mentioned anything about providing a party membership document and was not aware that Khalitha had commented that such a document would be provided.
The Tribunal noted to the applicant that in his written protection visa form he wrote that he had been apprehended by police on a few occasions, manhandled and tortured, and that this was different from his oral evidence to the Tribunal. The applicant said that this did happen and that was why he had to leave his family home. He said he was taken by the police, beaten and still has some wounds of his legs. The Tribunal asked why the applicant told the Tribunal previously that he had no personal interactions with the police. The applicant said that three months after the incident he was staying at the family home and police came and took him, beat him and harassed him a few times. The Tribunal again asked why the applicant initially told the Tribunal that he did not have any personal interactions with the police. The applicant responded that he thought that Tribunal was referring to the last 7 months before he departed India and that he had no interactions with the police during that time.
The Tribunal noted to the applicant that his employment history as detailed in his protection visa application form was different to his oral evidence about his employment history. The Tribunal noted to the applicant he declared employment of two jobs in India. In regard to the form detailing that the applicant was the proprietor of a [certain] company named [Company 1], the applicant said that was his brother’s company. In regard to the form declaring that he was a self-employed [Occupation 1] from 1990 to 2005, the applicant said that was false information because the applicant was in [Country 1]. The applicant said he was not aware of that employment being declared in the form, and that it must have been done without his knowledge. Regarding the employment with his brother’s company, the Tribunal noted to the applicant that he had told the Tribunal that he worked for his brother’s company for 6 months, but the application form said he worked there from 2015 to 2016, and queried why this was the case. The applicant repeated that he returned to India from [Country 1] in 2005 and worked at his brother’s shop for 6 months before starting his own shop.

The Tribunal noted that the applicant had claimed in the form to read, write and speak English. The applicant told the Tribunal that he had only completed schooling to [a certain year] in [named country] and had difficulty understanding English. He told the Tribunal that he cannot read anything and got help from a friend completing the form and that he did not know what was written in the protection visa application form because he could not read English. The applicant told the Tribunal about this when the Tribunal indicated that due to the applicant’s vague evidence about how he joined the party, the case involved against him, together with the inconsistent evidence the Tribunal had discussed with the applicant, it may suggest to the Tribunal that he had manufactured his claims for protection to achieve permanent residency in Australia.
The Tribunal asked the applicant whether there was anything else he wished to tell the Tribunal. The applicant said there was nothing else.
FINDINGS AND REASONS
The issue in this case is whether the applicant is a refugee, or a person who is entitled to complementary protection. The Tribunal also needs to consider whether the applicant is a member of the same family unit of such a person.
The Tribunal is satisfied that the applicant is a citizen of India. He obtained citizenship in 1985. He does not claim to hold citizenship of any other country. He provided a copy of his Indian passport with his protection visa application form. Given this, the Tribunal is satisfied that the country of reference for this application is India.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has ultimately concluded that the applicant is not a credible witness about his protection claims. The Tribunal is satisfied that the applicant has manufactured his claims for protection to achieve permanent residency in Australia.
Claimed political profile
The Tribunal asked a number of times what was involved with the applicant joining the joining the Nam Tamilar Party. His evidence was vague. He said nothing about what was involved in him joining the party, such as how he got his membership, the process involved with applying to join the party, or any other narrative that would reasonably be expected to accompany a basic question of what was involved in joining a political organisation.
While the Tribunal acknowledges that the applicant gave consistent evidence that he joined the party in May 2015, the applicant told the Tribunal that he had a copy of his protection visa application form and had read it when he received the hearing invitation. The Tribunal is satisfied that the consistency between the oral and written evidence about when he joined the party can be attributed to the fact that he had read about this date in his form, not because he actually joined the organisation at that time.
Despite the Tribunal asking the applicant about what was involved in joining the political party a number of times, the applicant repeated a reference to attending a meeting, police attending and the applicant becoming the subject of a police investigation. The Tribunal is satisfied that the applicant could not provide the Tribunal with meaningful detail about what was involved in joining the party, and instead sought to repeat to the Tribunal about attending a meeting where police attended and the police were looking for him because he had learned that this was a fact in his protection claim. The Tribunal is satisfied that the applicant believed repeating this in response to the Tribunal questions about what was involved in joining the political party would persuade the Tribunal that he had indeed been involved in the political party as claimed.
The Tribunal struggled to get detail from the applicant about the ‘case’ against him. His responses were vague and lacking in the detail that would be expected of a person who was recalling their own lived experiences. The Tribunal asked the applicant about the case on a number of occasions. All the applicant could say was that the case was still there and police are still going to his house. The Tribunal told the applicant it wanted as much detail as possible about the case. Again, the applicant said that the case was ‘still on’ because of a problem at a meeting and his name was taken, and police attended on his family home.
While the Tribunal acknowledges that there may be difficulty for a person giving evidence through an interpreter providing their best evidence, the Tribunal found the applicant to be broad and repetitious about a meeting problem and that police were looking for him. It is not the job of the Tribunal to make the applicant’s case for him. It is the role of the applicant to provide the Tribunal with as much detail as possible to help the Tribunal be satisfied of facts. The applicant’s evidence about his political activity was extremely poor and not accompanied by the detail that could, in the Tribunal’s view, be reasonably expected of a person who was telling a person about their own lived experiences.
When put together with the other concerns that the Tribunal has, the Tribunal is satisfied that the applicant was not able to provide the Tribunal with meaningful detail about what was involved in joining the party and the ‘case’ against him due to the fact that this claims were fabricated. The Tribunal is satisfied that no party membership was produced by the applicant, not because he did not know that [Mr A] had written that it would be produced, but because the applicant was never a member of a political party, or had any involvement in politics in India.
Inconsistent evidence about employment history, travel and previous visa
The fact that the applicant declared that no person assisted him in completing his protection visa application form, yet told the Tribunal that a person had assisted him complete this form was, in the Tribunal’s view, evidence that the person who assisted the applicant to complete the protection visa application form did not want their assistance to be known to the Department. The reason that the person did not want this assistance to be known was because the person who wrote the forms knew the contents of the protection visa application were untrue. The Tribunal is satisfied that the applicant also knew this to be the case, and that he participated in providing claims that he knew were fabricated.
The detail provided in the protection visa application form, such as the applicant’s place of birth, family members, and marriage date could have only come from the visa applicant. It is incredulous for the Tribunal to accept that any inconsistencies between the applicant’s oral evidence and his written protection visa application form could be put down to the person who the applicant identified as [Mr A] going off on his own tangent and randomly declaring in the protection visa application form that the applicant had:
·     Never been refused a visa to another country when the applicant had been refused entry to [Country 2]
·     Worked as a [Occupation 1] from 1990 to 2005 and detailed where this work was based, when the applicant never worked as a [Occupation 1]
·     Worked for his brother’s company from 2005 to 2016 when the applicant’s evidence was that he worked there for 6 months, claiming that the applicant was a proprietor of business [Company 1], which the applicant said was his brother’s business when the inconsistency was put to him for comment.
·     Not declare that the applicant ran his own business from 2006 until six months before the applicant left India for Australia, and fail to detail the applicant’s other employment as detailed in the applicant’s oral evidence; and
·     Not declare that the applicant lived in [Country 1] from 2000 until 2005.
The applicant said that [Mr A] had asked the applicant the questions in the protection visa application form and read the applicant’s responses to him. It is clear that the applicant reviewed his protection visa application form before the hearing, as he told the Tribunal about the correction that needed to be made to the departure date from India. It is curious that the applicant would not have identified the rest of the apparent errors in his protection visa application form and told the Tribunal that the information needed correcting at the same time that the applicant identified the issue with the response to Question 89. The Tribunal is satisfied that had the Tribunal put the applicant’s information to him as detailed in his protection visa application form, for example, asking ‘I understand you were a [Occupation 1] from 1990 to 2005?’ the applicant would have agreed with this. To the Tribunal’s way of thinking, the inconsistent evidence as outlined above can be put down to the fact that the applicant, and the person who assisted him to complete the forms and detail the claims, have a flexible approach to the truth and have omitted details because they thought that doing so would achieve a favourable migration outcome. The Tribunal does not accept that [Mr A] did that without the applicant’s consent, noting the applicant saying initially that [Mr A] asked him the questions in the form.
The Tribunal does not accept the applicant’s explanation that he was not asked the question about previous visa refusals by [Mr A], that [Mr A] did not record the applicant’s employment history accurately despite being given accurate information by the applicant, or that [Mr A] did not record the applicant’s previous travel to [Country 1] accurately despite being given the accurate information by the applicant. The Tribunal is not satisfied that the applicant is a witness of truth about his past employment as claimed, and that he was willing to withhold his five year period in [Country 1] and [Country 2] visa refusal in his protection visa application form because he believed that omitting that information would assist him to achieve a positive migration outcome.
