1619038 (Refugee)

1619038 (Refugee) [2019] AATA 5645 (17 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1619038
COUNTRY OF REFERENCE:                   India
MEMBER:David McCulloch
DATE:17 December 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 December 2019 at 8:37am
CATCHWORDS
REFUGEE – protection visa – India – political opinion – All India Majlis-E-Ittehadul Muslimeen (AIMIM) – conflict with Bharatiya Janata Party (BJP) – credibility concerns – inconsistent evidence – independent country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 on 21 October 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of India, applied for the visa on 17 July 2015. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 13 December 2019. The Tribunal was assisted with the use of an interpreter in the Hindi language.
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. 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 policy guidelines prepared by the Department of Immigration (PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines) and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it DFAT Country Information Report – India, 17 October 2018, a copy of which was provided to the applicant at the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant was granted [a] visitor visa on 11 May 2015, which was valid until 31 August 2015. The applicant arrived in Australia [in] May 2015. The applicant applied for a protection visa on 20 July 2015. Prior to coming to Australia, the applicant worked in [City 1], [Country 1 from] February 2012 [until] November 2014.
The following information is apparent from the applicant’s application for protection forms. The applicant was born on [date] in Hyderabad, Telangana state, India. The applicant lists no ethnicity, and is a Muslim who speaks, reads and writes Urdu and Hindi. The applicant can also read English. The applicant married [in] July 1990 in Hyderabad. The applicant’s wife, two sons and daughter remain in India. The applicant is in contact with them by phone and over the internet. The applicant lived at one address in India in Hyderabad from 1985 until 2012. The applicant lived in [City 1] from January 2012 until November 2014. The applicant returned to the same address in India. The applicant completed high school at [School 1], Hyderabad in [month, year]. The applicant worked for a [company] from 2001 until February 2010. The applicant then worked as [Position 1] for another [company] from February 2010 until May 2015. The applicant worked as a [Occupation 1] for an [specified] company in [Country 1] from January 2012 until November 2014.
The applicant provided a written statement setting out his claims for protection as follows (not corrected for spelling or grammar):
I [the applicant] born on [date] at Hydereabad in Andhra Pradesh in India.
I have completed secondary school education in [year]. I am married. I have 3 children. Two sons and a daughter. My father was Government employee. He born and brought in Hyderabad. I have some extended family members in Sangaredddy district in Andhra Pradesh / Telangana.
After completion of school I have started working in [Industry 1] as an apprentice. My father was Government employee and he is an influential person in my area. He was well known in my area. My father was active political workers of Congress party in his time. My father encourages me to join political party. As a leader my father used to organise meeting and gathering to campaign for local Congress leaders. I sometime was assigned meetings in my area to encourage people vote for the Congress party candidate.
I have joined Majlis Bachao Tehreek (MBT) in 2000 until 2006. It was founded by Mohammed Amanullah Khan as a result of a split from the All India Majlis-e-Ittehadul Muslimen. Amanullah Khan, who was a trusted lieutenant of the then AIMIM President Sultan Salahuddin Owaisi, formed the MBT (Save Majlis Movement) in 1993 after being suspended for protesting against the weak stance that the AIMIM took during the demolition of the Babri Masjid. As a member I use to attend party meetings and canvass for local candidate during election time. I was active in Loksabha election in 2004.
It had rivalry with its parent party AIMIM run and manages by powerful and popular leader and member of Indian parliament Asaduddin Owaisi. I was impressed by Mr Owaisi's work for the Muslim community in Hyderabad and joined AIMIM in 2007.
AIMIM always targeted by the Hindu nationalist organisation RSS and its affiliated wings such as BJP — political wing, VHP — religious wing, Durgawahini — Women wing etc.
After worked as [Occupation 1] with different [Industry 1] and [Industry 2] businesses for more than 15 years I have started [a named] business in partnership. We run that business successfully and I was active politically with my business.
In 2010 I have started my own business [Company 1]. With my business I took part in political activism as AIMIM member. I was active in 2009 Indian Parliament election for Mr Owaisi. He was elected to the Parliament and he supported Congress party at New Delhi.
My trouble started after that election. Due to my active participation BJP and other Hindu parties becoming my enemy. One of the meetings during 2009 election fight broke out between BJP and AIMIM members.
In 2012 one of the local elections BJP attacked MIM party members. I was getting threatening phone calls form unknown numbers. They were threatening to burn my shop and harm my children. I ignored it and continue my business and political work.
In October 2012 my shop was attacked by unknown people. I was get hurt in the incident but luckily not much damage caused to property or other people. I been to the hospital for few hours and later released. I went to police station to lodge complained but police refused to file FIR without assailant identity. I told police I was getting phone calls from people about the attack but they did not register my complaint.
To save my life I went to [City 1] and all the stayed there for two years. I returned to India in November 2014 in a hope that everything now been settled. I was wrong. Within few days I have seen suspicious people around my shop. I started getting phone calls that now you come back you are not safe. In January 2015 during day time when I was going on my motorbike I was attacked from behind. I fell down and people helped me to get up. I was not injured but I was scared. I talked few of my friends and decided to go Sangareddy district and stay there with my extended family members.
I was scared after the incident. One of my friends advised me to lodge police complaint. I went to the police station to lodge complaint. Police told us that the people you are mentioning are well known politician. Police told me that do not go against these people. Police did not lodge any FIR they only make notes of my complaint.
BJP and its workers did not stop there. They threatened my family members to close my shop; we are in real trouble. They also threatened that if you do not leave MIM party and do not stop working for the party they can go to any extent to harm us. My family also has been scared.
BJP now in power at the Centre and Andhra Pradesh Government is ally of BJP. BJP workers and parent organisations RSS, VHF and Bajarangdal going to harm me, if I go back to India. I went to Sangareddy and spend sometime. I contacted travel agent to arrange my visitor visa to Australia. I got visa in May 2015. From Sangareddy directly I went to Hyderabad Airport my son drop my wife and we both came to Australia. After arrival in Sydney my wife fell sick I did not have extra money for her treatment so I sent her back to India.
After I arrived in Sydney I met some one on Railway station. In a casual conversation he suggested me to seek protection in Australia. He helps me to write my story in English.
Australian Government is helpful to the people who are in trouble. I have fear for my life, I am requesting Australian Government to help me and give protection.
Independent information
DFAT Country Information Report – India, 17 October 2018 provides as follows:
According to the Election Commission of India, India has more than 2,000 registered political parties representing diverse political, ethnic and religious interests. Most of these parties have a regional focus and do not stand candidates nationwide. This diversity of representation means that broad coalitions are often required to form governments at the federal level.
For much of the post-independence era, Indian politics has been dominated by the Indian National Congress Party (Congress). However, the Bharatiya Janata Party (BJP) won 282 seats out of 543 elected seats in the 2014 general election, the first time that a single party obtained a parliamentary majority since 1984. The BJP formed government along with its National Democratic Alliance (NDA) partners, who won a further 54 seats. Prime Minister Narendra Modi and his cabinet were sworn in on 26 May 2014. The next general election is due by May 2019.[1]
…
POLITICAL OPINION (ACTUAL OR IMPUTED)
Democratic elections for the Lok Sabha, the lower house of parliament, have been held since 1951. The only exception to this was when the Indian Congress Party’s then Prime Minister Indira Gandhi postponed elections during a period of emergency rule from 1975 to 1977. Notwithstanding the scale and complexity of India’s political landscape, and noting some exceptions, elections in India tend to be peaceful, broadly free and fair, reflect the will of the electorate, and result in regular transfers of power at central and state levels. Activists have occasionally called for communities in conflict-affected areas to boycott electoral processes, and low-level violence has sometimes occurred.
3.21 India has a diverse political landscape, which represents different ethnic, religious, secular and political interests. There are no constitutional, legal or other institutional restrictions preventing minorities from participating in politics. Political parties often court ethnic, religious and caste-based minorities for their ability to deliver ‘vote banks’.
[1] DFAT Country Information Report – India, 17 October 2018, paras 2.28-2.29
Opposition Parties and Critics of the Government
The Constitution protects the right to form associations and unions. This right is subject to ‘reasonable’ restrictions in the interests of public order, decency or morality. Public demonstrations require advance notice and permission of authorities and frequently occur. Intelligence agencies regularly monitor the activities of civil society actors and individuals engaged in particular areas of sensitivity.
There are few publicly available statistics on election incidents. Reports of violence around polling stations do occur during electoral periods.
During 2017, police filed sedition charges against TTV Dhinakaran, the leader of the All India Anna Dravida Munnetra Kazhagam party, and some of his supporters for distributing pamphlets that criticised Prime Minister Modi and the Tamil Nadu Chief Minister.
DFAT assesses that leaders and members of opposition political parties do not face official or societal discrimination. The risk of political violence between rival supporters increases during parliamentary and state elections, especially in states where results are tightly contested. However, in general, elections in India are peacefully conducted.[2]
AIMIM
[2] DFAT Country Information Report – India, 17 October 2018, paras 3.20-3.25
On 3 September 2019, the Tribunal made a request of the Country of Origin Information Services Section of the Department of Home Affairs (COISS) to undertake background research on AIMIM and harm experienced from the BJP.
COISS provided the following response on 8 October 2019. The response extracted below provides the specific questions asked by the Tribunal:
1. Please provide details of reports of serious threats, physical harm and fighting perpetrated by members of the BJP and/or (militant) Hindu groups or organisations directed towards members of AIMIM in Hyderabad, India since 2009.
There was information located on conflict having occurred between the AIMIM (All India Majlis-E-Ittehadul Muslimeen) and the BJP (Bharatiya Janata Party) and other political groups in Hyderabad and Telangana state since 2009. There was also a report of members of the BJP assaulting an AIMIM member in Maharashtra state.
The All India Majlis-e-Ittehadul Muslimeen is also known as the MIM[3] (Majlis-e-Ittehadul Muslimeen).[4]
[3] ‘Indian Muslims Lose Hope in National Secular Party’, Bagri, N T, The New York Times, 8 November 2014, 20191007143336
[4] ‘Bhainsa incident: cases booked against Hindu Vahini, MIM activists’, The Hindu, 21 March 2016, 20191004170157
In April 2010, the BJP demanded a judicial inquiry into riots that had occurred in Hyderabad, claiming ‘that Majlis-e-Ittehadul Muslimeen was involved in the violence’. A BJP report alleged that ‘[t]he riots were undoubtedly pre-planned attacks on Hindus by the Congress and MIM combine’.[5]
[5] ‘BJP demands judicial probe into Hyderabad riots’, Press Trust of India, 23 April 2010, 20191004183336
In April 2011, Akbaruddin Owaisi, the AIMIM leader in the Andhra Pradesh Legislative Assembly, was shot and critically wounded while travelling to a rally. Ahmed Balala, another MIM legislator, was also injured. Four of the attackers, who were ‘understood to be the henchmen of a local tough Mohammed Pehlwan who is aligned with the rival Majlis Bachao Tehreek (MBT) party’, were killed. An ongoing property dispute was ‘believed to be the trigger for the attack’.[6]
[6] ‘MIM leader Akbaruddin Owaisi shot at in H’bad, 4 assailants killed’, Menon, A K, India Today, 30 April 2011, 20191007163919
In September 2014, there were protests held by students at the University of Hyderabad over an ‘incident at the Osmania University, where the hostel room of Sarath Nalliganti, a Dalit student, was burnt by the ABVP activists’.[7] The ABVP (Akhil Bharatiya Vidyarthi Parishad) is ‘a student group affiliated to the Rashtriya Swayamsevak Sangh (RSS), the ideological mentor of the BJP’.[8] One student said it was ‘about the convergence of Dalit and Muslim politics in India. Sarath had joined the MIM and had stood against the BJP candidate. The plan to attack him had been brewing for long’.[9]
[7] ‘University of Hyderabad protests Osmania University hostel fire incident’, Deccan Chronicle, 15 September 2014, 20191004185932
[8] ‘Chargesheet’ against Modi: Activists push ‘people’s agenda’, Asrar, N, Aljazeera, 8 April 2019, 20190408123347
[9] ‘University of Hyderabad protests Osmania University hostel fire incident’, Deccan Chronicle, 15 September 2014, 20191004185932
A November 2014 article in The New York Times indicates that the MIM ‘has its roots in an organization begun in the 1920s to safeguard Muslim interests in Hyderabad, a princely state that had a mainly Hindu population but, in those days, a Muslim prince and ruling class’.[10] It is further stated in the article:
[10] ‘Indian Muslims Lose Hope in National Secular Party’, Bagri, N T, The New York Times, 8 November 2014, 20191007143336
The group became a political party in 1959, and its leaders these days are known for practicing an aggressive brand of communal politics, just as some B.J.P. leaders are. Until now, the party’s influence was confined to its home state Andhra Pradesh, while Muslims in most parts of the country pegged their hopes to the Congress.
Akbaruddin Owaisi, a party leader and fiery orator known for his vitriolic speeches, has been charged several times with hate speech over remarks denigrating Hindu gods and inciting violence. He was arrested last year on charges of inciting communal enmity, sedition and criminal conspiracy for speeches he made in Andhra Pradesh, where he was quoted as saying that India’s Muslims “can take care of” the country’s Hindu majority “if the police stay away for 15 minutes.” In a speech in Mumbai before the election, he accused Hindus of similar sentiments: “They want to finish off Muslims, and end secularism,” he said, according to The Indian Express…[11]
[11] ‘Indian Muslims Lose Hope in National Secular Party’, Bagri, N T, The New York Times, 8 November 2014, 20191007143336
Another article published in Foreign Policy in June 2015, states that Akbaruddin Owaisi, who ‘consistently ridicules Hinduism and Hindu deities’, and ‘makes wild claims about the number of Muslims killed in communal violence… was jailed after a 2012 speech in which he cried that Muslims would need only 15 minutes to show India’s Hindus who is the stronger’.[12] A further report indicates that Akbaruddin Owaisi was jailed for 40 days in 2012 after being booked for hate speech. As at December 2018, there were ‘14 cases [sic] criminal cases against Akbaruddin, filed in different parts of the country, most for promoting enmity between different (religious) groups and for disobeying law-and-order authorities’.[13]
[12] ‘Is Modi’s India Safe for Muslims?’, Traub, J, Foreign Policy, 26 June 2015, CXBD6A0DE9184
[13] ‘Love and Hate in Hyderabad: The Incendiary Political Life of Akbaruddin Owaisi’, Alam, M, The Wire, 11 December 2018, 20191008102552
In May 2015, the Telangana BJP appealed to Prime Minister Narendra Modi ‘to take disciplinary proceedings against Parliament member from Hyderabad Lok Sabha Constituency, Asaduddin Owaisi for his irresponsible utterances remarks on conferring Bharat Ratna[14] on Mr. Atal Behari Vajpayee and Padma Vibhushan on Mr L K Advani’.[15] In a letter to the Prime Minister, the state BJP President, G. Kishan Reddy, also appealed for ‘him to advise the Lok Sabha speaker to annul the membership of Asaduddin owaisi for desecrating the Indian constitution’.[16] Asaduddin Owaisi is the president of the AIMIM and Akbaruddin Owaisi’s brother.[17]
[14] The Bharat Ratna (Jewel of India) is India’s highest civilian honour. See: ‘India outrage after Hindu leader attacks Mother Teresa motive’, BBC News, 24 February 2015, CXBD6A0DE1925
[15] ‘Appeals Speaker to expel Asaduddin from LS : Kishen Reddy’, United News of India, 5 May 2015, 20191004172843
[16] ‘Appeals Speaker to expel Asaduddin from LS : Kishen Reddy’, United News of India, 5 May 2015, 20191004172843
[17] ‘Asaduddin Owaisi and the AIMIM’s rough-and-tumble politics’, Farooquee, N, The Caravan, 10 April 2019, 20191004154338
In February 2016, the Telangana State Council of the Communist Party of India (CPI) ‘condemned the attack by Majlis (MIM) activists on Congress, TRS [Telangana Rashtra Samithi], CPI and BJP activists several division during the polling for GHMC [Greater Hyderabad Municipal Corporation] elections’. The state secretary of the CPI, Chada Venkat Reddy, ‘alleged that the MIM activists had resorting [sic] to violent methods with the fear of losing their existence’.[18]
[18] ‘CPI condemns attacks on other parties’ leaders by MIM’, The Hindu, 3 February 2016, 20191004181032
In March 2016, police at Bhainsa in Telangana state in India ‘registered three cases against the activists of the Hindu Vahini and the Majlis-e-Ittehadul Muslimeen (MIM) for attempted rioting and attack on policemen the previous day following MIM president and Hyderabad MP Asaduddin Owaisi’s visit to town’.[19] Indian daily newspaper, The Hindu, reported that ‘[w]hile two cases were registered against the MIM activists and others in two separate incidents one case was booked against Hindu Vahini activists during a protest staged by the latter against Mr. Owaisi’s stand point on not raising Bharat Mata Ki Jai slogan recently’.[20] Police said ‘that about 30 activists of the Hindu Vahini stand accused of rioting as they had pelted stones on a convoy of the Hyderabad MP’. The two cases against MIM activists were for ‘attempting to ransack shops and attacking policemen while returning to town after seeing their leader off on the outskirts of the town’.[21]
In July 2016, Telangana BJP lawmaker T Raja Singh demanded the arrest of Asaduddin Owaisi after Owaisi offered to provide legal help to ‘five youths arrested by the NIA [National Investigation Agency] on charges of involvement in an alleged ISIS terror module’. Mr Singh was reported to be ‘known for his controversial statements’, and had ‘earlier been booked for alleged hate speeches’.[22]
In June 2018, AIMIM president, Asaduddin Owaisi, criticised the BJP ‘for spreading communal hatred and poison, particularly against the Dalits and the Muslims’.[23]
In August 2018, Syed Matin, a councillor from the AIMIM, was assaulted at the Aurangabad Municipal Corporation in Maharashtra ‘by a group of BJP representatives after he opposed an attempt to move a motion condoling the death of former Prime Minister Atal Bihari Vajpayee’. There was video footage showing some BJP councillors chasing Matin out of the chamber while policemen tried to intervene. Following the assault, he was admitted to hospital. Some MIM supporters then damaged a car belonging to a local BJP leader and assaulted the driver. The 51 elected Shiv Sena-BJP members of the municipal corporation subsequently ‘passed a resolution to expel Syed Matin from the House’. A delegation from the BJP-Shiv Sena also filed a sedition complaint against him.[24]
Another article, which refers to the AIMIM councillor as Sayyed Mateen Rashid, indicates that Mateen had subsequently ‘been booked under Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981 or MPDA’ and ‘sent to judicial custody for a year’. Five BJP councillors were also arrested, charged with non-cognisable offences and released on bail.[25]
An April 2019 article in The Caravan about Asaduddin Owaisi, the president of the AMIM, refers to ‘concerns over the AIMIM’s use of violence’. The article indicates that in February 2019, ‘AIMIM cadres assaulted members of the Congress’s Andhra Pradesh leadership in the run-up to municipal polls in Hyderabad – Shabir Ali, a senior Congress leader, alleged that Asaduddin took direct part – and were involved in at least four cases of hooliganism on the last day of campaigning and on voting day. There are also the worries about the AIMIM stoking communalism’.[26]
The article also refers to the comments of Adnan Farooqui, a professor of political science at Delhi’s Jamia Millia Islamia University who has followed the AIMIM closely for many years, who said that the AIMIM’s ‘initial success in providing, or at least promising, physical security to the Muslims of the old city is still paying off’… ‘They have not been able to do what they have been promising’ – bring in lasting prosperity – ‘but they have done at least something’.[27] There were also ‘persistent accusations’ that Owaisi had ‘collaborated with the RSS or the BJP – including the one by the Congress leader Digvijaya Singh, during the Bihar campaign’, which Owaisi rejected.[28]
...
2. Please indicate as to whether such adverse action towards AIMIM members is frequent, ongoing and systemic in Telangana State and elsewhere in India.
Please see the answer to Question 1 above.
[19] ‘Bhainsa incident: cases booked against Hindu Vahini, MIM activists’, The Hindu, 21 March 2016, 20191004170157
[20] ‘Bhainsa incident: cases booked against Hindu Vahini, MIM activists’, The Hindu, 21 March 2016, 20191004170157
[21] ‘Bhainsa incident: cases booked against Hindu Vahini, MIM activists’, The Hindu, 21 March 2016, 20191004170157
[22] ‘BJP Seeks Asaduddin Owaisi’s Arrest For Offering Legal Aid To Terror Suspects’, Press Trust of India, 3 July 2016, 20191008135119
[23] ‘Interfaith couple row: Congress, Qwaisi slam BJP for fuelling hatred’, The Times of India, 21 June 2018, CXBB8A1DA29921
[24] ‘Councillor roughed up over motion’, Ganguly, A, The Telegraph, 18 August 2018, 20191007144901
[25] ‘Maharashtra corporator sent to jail days after he opposed condolence motion for Vajpayee’, Scroll.in, 23 August 2018, 20191008124545; See also: ‘Corporator Who Refused to Join Vajpayee Condolence Meet Jailed for One Year’, Shantha, S, The Wire, 24 August 2018, 20191008125527
[26] ‘Asaduddin Owaisi and the AIMIM’s rough-and-tumble politics’, Farooquee, N, The Caravan, 10 April 2019, 20191004154338
[27] ‘Asaduddin Owaisi and the AIMIM’s rough-and-tumble politics’, Farooquee, N, The Caravan, 10 April 2019, 20191004154338
[28] ‘Asaduddin Owaisi and the AIMIM’s rough-and-tumble politics’, Farooquee, N, The Caravan, 10 April 2019, 20191004154338

In the hearing the Tribunal provided the applicant with a copy of this COISS research and discussed it with him.
Hearing, credibility, findings and assessment
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at [596]. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at [288]), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at [169-70]; Luu & Anor v Renevier (1989) 91 ALR 39 at [45]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at [451] in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191] where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of India and accordingly his claims will be assessed against India.
The Tribunal has the following credibility concerns with the applicant’s claims.
Firstly, the applicant has not provided consistent evidence over time as to his shop being destroyed in an attack in 2012 by his political opponents and the business being subsequently closed permanently.
These are claims made by the applicant both in the interview with the delegate and in the Tribunal hearing. In the Tribunal hearing the Tribunal sought to confirm with the applicant that his [business] was closed after the attack in 2012, and he confirmed that it was. The applicant indicated that on his return from [City 1] in November 2014 he did not work for the period until he came to Australia in May 2015.
The Tribunal put to the applicant in the hearing that his evidence that his shop was permanently closed after the political attack on it in 2012 was inconsistent with other evidence provided by the applicant. The Tribunal noted that in his application forms for the protection visa the applicant had indicated that this [business] had operated until May 2015, the month he came to Australia. The Tribunal also noted that the applicant’s written claims provided as part of his application for protection indicated that, on his return from [City 1] in November 2014, that there were suspicious individuals around his shop premises. Those written claims also indicated that, at this point in time, family members were being threatened to close the shop. The Tribunal also noted that the delegate’s decision, a copy of which has been provided by the applicant to the Tribunal, indicates that at the time that the applicant applied for his visitor visa to enter Australia he had been contacted by a Departmental officer and in that conversation the applicant indicated that his two sons were running his business.
The Tribunal noted to the applicant that all of this evidence was inconsistent with claims that the [business] had been permanently closed after a political attack in 2012. This could undermine credibility in relation to political attack claimed by the applicant and the fact of permanent closure of the applicant’s business as a result, and undermine the applicant’s credibility generally.
In response, the applicant indicated that the business was being run by other individuals, with profits going to the applicant.
The Tribunal is not satisfied that this explanation explains the inconsistencies. The applicant categorically indicated in the hearing that the business had been closed as a result of the attack in 2012. The applicant did not qualify his response, which the Tribunal considers he would have done if true, that the business was in fact being run by others but with profits going to the applicant. This would suggest a continuing ownership role of the applicant in the business.
The inconsistency on this issue goes to the applicant’s claims of harm faced by the business from political rivals in 2012. It undermines the truth of the applicant’s claims in this respect. It is further undermining of the applicant’s credibility generally in terms of the fact that he has clearly not been truthful as to relevant claimed circumstances.
Secondly, the applicant has not been consistent in terms of his ceasing involvement in AIMIM. In the interview with the delegate, the applicant indicated that he ceased his involvement with AIMIM at the time he left for [City 1] in 2012 after his shop was vandalised. The applicant indicated that at this point he had become disillusioned with AIMIM and the lack of regard of leaders for workers. The applicant did not continue to have political involvement in AIMIM or otherwise on his return to India in November 2014.
The Tribunal explored with the applicant in the hearing the extent, if any, of his political involvement on return to India in November 2014. At first, in response, the applicant indicated that he would meet with AIMIM members. The Tribunal pressed for more details of this because the applicant was vague and unclear as to whether he engaged in specific political activity. The applicant then indicated that, on return in November 2014, he did engage in specific activity for AIMIM similar to what he had done before in terms of organising rallies and meetings. The Tribunal asked the applicant as to the context of him organising meetings and rallies when there was not an election. The applicant indicated that such activities would still nevertheless take place outside of election periods.
The Tribunal put to the applicant that this evidence in the hearing was inconsistent with his evidence in the interview with the delegate that he had ceased his political involvement with AIMIM in 2012 after his shop was vandalised. In response, the applicant indicated that he had told the Tribunal in the hearing that he would only meet with AIMIM members but not engage in actual political involvement.
Whilst this is what the applicant may have initially told the Tribunal in the hearing, when the Tribunal explored the matter further, the applicant was quite clear that on return from [City 1] he was involved with AIMIM in the same type of senior organisational support that he had been involved with prior to his departure for [City 1].
This is an inconsistency which causes the Tribunal to have credibility concerns as to the applicant’s claimed political activities and circumstances over time. It is undermining also of the applicant’s credibility generally.
Thirdly, the applicant has not been consistent in claims as to the level of his involvement in AIMIM and whether he had been particularly singled out by his political opponents because of his political profile.
In the interview with the delegate, the applicant indicated that he did not have a profile beyond being an ordinary member of AIMIM. He indicated that he was targeted just on the basis that any ordinary member of AIMIM would be targeted. This was inconsistent with the applicant’s evidence in the hearing, in which he indicated that he had a key and higher level organisational role and it was for this reason that he was particularly singled out for attack from political opponents.
When this inconsistency was put to the applicant in the hearing, he indicated that he had no comment. The Tribunal has credibility concerns in relation to the applicant’s claimed level of political involvement and credibility concerns in relation to the applicant generally as a result of this inconsistency.
Fourthly, the applicant has not been consistent in claims that his children were threatened in addition to himself in phone calls he had received from political opponents leading up to his shop being vandalised in 2012. The applicant’s written claims provided as part of his protection visa application state that at this time he was getting threatening phone calls from unknown numbers from individuals who were threatening to burn his shop and harm his children.
In the hearing, the Tribunal explored with the applicant the nature of the threats he had received by telephone prior to the claimed vandalising of his shop in 2012. The Tribunal asked the applicant on a number of occasions in the hearing to indicate if threats were made to other individuals other than himself. In response, the applicant referred to threats being made to the other organisers like himself in AIMIM but referred to threats to no one else. The Tribunal sought to confirm this with the applicant and that threats had not been made to anyone else. The applicant did not provide an indication that threats were made to others.
The Tribunal put to the applicant in the hearing that the evidence he had given in the hearing as to the extent of threats and to whom they were made at this period of time did not appear to be consistent with his written claims in which he indicated that threats at this time were made to his children. The Tribunal would consider the making of such threats to have been impactful and likely to be remembered by the applicant.
In response, the applicant indicated that he had misunderstood the questions and thought he was being asked about threats being made to party people only.
The Tribunal did not qualify the question in this respect. Whilst this is not a credibility issue on a tangential or overly central matter, the Tribunal has some credibility concerns as to the lack of consistency in evidence as to who was threatened in phone calls. The credibility concern buttresses more significant matters.
Fifthly, the independent information before the Tribunal does not support the position that an individual who was politically involved in AIMIM for a number of years in the past, but who would not be politically involved on return to India, would face a real chance of serious or significant harm in India based on that past political involvement.
The applicant in the hearing indicated that he would not be politically involved on return to India. The Tribunal put to the applicant that the combination of information in the DFAT report on India in combination with the specific COISS research as to friction and violence as between the BJP and AIMIM members and representatives would not support the position that the applicant would face harm as a result of his past involvement in AIMIM of at least four years previously. The Tribunal did acknowledge to the applicant that the COISS research did indicate instances of some difficulties faced by political opponents in riots and skirmishes, and difficulties faced by elected representatives and leaders. However, cumulatively considered, the independent information would not support the position that the political situation in India is so fractious and enmities so long standing and entrenched that an individual who had been involved in politics and AIMIM at least four years previously would currently be targeted in India, particularly given that they would not have continuing political involvement.
In response, the applicant indicated that he would still feel a risk in returning to India given his past political involvement, and he is the one who would have to face this.
The Tribunal is not satisfied that the balance of the independent information before the Tribunal as to the political situation in India and the situation relating to difficulties suffered by AIMIM members supports the position that the applicant would be targeted many years later as a result of political activities at least four years previously in the context where the applicant did not continue to be politically involved.
Before considering these five credibility concerns, the Tribunal notes the following overall explanation by the applicant for various inconsistencies put to him. At the commencement of the hearing, the Tribunal asked the applicant if there were any impediments to him answering questions and discussing his claims with the Tribunal. The applicant in response said that there were not. However, later in the hearing, when the Tribunal was putting to the applicant the various inconsistencies and problems with his claims raised as identified in the credibility concerns, the applicant indicated that his health was not good and it is hard for him to recollect. The applicant indicated that he can’t remember anything.
Given the applicant’s earlier indication in the hearing that he was not suffering from any impediment in terms of his ability to provide evidence, the Tribunal is not satisfied as to these later claims of health impediments affecting his memory and ability to recall. The Tribunal considers that this was a manufactured explanation to overcome the various inconsistencies that were being put to the applicant in relation to his evidence.
The Tribunal considers the first four credibility issues. Considered cumulatively, they are significantly adverse in terms of the applicant’s credibility and the truth of core claims leading to why he faces harm on return to India. The Tribunal is not satisfied that the applicant has been a truthful witness in relation to central claims. The Tribunal is not satisfied that the applicant or his children were threatened by political opponents leading up to his opponents destroying his shop and injuring the applicant in 2012. The Tribunal is not satisfied that the applicant was hospitalised or made a report to police following this incident. The Tribunal is not satisfied that the shop was closed at this point in time. The Tribunal considers that the shop was operating when the applicant came to Australia in May 2015 and continued to be operated by his children.
The Tribunal is not satisfied that claimed political difficulties in India caused the applicant to decide he needed to flee to [City 1] for his safety. The Tribunal considers that the applicant went to [City 1] for other reasons, most particularly for employment opportunities.
The Tribunal is not satisfied that on return to India in November 2014 the applicant reengaged politically. The Tribunal is not satisfied the applicant started to receive threatening phone calls on return. The Tribunal is not satisfied that the applicant was attacked on a motorbike in January 2015 by political opponents either as a result of his political activities before he left for [City 1] in 2012 or because of reengaging in political activities on return to India in November 2014. The Tribunal is not satisfied that the applicant fled Hyderabad as a result of these difficulties to stay with relatives who lived in a town 60 km away.
The Tribunal is not satisfied that the applicant has been particularly targeted or singled out by members of the BJP or any other political organisation. The Tribunal is not satisfied that there is any continuing desire by the BJP or others involved politically to harm the applicant as a result of his political activity.
The Tribunal does accept that the applicant has had some involvement with AIMIM as an ordinary member. The Tribunal however does not accept that the applicant was a high level organiser as he claimed in the hearing. The Tribunal considers that the truth of the situation is the applicant’s evidence in the interview that he ceased his political activity with AIMIM when he went to [City 1] in 2012 because he became disillusioned with more senior people in the organisation. The Tribunal accepts the applicant’s claim in the hearing that he would not be politically involved on return to India.
As discussed in the fifth credibility issues, the Tribunal does accept that the independent evidence before the Tribunal indicates that there have been some adverse incidents, violence and skirmishes between AIMIM and BJP office holders and some members in Hyderabad. However, the Tribunal would not be satisfied that the extent and level of such difficulties would lead to a real chance of an ordinary member of AIMIM facing a real chance of serious or significant harm as a result of their ordinary membership. Further, as the Tribunal finds that the applicant would not be politically involved on return to India in AIMIM or otherwise, the Tribunal finds that the applicant does not face a real chance of serious or significant harm as a result of continuing political involvement.
The Tribunal would not consider, on any measure of the independent evidence, that the applicant would face a real chance of serious or significant harm on return to Hyderabad in 2019 or beyond as a result of his membership and involvement in 2012 and prior in AIMIM simply on the basis of having been an ordinary member of that organisation. As indicated, the Tribunal is not satisfied that the applicant has had a political role of any particular profile or significance or has been specifically targeted for harm.
In light of the Tribunal’s findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a reason set out in s.5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk of him suffering significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
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.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)   the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 5645

17 December 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction