1615381 (Refugee) - [2018] AATA 3917

1615381 (Refugee) [2018] AATA 3917 (28 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1615381
COUNTRY OF REFERENCE:                  India
MEMBER:Nicola Findson
DATE:28 August 2018
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 28 August 2018 at 11:09am

CATCHWORDS

REFUGEE – Protection visa – India – Political opinion – Affiliation with Shiromani Akali Dahl (SAD Badal) party – Relative of victim of a politically motivated murder – Member of Gram Panchayat – Fear of harm from Indian National Congress Party (INC) – Fear of retribution by INC – Police corruption – Member of the same family unit – Third country protection – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91R, 91S, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473

Chan v MIEA (1989) 169 CLR 379
MIAC v SZRHU [2013] FCAFC 91
MIMA v Respondents S152/2003 (2004) 222 CLR 1
MIMAC v SZRHU (2013) 215 FCR 35
Randhawa v MILGEA (1994) 52 FCR 437
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
SZRUT v MIBP [2015] FCCA 262
SZTPK v MIBP [2014] FCCA 2259
SZTQO v MIBP [2014] FCCA 2636
V856/00A v MIMA [2001] FCA 1018

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of India, applied for the visas on 4 December 2014 and the delegate refused to grant the visas on 25 August 2016.

3. The first named applicant (hereinafter referred to as the applicant) appeared before the Tribunal on 12 October 2017, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. The applicants were represented in relation to the review by their registered migration agent.

5. The application for review was submitted, coupled with a copy of the delegate’s decision record, which the Tribunal accepts as being submitted for the purposes of the application for review.

6. The secondary applicants are included in this application as members of the first named applicant’s family unit.

RELEVANT LAW

7. 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, the applicant 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.

Refugee criterion

8. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

9. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Section 499 Ministerial Direction

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.

Member of the same family unit

Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a spouse and a person’s children.

BACKGROUND AND CLAIMS

The Tribunal has before it the Department’s file [number] and the Tribunal’s file relating to the applicants’ protection visa application. The Tribunal also has had regard to the material referred to in the delegate’s decision, as well as other material available to it from a range of sources.
Information in his application for protection indicates the applicant, who was born in [year], is a Sikh from [Village 1], Punjab, India. His family own property in the neighbouring village of [Village 2]. He married the second applicant in 2003, and together they have two children – the third named applicant, born in [year] and the fourth named applicant, born in [year].
The applicants arrived in Australia [in] October 2014, as holders of [temporary] visas. They lodged applications for protection visas on 4 December 2014.
From the information before it, the Tribunal summarises the applicant’s protection claims in the following paragraphs.
The applicant claims he is the son of a Sarpanch of [a] Gram Panchyat, who was a long-time supporter of what is now known as the Shiromani Akali Dahl (SAD Badal) political party in India. In his role as a Sarpanch, the applicant’s father represented the SAD Badal party at the local self-government level.
The applicant claims his father was killed by members of the Indian Congress Party in 2014, because of his affiliation with the SAD Badal party as well as a personal feud.
The applicant claims he fears harm at the hands of members of the Indian National Congress Party (INC) on account of his association with his father, and his own personal profile.
He claims his family history has been intertwined with politics since he was a boy. His father’s political career began with him becoming a member of the Gram Panchyat in the late 1980’s. In [year] he was successfully elected to the position of Sarpanch for a five year term; In [year], he successfully recontested the position of Sarpanch and was elected for a further five year term. In [year], he was unsuccessful at his third attempt to be elected to the position of Sarpanch, but became a member of [another body] (elected by the Punjab State Government) as well as a trust member of a [School] in the village of [Village 3]. In about 2013, the applicant’s father successfully ran again for the position of Sarpanch.
The applicant claims that over the years, his father held a membership of [an] Association in Punjab; was appointed as a [leader] for [a] [Union]; and was [a leader] of [a] Society of the village of [another village].
The applicant claims that in early 2014, his village joined with [a different] village for the annual Langar ceremony. At this event, previous tension between members of the INC party and the applicant’s family was exacerbated. The applicant’s family had an altercation with an INC party member [after] he teased a girl at the Sikh temple. After this incident, the relationship between the applicant’s family and the INC was particularly hostile. The INC party had long been annoyed by the applicant’s father’s political success as a representative of the SAD Badal and this incident appeared to further their resolve to ensure the applicant’ father was not successfully re-elected as Sarpanch in future elections.
The applicant claims that [in] 2014, his father was killed while in the company of his [brother]. The applicant attended at the local police station with his uncle, who had witnessed the incident, to lodge a First Information Report in relation to his father’s death. Because of the unusual nature of the incident and the position held by the applicant’s father, his demise was viewed as a politically motivated murder arranged by the INC party.
The applicant claims that [later in] 2014, he replaced his father as Sarpanch when he was appointed to the role by the SAD Badal party and other respected community members. During his short time in this role, he committed himself to working to promote the welfare and development for the people in his area. He was responsible for distributing grants and funds (such as local government pensions for the elderly) and working to improve local sanitation, including improving street maintenance, sewerage systems and hand pumps; he acted as a mediator in an attempt to resolve local and familial disputes; and he advocated for an increase in public awareness of the low female education participation rates, the issue of female foeticide and general drug awareness.
He claims that one of his main objectives in his position as Sarpanch was to ensure that those responsible for his father’s death were brought to justice. An investigation carried out by the applicant and members of his community concluded that [number] men were responsible for his father’s death – [names]. However, despite taking his findings to the police and his best efforts, a prosecution against the alleged murderers was never instigated. He claims SAD Badal supporters protested against the mishandling by the police of his father’s murder. The applicant claims that his father’s political rivals bribed the authorities to ensure that justice was not served.
The applicant claims that as a result of his public lobbying for the prosecution of those responsible for his father’s murder, he has placed himself as well as his family in danger. He claims the Indian justice system provides very poor protection against intimidation and physical harassment of family members seeking justice for politically-motivated murders.
The applicant claims that after arriving in Australia, [in] November 2014, his mother was approached at her home by an armed group who were looking for him. He claims his mother made a complaint to the police immediately after she was threatened by the armed men.
It is claimed that the applicant remains determined to seek justice for his father’s murder and has made very clear his intentions to pursue his father’s murderers through the judicial system in India. It is claimed that from Australia engaged a lawyer to file a complaint under the Indian Penal Code against the [men] suspected of murdering his father. [In] January 2015, his case was filed before the Chief Judicial Magistrate at [a specified Court]. Because the applicant is currently not physically present in India, his uncle is listed as the petitioner on the court documents. However, the applicant has managed the case against the accused men from Australia. He has liaised with witnesses to ensure that they attend court at the relevant times and provide the required evidence. He has also financially covered all of the expenses associated with the case.
In summarising, the applicant fears harm including murder, at the hands of the INC on the basis of his association with his father and because of his own personal profile. The applicant has spoken out publicly against the INC and accused INC members of murdering his father in a politically-motivated attack.

The Delegate’s Decision

In a decision record, the delegate sets out his findings and reasons for refusing to grant the applicant a protection visa. In summary, the delegate noted reservations in relation to the credibility of the applicant. However, the delegate decided not to make a finding in respect of the applicant’s overall credibility because the delegate made relevant findings on the applicant’s statutory effective protection. In particular, the delegate found that the applicant has access to effective state protection in Nepal by the operation of the bilateral residency treaty known as the Treaty of Peace and Friendship between India and Nepal. The delegate went on to find that the applicant has a present right to enter and reside in Nepal. The delegate then found that pursuant to s.36(3) of the Act, Australia is taken not to have protection obligations in respect of the applicant because the delegate found the applicant has not taken all possible steps to avail himself of the right to enter and reside, whether temporarily or permanently, in Nepal.

Application for Review

On 11 October 2017, the Tribunal received a detailed written submission from the applicant’s migration agent. Included with this submission were the following documents:

A newspaper article, together with an English translation, announcing the applicant’s father’s death
A copy of the First Information Report (FIR), together with an English translation, dated [in] April 2014
A newspaper article, together with an English translation, describing protests over the mishandling by the police of the applicant’s father’s murder
A copy of the complaint dated [in] November 2014 and filed at the police station [by] the applicant’s mother

In the written submission, it was submitted that the applicants fear harm that, if forced to return to India, they will face a real chance of being persecuted for reasons of their actual and imputed political opinions.

The submission states that after spending time as his father’s replacement Sarpanch, the applicant gained notoriety in the Punjab state as someone who was lobbying for his father’s accused murderers to be punished according to law. The applicant has actioned this commitment by arranging for a case to be filed before the Chief Judicial Magistrate at [a] Court [in] relation to his accusations. If successful at court, the applicant will be held responsible for the sentences handed down to the [accused] men.
It was further submitted that the INC is a political party whose influence and networks span the entire Indian nation. It was submitted that with an estimated base membership of approximately 20 million[1], there is no part of India where the applicants could continue their court case against the INC members without facing a real risk of significant harm or real chance of persecution.
[1] Encyclopaedia Britannica, Indian National Congress (17 July 2017):
The submission referred to country information in support of the applicant’s circumstances not being unique in India and the State of Punjab having a dreadful record of politically-motivated violence and impunity of instigators of such violence. It set out that despite the rights of Indian citizens to seek justice for murdered family members, many Indian citizens’ calls for justice are ignored by those in power and are punished by the accused.[2]
[2] Human Rights Watch, Protecting the Killers: A Policy of Impunity in Punjab, India (17 October 2007), available at:
The submission referred to a Freedom in the World 2017 report[3], which criticised the lower levels of the judiciary in India which have ‘been rife with corruption, and most citizens have great difficulty securing justice through the courts’. It was submitted that the findings of Freedom House in its report support the applicant’s own experiences in India: ‘Citizens frequently face substantial obstacles, including demands for bribes, and in getting the police to file a First Information Report, which is necessary to trigger an investigation of an alleged crime’.
[3] Freedom House, Freedom in the World 2017 – India (2 June 2017):
The submission referred to a recent United States Department of State report on Human Rights Practices for India, which demonstrates that ‘widespread impunity’ continues in India:
A lack of accountability for misconduct at all levels of government persisted, contributing to widespread impunity. Investigations and prosecutions of individual cases took place, but lax enforcement, a shortage of trained police officers, and an overburdened and under resourced court system contributed to infrequent convictions.
It was submitted that the available country information provides a strong basis for finding that the applicant’s efforts to seek justice for the politically motivated murder of his father has only further placed the applicants’ lives at risk. The submission set out that the applicants fear harm at the hands of the INC and their supporters and in 2017, fears of retribution by the INC (which is now in power) is at an all-time high. It was submitted that country information indicates that in 2017, INC-instigated and politically motivated violence has sharply increased in the Punjab state. On 3 May 2017, the Times of India reported that politically motivated violence in the Punjab state had only intensified under the leadership of the INC:
The sudden spurt in clashes between groups of political activists in the state after the new Congress government took charge has evoked sharp reactions from rival parties. However, despite allegations of involvement of its workers in violence frequently, the Congress has not reacted to the disturbing trend.[4]

It was submitted that the Times of India went on to report that the SAD (Badal) leader had accused the INC of ‘unprecedented’ levels of politically-motivated violence:

Shiromani Akali Dal (SAD) leader Dalijit Singh Cheema also accused the Congress of unleashing violent attacks on Akali workers. “On one hand this is murder of democracy and on the other it is resulting in people being brutally killed. This sort of thing is unprecendented” he said.
[4] The Times of India, Opposition attacks Congress over violent political clashes across Punjab (3 May 2017) available at:

It was submitted that the Bharatiya Janata Party – the political ally of the SAD (Badal) party – agrees with the damning assessment of the INC’s actions in the Punjab state. The submission sets out that on 16 September 2017, The Hindu reported that:
As the Congress-led government in Punjab completed six months in office, the Bharatiya Janata Party on Saturday held State-wide protests against the State government, accusing it of failing on all fronts … “During these 180 days the Congress has only been indulged in political vendetta, beating up opponents, committing atrocities on dalits and women, and bolstering VIP culture” they said.[5]
[5] The Hindu, BJP tears into Congress ‘failures’ in Punjab rule (16 September 2017):
It was submitted that, in light of the relevant country information, the Tribunal should find that the applicants face at least a real chance of persecution or a real risk of significant harm in all parts of India should the applicant continue his efforts to seek justice for the murder of his father.
As to the delegate’s finding that the applicants have a right to enter and reside in Nepal, the submission states that the applicant raised fears before the delegate that the INC party members accused of killing his father would pursue him in Nepal; that the qualifications in s.36 are enlivened; and that s.36(3) does not apply in this matter. It was submitted that Nepal is an extremely small neighbouring country, which shares its border with India. Given the proximity of Nepal to the Punjab state, it is significantly easier for a Punjab state resident to travel to Nepal than it is to travel to other Indian cities such as Mumbai and Kolkata. Given the ease at which Indian citizens can cross the Nepalese border, it was submitted that the Tribunal should view Nepal as an area which the potential perpetrators of harm could easily access to locate the applicants if they were to reside there.

Tribunal hearing

At his Tribunal hearing, the applicant began his sworn oral evidence by providing background about his family, education and employment history. He confirmed that his mother remains living in [Village 1]; one of his two sisters lives with her in-laws in India; and his second sister lives in Australia (gaining citizenship by grant in about 2006) with her family. He told the Tribunal that he completed his secondary education in India. He told the Tribunal that before he left India, he worked as [an occupation] - on land his family owned as well as land he leased in his village. He said his wife and children had been living in Chandigarh, which was [travelling time] by car from his home village, for three years before they left India, while his children studied there. He said they would reunite on weekends, either by his wife and children returning to their home village or him travelling to Chandigarh to stay in a property rented by the secondary applicants.
When asked why he fears returning to India, the applicant told the Tribunal that his main fear is that his life will not be spared by INC party members because of his association with his father, who was killed by a group of INC supporters (who lived in a village neighbouring the applicant’s home area) [in] 2014. The applicant also indicated that he would be targeted for harm by INC party members because of his attempts to seek justice for his father’s murder.
The applicant told the Tribunal that the INC party members had long harboured resentment towards his father for being a well-known active and influential SAD Badal party member in district politics and who had held the influential position of village Sarpanch for several terms, since 1998. He said that there was always “dirty politics” going on. He indicated that his father was generally a respected Sarpanch because he would always work hard to do what was best for the area he represented. However, he said that other Sarpanchs’ in and around the applicant’s home area, aligned with the INC party, had misused government grants of money to benefit themselves and their party. The applicant said that while his father was Sarpanch, the opposition party was unable to “get their things done”, and over the years their members would taunt his father by saying “our time will come” and “you will go to jail and eat jail food”. The applicant indicated to the Tribunal that in 2007, an opposition party member [registered] a criminal case against his father and [number] other SAD Badal party members, and made unfounded [accusations], in an attempt to impugn his father’s name and good work. He said that ultimately this complaint went nowhere and was thrown out by the Court.
The applicant told the Tribunal that his father had intervened in an altercation during Langar ceremony celebrations, which took place in early 2014, shortly before he was killed. Although the applicant was not a witness to this incident, he told the Tribunal that he had later learned his father had put a stop to an INC party member teasing a female villager. He also indicated that there were serious concerns held by the applicant’s family that the applicant’s father would face retribution from INC party members because he had publicly humiliated one of their own.
As to his father’s death, the applicant told the Tribunal that his father was walking alongside his Uncle when [details deleted]. The applicant said that in addition to his Uncle, there were others that witnessed the incident, and a First Information Report was lodged with the police. He said the incident occurred around election time and the police were busy and therefore tardy with their investigations, which enabled the men who were finally identified as being involved in the incident to go underground. He indicated that he became frustrated at the slow progress of the police investigation and instigated his own inquiries, with the help of others in his home area, which resulted in the identification of [number] INC party members, including [a Gram Panchyat member] from a neighbouring village, being responsible for his father’s death. He said that even after he presented the findings of his own inquiries to the police, it took the police several months to take any action against his father’s alleged killers. He also said that despite being assured by high ranking police officials throughout their investigation that the inquiry was going to go in his favour, in the end the police took money from the families of the accused and did not lay any charges in relation to his father’s death. The applicant said that because he had regularly conversed with the police and believed that the alleged men would face criminal charges over his father’s death because of the strong evidence against them, he did not pay money to the police. When it was suggested to the applicant by the Tribunal that surely the police would have been interested in pursuing charges against those responsible for the death of the serving Sarpanch, he replied that in India corruption is everywhere and money comes into everything. He said money matters and corruption outweigh standing.
The Tribunal asked the applicant how it was he had come to be Sarpanch of his village, after his father’s demise, given it is an elected role. The applicant told the Tribunal that he had accompanied his father on official duties and gained a reputation as “Sarpanch Junior” when he was younger. He indicated that the role of nepotism and family dynasty is not unusual in India and that is how he came to assume the role of Sarpanch after his father’s death. He indicated that he was familiar with how the role worked, and that he had the respect and sympathy of the people in his village and their vote was behind him; so he was chosen as Sarpanch without the need for an election.
The applicant told the Tribunal that in about October 2014, after the police investigation came to an end, the men alleged to have been involved in killing his father, came out of hiding. The applicant told the Tribunal that he felt fear – like he would be “dead too” - when the men accused of being involved in his father’s murder emerged from underground. He said his father had good standing and was a good person and it was his belief that he was murdered by the INC members to clear the path to their power. He said the INC members would not have been expecting his villagers to elect him to be Sarpanch, and he indicated he felt very scared as to what harm might come his way from them when they came out of hiding. He confirmed he made arrangements to leave India with the secondary applicants and they arrived in Australia [in] October 2014.
The applicant told the Tribunal that he remains committed to pursuing the INC party members and achieving justice for his father. He confirmed that he commenced a court case against the INC party members involved in the death of his father and that this matter is ongoing. He said that he engaged and instructs the lawyers to act on his behalf; is in close contact with the several witnesses, who have already provided evidence, in private, to the Court; and he had been informed that the matter is likely to take two or three years to be resolved. He told the Tribunal that he is keeping his father’s case alive in the hope that the men accused of killing his father will eventually be punished for what they have done. When asked whether his Uncle, who was a witness to his father’s death and who was named as the petitioner in respect of the court proceeding currently on foot in India, had been threatened or harmed in any way by the men the applicant claims to fear harm from, the Tribunal was told that he had not because “everyone knows” that he is responsible for bringing the case against the INC party members. He said he had fervently petitioned to keep his father’s case alive in India before he left and is known to be determined to pursue a punishment for those responsible for killing his father. The applicant also told the Tribunal that his Uncle is elderly and known to be uneducated, illiterate and therefore incapable of solely advocating for justice for the applicant’s father.
When invited to comment on the delegate’s concerns that although the applicant claims the feud between his father and opposition party members was politically based, the documents – the first information report and newspaper articles - accompanying the application indicate that the feud was personal rather than political, the applicant indicated that his father was killed by INC party members – one of whom was at the time the Sarpanch of a neighbouring village - who had long held resentment towards him. He reiterated that his father had endured years of hostility directed at him by INC party members, as a SAD Badal party member and in his role as Sarpanch, and his death was widely regarded as a politically motivated murder arranged by INC party members. As to the first information report, he said that despite his Uncle being illiterate, the police had insisted that he provide the information given that he had witnessed the incident first hand. However, he said that after further inquiries, it became apparent who was responsible for his father’s death and why. He added that he and his immediate family had no input in to what the reporters reported in the newspapers.
When asked to comment on the delegate’s doubts about the veracity of the incident involving the questioning of his mother [in] November 2014, particularly since there had been no incidents prior to this, the applicant replied that the men responsible for his father’s murder went underground after his death for many months trying to save themselves. He indicated that these men only emerged from hiding when they were satisfied that the police would not be laying charges against them in relation to the incident.
As to the delegate noting that the applicant had provided false information in his [temporary] visa application, the applicant indicated to the Tribunal at the time his application was lodged he was an investor in his friend’s business. However, when his friend learned of the issues he was entangled in, he did not want the applicant to be involved in his business any longer. The applicant also indicated to the Tribunal that he was unaware he was unable to withdraw money from the bank account he had nominated in his application. He said that money from this account had been used for his family’s needs when they arrived in Australia as well as to fund the Court case against his father’s killers in India.
As to country information indicating that he would be able to access effective police protection if he was concerned for his safety, the applicant indicated to the Tribunal that because of his past experience with the police in India, in particular in relation to the death of his father, and the widespread corruption among the ranks, he does not have any confidence that he would be afforded protection by the authorities if he returned to India.
On the question of internal relocation, the applicant said that it would be difficult to relocate to another area. He said that in India he could go anywhere, but he would be found by those he fears harm from. He said finding a person in India is not hard – especially for those that have networks. He said that the INC party members accused over his father’s death would track him down with the help of their political party. He added that he would not be able to restrict his movements because he is determined to keep his father’s case running.
When asked to comment on the apparent right he has to enter and reside in Nepal, to escape the harm he feared in India, the applicant said that Nepal adjoins Punjab’s border and is open to him as well as his father’s killers. He said that if he was a single man he may be able to go underground, but he has a wife and children to consider, and these men would eventually trace them in Nepal. He said that these men masterminded his father’s murder and are not normal people. He maintained that if he was to go to Nepal, with his family, the men he fears harm from would find him.
When invited to do so, at the conclusion of the hearing, the applicants representative submitted that the applicant’s main concern is to continue to pursue the INC party members responsible for his father’s death, from Australia where he knows he can safely do so. Country information indicating that impunity is an enormous problem in the Punjab province was highlighted. It was also submitted that although there may have been a personal dispute just prior to the applicant’s father being killed, the fact that the people who are alleged to have done the killing belong to a certain political affiliation and the fact that the applicant’s father was a leader within the area and belonged to an opposing political party, does give a political flavour to what has transpired in this case.
As to the delegate’s concerns, noted in the decision record, about the applicant providing false information in relation to his visitor visa, it was submitted that this appeared to be a ‘throwaway line’ and it was unclear how it had any bearing over the applicant’s testimony. The Tribunal was told that the relevant [temporary] visa file indicates that there were integrity checks, including site checks, undertaken by the Department in the applicant’s home area in March 2015, after his protection visa application had been lodged. It was submitted that while those checks resulted in a Departmental officer having concerns, there was no firm finding that fraudulent information had been submitted to the Department. The Tribunal was told that a statutory declaration had been completed in pencil rather than pen and that because of this the Departmental officer held serious concerns as to the content of the declaration. However, it was submitted that holding a concern is very different from a definite fraudulent document or information being on the record. It was also submitted that the Department had taken no further action against the applicant in relation to fraudulent information. The applicant’s representative noted that the checks carried out in relation to the applicant mean that people in his home area have been made aware of his presence in Australia.

It was submitted that if the applicant and his family return to another part of India or Nepal, it would not be difficult for his father’s perpetrators to locate them.

FINDINGS AND REASONS

The issue in this case is whether the applicants satisfy the criteria for a protection visa, and whether Australia is taken not to owe protection obligations to the applicants because of s.36(3) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

Country of reference

The Tribunal has considered the documentary evidence provided to the Department by the applicants and referred to in the delegate’s decision record. This includes copies of the Indian passports issued to the applicants. Having regard to this evidence, the Tribunal finds that the applicants are nationals of India.
On the basis of the finding in the previous paragraph, the Tribunal finds that the country of reference for the assessment of refugee claims, and the receiving country for the assessment of complementary protection claims, in this case is India.

Third Country protection

The Tribunal is aware of the existence of information pertaining to the ability of Indian citizens to enter and reside in Nepal, arising from a Treaty between the two countries permitting a degree of freedom and movement and residence. The Tribunal has considered this element below.

Assessment of claims

The Tribunal carefully considered the applicant’s written and oral evidence. The Tribunal found the applicant gave detailed evidence and that his evidence before the Tribunal is consistent with the evidence he has previously submitted to the Department, and is also essentially consistent with independent country information. The Tribunal did not find evidence in this case of the applicant’s core claim being fabricated or exaggerated. The Tribunal accepts on the basis of independent evidence and the applicant’s evidence that there is a real chance that the applicant would suffer serious harm in India if he returned there in the reasonably foreseeable future.
The applicant claims to fear serious harm, including deprivation of life, if returned to India for reason of his actual and imputed political opinion. The applicant claims he has spoken out publically against the INC party and accused its members of murdering his father in a politically motivated attack. He claims that he will not be able to avail himself of state protection if threatened or attacked by members aligned to the INC party.
Having regard to the documents which have been submitted by the applicant, or on his behalf, and his sworn oral evidence, the Tribunal accepts that the applicant was born in [District 1], Punjab State, India. The Tribunal accepts on the evidence presented that he is religiously and ethnically, a Sikh.
On the basis of the applicant’s sworn evidence, documentary evidence which it accepts in this case, and the relevant country information before it, the Tribunal accepts that the applicant’s father, [was] actively involved in the SAD Badal party and held the elected position of Sarpanch at the local self-government village level on three occasions between [year] and 2014. The Tribunal also accepts on the evidence presented that the applicant supported the SAD Badal party agenda in India. The Tribunal accepts the applicant’s claims that there was long standing tension between INC party members and his father, because of his political success. It accepts there was an altercation between the applicant’s father and an INC party member in early 2014 which exacerbated that hostility. It accepts on the evidence before it that the applicant’s father was killed by INC party members in [2014].
On the basis of the evidence before it, the Tribunal accepts that following his father’s death, and during the time he acted as the replacement Sarpanch of his village, the applicant identified and publically lobbied for the INC party members accused of killing his father to be brought to justice. The Tribunal accepts that the accused men went underground after the applicant’s father was killed and only emerged when the police decided not to prosecute them in relation to the incident. The Tribunal also accepts that the applicant has actioned his commitment to see these men punished by arranging for a case to be filed and pursued before [a Court] in [India]. The Tribunal accepts that this proceeding is currently on foot before the Court and contributes to elevating the applicant’s risk of serious harm at the hands of the INC party members, or their supporters, if he returns to India.
On the basis of the evidence before it, including the documentary evidence before it, the Tribunal accepts that [in] November 2014 the applicant’s mother was approached at her home by an armed group enquiring as to the whereabouts of the applicant.
The Tribunal acknowledges the country information regarding the politically-motivated violence in the state of Punjab and accepts that the applicant holds a genuine subjective fear for his life and wellbeing because of his relationship with his father, who had a significant profile with the SAD Badal party, and because of the actions he has taken against the INC party members responsible for killing his father.
Having reviewed all of the evidence before it, which was significantly more detailed than that provided to the delegate, the Tribunal finds the applicant has, and is perceived to have, a political and personal profile which is sufficient to attract a risk of adverse attention in his home area.
In considering whether the level of risk which the Tribunal finds the applicant faces in his home area generally rises to the level of being a well-founded fear, the Tribunal considered the test for determining well-founded fear was enunciated by the High Court in Chan v MIEA.[6] The Court held that ‘well-founded fear’ involves both a subjective and objective element. The Tribunal is satisfied by reference to all the evidence that the applicant holds a subjective fear of serious harm.
[6] (1989) 169 CLR 379 at 396.
In considering whether the fear is well founded, a fear of being persecuted is well-founded if there is a ‘real chance’ of being persecuted.[7] A ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. According to Mason CJ in Chan v MIEA, the expression ‘a real chance’:
… clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring. ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well‑founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.[8]

In the same case Dawson J stated:

... a fear can be well-founded without any certainty, or even probability, that it will be realized. ... A real chance is one that is not remote, regardless of whether it is less or more than 50 per cent.[9]
[7] Chan v MIEA (1989) 169 CLR 379 per Mason CJ at 389, Toohey J at 406-7, Dawson J at 396-8, McHugh J at 428-9.
[8] (1989) 169 CLR 379 at 389.
[9]Chan v MIEA (1989) 169 CLR 379 at 397-398.

Having regard to the above test, and having regard to the evidence of the applicant, which the Tribunal accepts, and having regard to all of the relevant country information, the Tribunal finds the applicant does face a real chance of serious harm in the form of physical assault or murder by elements of the INC party, now or in the reasonably foreseeable future, if he returns to Punjab, India.
Having regard to all the evidence and circumstances, including the applicant being the son of his father - a prominent SAD Badal party member and Sarpanch - in the area, the applicant’s support for the SAD Badal party agenda, the applicant’s past participation as a Sarpanch in his village, and accepting that the applicant continues to be motivated to pursue justice against the INC party members responsible for his father’s death, and having regard to the country information before it as to the politically motivated violence and impunity of the instigators of such violence in Punjab, India, the Tribunal finds the applicant does face a real chance of serious harm such as serious injury or death at the hands of INC party members now or in the reasonably foreseeable future if he returns to his home area. It finds the serious harm is of a kind suggested in the examples set out in s.91R of the Act. Further, it finds the essential and significant motivation for this serious harm is the applicant’s actual or imputed anti-INC political opinion. Further, it finds that the targeting of the applicant for such serious harm would be systematic and discriminatory.

State Protection

Having regard to the country information cited in the most recent Department of Foreign Affairs and Trade (DFAT) report[10], the Tribunal notes that the capacity of India’s police force is limited by poor infrastructure, insufficient personnel, inadequate training, poor living conditions for low-ranking officers, insufficient remuneration and a lack of training and equipment to conduct their duties. India also has relatively few police officers per capita – 129 per 100,000 people, compared to a global average of 350.
[10] DFAT Country Information Report: India 15 July 2015
DFAT report that:
5.6 Allegations of human rights abuses carried out by police in India are frequent. Section 197 of the Criminal Procedure Code 1973 provides immunity to public servants against prosecution without prior sanction from the Central Government (or relevant state government) for offences alleged to have been committed while in the discharge of official duty. Only 28 per cent of the 282,384 complaints made against police between 2003 and 2007 resulted in police or judicial inquiries. During the same period, 8,736 prosecutions were initiated against officers, 1,070 trials were completed and 264 officers were convicted.
5.8 India has an independent judiciary and a tradition of establishing special judicial commissions to investigate and report on issues of human rights concern. However, the Indian justice system is notoriously inefficient. A lack of properly qualified and practising judges slows the judiciary’s ability to consider the large number of pending cases. In May 2013, a parliamentary panel found that India had just thirteen judges for every million people, compared with an average of 35-40 in other developing nations and 50 in developed countries. According to the Asian Human Rights Commission, as of 2013 there were an estimated 20 million cases in the trial courts; more than four million cases in the High Courts; and 49,000 cases pending in the Supreme Court.
The applicant claims he is unable to rely on the Indian government for protection from the INC party members accused of being involved in his father’s death, or their supporters.
The Tribunal considered the adequacy of protection and that the Refugee Convention does not require or imply the elimination by the state of all risks of harm; rather it ‘posits a reasonable level of protection, not a perfect one’.[11] The Tribunal accepts that the correct position in law with respect to state protection is that for the purposes of Article 1A(2), there is an obligation on the state to take ‘reasonable measures’ to protect the lives and safety of its citizens, including ‘an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system’,[12] or a ‘reasonably effective police force and a reasonably impartial system of justice’.[13] The Tribunal accepts that the legal principle on adequacy of state protection for refugee protection indicates the appropriate level of protection is to be determined by ‘international standards’. Having regard to the relevant country information, the Tribunal finds the applicant would not be able to avail himself of state protection at a level which is generally accepted as being at an international standard to protect him from the serious harm he faces.

Relocation within India

[11] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [117].

[12] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26].

[13] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [28].

Having accepted that the applicant has a well-founded fear of persecution in his home area, and Punjab more generally, the Tribunal must consider whether the well-founded fear of persecution extends to the country as whole, and if not, whether it would be reasonable for the applicant to relocate to a part of India where he does not have a well-founded fear of persecution.
In SZATV v MIAC[14] the High Court endorsed the proposition that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so. The Court further held that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country.[15] As Kirby J stated in that case, the supposed possibility of relocation will not detract from a “well-founded fear of persecution” where any such relocation would, in all the circumstances, be unreasonable.[16]
[14](2007) 233 CLR 18.
[15]SZATV v MIAC (2007) 233 CLR 18 at [24].
[16]Ibid at [97].
In the context of what is reasonable, the Tribunal notes that a well-founded fear of being persecuted cannot properly be regarded as being localised if relocating carries with it the need to avoid persecution by “living discreetly”. In SZFDV v MIAC, the High Court emphasised that:[17]
… it would not be a “reasonable” adaptation of the behaviour of an applicant … to expect the applicant to return to the country of nationality and to abdicate, or repudiate, a fundamental right of the kind included in the list of Refugees Convention-related grounds of “persecution”.
[17]SZFDV v MIAC (2007) 233 CLR 51 at [33] per Kirby J referring to Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [40] per McHugh and Kirby JJ, and at [80] per Gummow and Hayne JJ.
As McHugh and Kirby JJ explained in Appellant S395/2002 v MIMA,[18] the Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps, reasonable or otherwise, to avoid offending the wishes of the persecutors.[19]
[18](2007) 233 CLR 51.
[19]Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [40], cited with approval in SZATVv MIAC (2007) 233 CLR 18 at [28].
The Tribunal is satisfied that the applicant, as a citizen of India, has the right to relocate within India. The range of factors that may be relevant in any particular case to the question of whether relocation is reasonably available will be largely determined by the case sought to be made out by an applicant.[20]
[20]Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 443; per Whitlam J at 453.
In his oral evidence and written submission to the Tribunal, the applicant has asserted that it is not safe for him to relocate to another area to avoid the harm he fears from INC party members in Punjab; and, that it would also be unreasonable, given his particular personal circumstances because of his actual or imputed political opinion. He submits that the INC party is a political party whose influence and networks span the entire country of India. The applicant also stated that there is no part of India where he could work and continue the court case against the accused INC party members, nor have his children attend school, without being located and therefore facing a real risk of significant harm or real chance of persecution.
The Tribunal has considered these submissions. The Tribunal accepts that, while the applicant’s profile derives from his standing and that of his family within his local community and could be argued to be localised to his home area of [District 1], it extends more broadly within Punjab. The Tribunal further finds that the applicant’s profile relates to actual or imputed political opinion and activities. On that basis, the Tribunal accepts that the applicant may continue to have an objectively well-founded fear of harm wherever he might relocate to within India.

Section 36(3) – Right to enter and reside in Nepal

Having determined that the applicant has a well-founded fear of persecution in India, the Tribunal has to consider whether the applicant has a right to enter and reside in any third country.
Section 36(3) of the Act provides as follows:
36 Protection obligations
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
Section 36(3) is a relevant consideration in matters involving Indian applicants for protection. A bilateral agreement between India and Nepal known as the Indo-Nepal Treaty of Peace and Friendship of 1950 (the Treaty) exists which permits citizens of each country a right to enter the other. A DFAT report on this Treaty states:
Article 7 of this treaty provides for each country ‘to grant, on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation of trade and commerce, movement and other privileges of a similar nature’. The Treaty therefore provides for freedom of movement across borders between the two countries and equal rights in the participation in the economy and legal system. [21]
[21] DFAT Thematic Report: India-Nepal Treaty of Peace and Friendship: Rights of Nepalis in India 22 December 2016
In MIAC v SZRHU [2013] FCAFC 91 (SZRHU) the Full Court of the Federal Court held that the correct test for section 36(3) was that set out by Allsop J (as he then was) in V856/00A v MIMA (V856/00A)[22], that there is
No reason to restrict the meaning of the word ‘right’ to a right in the strict sense which is legally enforceable and which is found reflected in the positive law of the state in question or to exclude from the meaning the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of any particular enforcement, or to exclude from the meaning the notion of liberty or permission or privilege which does not give rise to any particular duty upon the state in question.
[22] V856/00A v MIMA [2001] FCA 1018 at [31], 114 FCR 408 at 419.
In SZRHU the Court was considering the operation of section 36(3) in relation to a Nepalese national’s right to enter and reside in India under the Treaty, but the Tribunal sees no reason why the reasoning of this decision should not apply equally to the case of an Indian’s right to enter and reside in Nepal. Buchanan J held the correct course for the Tribunal to adopt is as follows:
[The Tribunal] should pay regard to the actual terms of the treaty and should also evaluate whether, in combination with the terms of the Treaty, the administrative arrangements for entry by Nepalese citizens at the Indian border (or any other arrangements with respect to entry identified by it) satisfy the test.
The Tribunal found no information indicating that there are any practical barriers for Indian citizens being able to travel to and enter Nepal.[23]
[23] Searches conducted on CISNET, think tanks, academic journals, open source search engines, human rights organisations, non-government organisations, and international news outlets.

The present guidance of the Nepali Embassy in New Delhi states that Indian citizens are not required to have a visa, but:
Effective from 1^st October 2000 an Indian citizen over the age of 10 years travelling between India and Nepal by air would have to keep in his possession any of the following documents to establish his/her identity as an Indian citizen:
1.     Valid Indian passport; or
2.     Photo identity card issued by the Government of India, or any State Government or Union Territory Administration in India, or the Election Commission of India; or
3.     Emergency certificate issued by the Embassy of India in Nepal.[24]
[24]
Further information derived from the Nepalese Immigration website states:
What documents are necessary to enter Nepal
·     Passport, or
·     Driving license with photograph, or
·     Identity card with photograph issued by a government body, or
·     Ration card with photograph, or
·     Voter identity card with photograph, or
·     Registration certificate issued by the Indian embassy to the Indian citizen staying in Nepal, or
·     Ad hoc/temporary identity card issued by the Indian embassy to the Indian citizen in the event of exigency, or
·     Document with photograph and setting out identity, issued by the sub-divisional magistrate or authority there above.[25]
[25] ‘Important information to Visitors’, Department of Immigration, Ministry of Home Affairs, Government of Nepal
The Nepali government’s published entry requirements from Indians make it clear that Indian nationals are free to enter Nepal upon presenting basic forms of photographic and other identification. Country information suggests that the privilege granted is in practice, rarely denied, and enjoyed by many Indians and Nepalis on a daily basis.
A majority of the Full Federal Court in SZRHU found that the terms of the Treaty, while reflecting a mutual right of residence, did not appear to give rights of entry and so did not of itself support a finding of a right to enter and reside in India for the Nepali applicant.[26] However, the Court indicated that the Tribunal should pay regard to the actual terms of the treaty and also evaluate whether, in combination with the terms of the Treaty, the administrative arrangements for entry by Nepalese citizens satisfy the requisite test of a liberty, permission or privilege lawfully given, to enter and reside in the country.[27]
[26] MIMAC v SZRHU (2013) 215 FCR 35, per Buchanan J at [88], Tracey, Robertson and Griffiths JJ agreeing.
[27] MIMAC v SZRHU (2013) 215 FCR 35, per Buchanan J at [90].
The Full Federal Court remitted the case for reconsideration to determine whether the applicant in that case has a right of entry within the sense described by the Federal Court in V856/00A.[28]
[28] V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408; [2001] FCA 1018.
Subsequent judgments of the Federal Circuit Court have upheld decisions in which the Tribunal, following this approach, has found that the administrative arrangements for entry, when read in light of the terms of the Treaty, amount to an entitlement to enter and reside consistent with that described in SZRHU.[29]
[29] SZTQO v MIBP [2014] FCCA 2636 (Judge Barnes, 30 October 2014); SZTPK v MIBP [2014] FCCA 2259 (Judge Driver, 31 October 2014) at [24]; SZRUT v MIBP [2015] FCCA 262 (Judge Street, 5 February 2015) at [30].
Having regard to the information before it, including the evidence indicating the applicants are the holders of current, valid, passports issued in their names by the Republic of India, the Tribunal finds that the applicants have a right to enter and reside, whether temporarily or permanently, in Nepal and the right is one that presently exists as they are Indian citizens, a fact which they are able to demonstrate by way of their current Indian passports.
Having regard to all of the evidence, the Tribunal is satisfied that the Treaty and the arrangements between India and Nepal establish a liberty, permission or privilege in favour of Nepali and Indian citizens, including the applicant, and satisfy the test articulated by Allsop J in V856/00A and endorsed by the court in SZRHU.
Having regard to this evidence, and to the terms of the Treaty and the administrative arrangements for entry as summarised above, the Tribunal finds that the applicants do have the right to enter and reside in Nepal for the purposes of s.36(3). Further, having regard to all of the evidence, the Tribunal finds the applicants have not taken any steps to avail themselves of that right.
The Tribunal finds that the applicants have not taken all possible steps to avail themselves of the right which they currently have to enter and reside in Nepal for the purposes of s.36(3) of the Act.

Qualifications

The Tribunal finds that Australia is taken not to have protection obligations to the applicant pursuant to s.36(3) unless the Tribunal determines that one or more of the qualifications contained in s.36(4), 36(5) or 36(5A) are met.
Section 36(4) of the Act provides that s.36(3) does not apply where the applicant has a well-founded fear of persecution or there is a real risk of significant harm.
The Tribunal discussed with the applicant whether he feared being harmed in Nepal. The applicant stated that he believed he and the secondary applicants would be found and harmed in Nepal by the INC party members accused of killing his father. The applicant noted that the provisions that allow him to enter the country also entitled his father’s murderers, who are also Indian citizens, to seek to enter and reside in Nepal. The applicant also indicated that the political connections of his father’s killers meant that they had significant opportunity to use political influence to be able to find him and the secondary applicants in Nepal.
He also indicated that there was a level of lawlessness in Nepal that the INC party members could take advantage of to harm the applicants. The applicant indicated to the Tribunal that he would easily be found by the INC party members or their supporters when he sought employment or for his children to be educated, through the need to provide details of their identities as well as their employment and education histories.
DFAT information on Nepal states:

Economic Overview
2.9 Nepal’s economic growth has been adversely affected by political uncertainty and conflict. The focus on political transition and the attainment of peace has meant inadequate attention has been given to economic and other reforms that would improve the investment climate, stimulate growth and create more private sector jobs. The earthquake of April 2015 and the subsequent aftershocks had a negative impact on the economy. The 2015 political dispute in the Terai, which restricted trade and services across the Nepal/India border, also affected growth.
2.10 Nepal is among the poorest and least developed countries in the world. According to UNDP’s 2015 Human Development Report, Nepal, ranked 145th out of 187 countries in the Human Development Index, with 25.2 per cent of the population living under the national poverty line and 23.7 per cent earning less than US$1.25 per day.
…
2.14 Corruption is endemic in Nepal, which ranked 130 out of 168 countries in Transparency International’s 2015 Corruption Perception Index. Patronage and obligations to social, political and economic networks are prevalent, due in part to weak rule of law and political uncertainty. Low and middle-ranking officials often engage in petty corruption to facilitate better access to government services. The 2015 Constitution established a Commission for Investigation of Abuse of Authority to investigate corruption allegations against public officials.
Employment
2.25 The 2015 Constitution provides for the freedom to practice any occupation and the right to employment. While precise numbers are impossible to gauge because of the open border with India, every year more than 4 million Nepalis travel abroad (mostly to India, followed by countries in the Persian Gulf and Malaysia) to engage in low or no-skill and low-wage employment. Labour migration and remittances accounted for nearly 30 per cent of GDP in 2014, representing a 30 per cent increase in the share of remittances in 2011. DFAT assesses that economic migration acts as a significant driver for many millions of Nepalis to leave the country every year seeking better opportunities than those found in Nepal.

This matter is not an ordinary one. The INC party members the applicant claims to fear harm from have political and commercial influence and have demonstrated that they have the capacity to kill for their cause and protect their freedom. The INC party members have both the interest and motive to find the applicant should he seek to live elsewhere. The INC party members have the capacity to use their networks – which are extensive – across India and into Nepal to find the applicant, due to the applicants need to provide information about their identities and background in seeking employment and education as well as the applicant’s desire to continue the court case against the accused INC members. The Tribunal considers that there is the real prospect that the applicants will be able to be tracked and found using the resources available to the INC party members who have an interest in pursuing them. This includes in Nepal.
The Tribunal considers that it is not unreasonable to extrapolate the opportunity for the INC party members to use their resources to find the applicant and his family in India and Nepal. That Nepal is a sovereign nation does not diminish its ties to India, and the connections that exist, including in the political sphere. The open border that provides the applicant and his family the opportunity to enter and reside provides the opportunity for the INC party members to use their resources to track and find the applicant, and once found, the Tribunal considers that the real chance of serious harm as determined in the home region, and in India more generally, remains.
The Tribunal is satisfied therefore that the applicant has a real chance of serious harm for reasons of his actual or imputed political opinion. The Tribunal finds that the harm would be systematic and discriminatory. The Tribunal finds on the evidence before it that the harm he would face would amount to serious harm pursuant to s.91R(1)(b) of the Act.
The Tribunal does not consider that state protection is available to the applicant given the information about the corrupt practices of the authorities and the influence that the INC party members have.
The Tribunal finds that the applicant has a real chance of serious harm in Nepal for a Convention reason, now and in the reasonably foreseeable future. The Tribunal finds that the applicant has a well-founded fear of persecution in Nepal.
Having determined that the applicant has a well-founded fear of persecution in Nepal, pursuant to s.36(4) of the Act, the Tribunal finds that s.36(3) does not apply.
The Tribunal is satisfied that the secondary applicants are the wife and children of the applicant and are therefore members of the same family as the applicant for the purposes of s.36(2)(b)(i) of the Act.

CONCLUDING PARAGRAPHS

For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore the first named applicant satisfies the criterion set out in s.36(2)(a).
The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that the second, third and fourth named applicant are members of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

DECISION

The Tribunal remits the matter for reconsideration with the following directions:

that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Nicola Findson
Member