Inconsistent evidence about whether the applicant moved, or tried to move to another part of India
As noted, the protection visa application form details that the applicant lived at an address in India that he described to the Tribunal as his family home. His family continue to live at that address. The protection visa application form did not disclose that the applicant had lived at any other address in the 6 months prior to his departure from India as the applicant claimed in his oral evidence. In fact, the applicant’s protection visa application form specifically said that he did not move to another place. Had the applicant moved from his family home to a remote village as he claimed in his oral evidence, the Tribunal is satisfied that the applicant would have detailed that he lived in that village in his residential history list, and would have detailed that he moved in response to Question 93.
The applicant’s response to the Tribunal’s concerns about this inconsistent evidence was not persuasive. The applicant responded that the family home address was his ‘permanent address’. His response was that he was ‘not clear’ and ‘did not realise that he had to declare those things’ in response to the concerns about his answer to Question 93. The form makes it clear that the applicant had to put down all addresses where he lived in India. He wrote that he lived in the family home until he left India. He said that he did not relocate within India. The questions were basic and given the applicant’s evidence was that [Mr A] had asked the applicant questions and that the information came from the applicant, the Tribunal is satisfied that the reason for the inconsistent evidence is because the applicant never moved to another part of India. He remained in the family home as declared in his protection visa application form. The Tribunal is satisfied that the applicant suspected that the Tribunal may question why he would remain in the family home if police were looking for him, and that he fabricated his claimed relocation to a rural village to address those suspected concerns. The Tribunal is satisfied that the applicant has a flexible approach to the truth and is prepared to give evidence that is fabricated if he believes that it will help him achieve a positive migration outcome.
Inconsistent evidence about past interaction with police in India
The applicant told the Tribunal that the police ‘never found him’. They were looking for him. He had no personal interactions with the police. His claims were that they were looking for him and had attended on the family home a number of times. This was fundamentally different to the applicant’s written claims, where he noted his interactions with the police, that included being apprehended without proper documents on a few occasions, manhandled and tortured.
The Tribunal is not persuaded that the applicant’s explanation for this inconsistent evidence was because he thought the Tribunal was asking about the last 7 months that he was in India. The Tribunal’s question was not restricted in any way. The Tribunal asked the applicant twice about past interactions with police and the applicant never claimed that he was apprehended, manhandled or tortured. The Tribunal is satisfied that the applicant had forgotten that this claim had been made in his protection visa application form, and it is for that reason that he did not repeat the claim in his oral evidence. The Tribunal does not accept that the applicant would forget that he was apprehended, manhandled or tortured by police if that claim was true. The Tribunal is satisfied that the applicant has a flexible approach to the truth and is willing to give fabricated evidence if he believes that it would help him achieve a positive migration outcome.
CONCLUSION
The Tribunal is not satisfied that the applicant was ever a member of the Nam Tamilar Party, that he ever participated in political activity in India, that he was involved in a meeting that resulted in police attendance, that the police are looking for the applicant, that there is an investigation or ‘case’ against the applicant, that the applicant moved within India, that the applicant left India because he had a genuine fear of harm, or that the applicant failed to return to India because he fears harm. The applicant is not a credible witness. He has manufactured his protection claims in the hope of achieving permanent migration to Australia through the grant of a protection visa.
The Tribunal is not satisfied that the applicant is of any adverse interest to anyone in India. The Tribunal does not accept that the applicant has previously been involved in political activity in India, and is not satisfied that if the applicant returned to India, he would become involved in any political activity as he has not done so in the past.
Refugee
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).
That is to say, the Tribunal is not satisfied that there is a real chance of serious harm to the applicant on account of his race, religion, nationality, membership of a particular social group, or political opinion. The applicant holds no such fears and fabricated his claims.
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). For the same reasons, namely the Tribunal’s finding that the applicant has fabricated his claims, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
That is to say, the Tribunal is not satisfied that there are substantial grounds to believe that, as a result of the applicant’s removal from Australia to India, there is a real risk that the applicant would be arbitrarily deprived of his life, be subjected to the death penalty, that he would be tortured, subjected to cruel or inhuman treatment or punishment, or degrading treatment or punishment. The applicant has never experienced any harm in India in the past, and there is nothing to suggest that the applicant would experience harm in the future.
Member of the same family unit
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.
Nathan Goetz
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.
…

[2020] AATA 2794

19 June 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction