1619620 (Refugee)

1619620 (Refugee) [2018] AATA 4850 (10 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1619620
COUNTRY OF REFERENCE:                  India
MEMBER:Nicola Findson
DATE:10 October 2018
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 October 2018 at 10:58am
CATCHWORDS
REFUGEE – protection visa – India – religion – Christian convert – assisted Muslim family – communal violence – physical assault – threats of violence – fear of killing – internal relocation – delay in applying for protection – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2

CASES
Andaraj Subramaniam v MIMA [1998] FCA 305
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 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 15 October 2015, and the delegate refused to grant the visa on 4 November 2016.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself 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.56, 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Background and protection claims
The Tribunal has before it the Department’s file [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 (a copy of which the applicant provided to the Tribunal), as well as other material available to it from a range of sources.
In his visa application, the applicant states he was born on [date], in [Tiruchirappalli], India. He states he attended school in Tamil Nadu between [specified years], and lived in Mumbai between 2004 and 2008. He states he is of the Christian religion and is fluent in Tamil, English and Hindi.
[In] December 2013, the applicant arrived in Australia as the holder of a subclass 400 Temporary Work (Short Stay) visa, which was valid until [March] 2014. [In] February 2014, a nomination for a business sponsorship was lodged and the applicant lodged an associated application for a Class UC subclass 457 Temporary Work (Skilled) visa. Although the business sponsorship was approved [in] May 2014, the applicant’s subclass 457 application was withdrawn [in] July 2015. The applicant became an unlawful non-citizen when his bridging visa subsequently ceased [in] August 2015. He lodged his protection visa application on 15 October 2015.
The following is a summary of the claims and information provided by the applicant in his protection visa application:
·He is Hindu by birth but converted to Christianity.
·In his home province of Tamil Nadu around 90% of the population are Hindu.
·His area was affected by political strife during election time when strictly religious Hindus wanted to kill the Muslim and Christian communities residing there.
·His father allowed a Muslim family, who he was friends with, to hide in their house – for three days - until they were able to seek aid from the government and arrange to settle in another State.
·The police are not trustworthy because most officers are Hindu.
·His family, as Christians, believe in visiting the church on a daily basis, if possible.
·He claims his family was targeted by local politicians who thought they were trying to convert others to Christianity. He claims his father considered relocating to another state because he was threatened every now and then by these politicians.
·His father used his contacts to arrange for him to work in the [specified] industry in [Country 1] in 2008.
·Although he stayed in [Country 1] for a few years, since there is no way to permanently stay in [Country 1] he decided to move to another country to settle.
·He has not returned to India since 2008 because his family is still under stress and his father has advised him not to return there.
·After he left India, his father was threatened as to his whereabouts. He claims that his father was forced to relocate to another state to save other members of his family.
·The fundamentalist Hindus discovered his father had helped a Muslim family and tried to kill him in a way that looked like an accident.
·The Hindu fundamentalists are preventing his family getting basic facilities.
·He is unable to obtain state protection because the Hindu fundamentalists have strong political contacts.
The Delegate’s Decision
The delegate’s decision record sets out his findings and reasons for refusing to grant the applicant a protection visa. The decision record indicates that given the applicant’s vague claims and lack of supporting evidence, the delegate did not accept the applicant is a practising Christian. The decision record also sets out that although country information does indicate that Hindu nationalist groups were active in Tamil Nadu, the applicant’s home area, around the time of the May 2014 elections that put the Bharatiya Janata Party in power, the applicant arrived in Australia in 2013 and has not returned to India since then. The delegate noted that the applicant became a temporary resident of [Country 1] in 2008 and was in [Country 2] for two months prior to coming to Australia. The delegate noted that the applicant returned to India in 2010, which indicated that at that time he did not hold a fear of harm. The delegate noted that the applicant arrived in Australia in December 2013, but did not seek protection until October 2015, when he had become an unlawful non-citizen and had few other visa options open to him, and that this undermined the credibility of his claims. The delegate also considered that in Tamil Nadu, in particular the cosmopolitan city of Chennai, state protection is available and durable.
Application for review
The applicant lodged an application for review with this Tribunal on 21 November 2016. 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.
The Tribunal records that the applicant was invited to a hearing before it on 10 August 2017. However, on 9 August 2017, the applicant wrote to the Tribunal and informed it that he was unable to attend his hearing because he was suffering with symptoms associated with food poisoning. The applicant attached a medical certificate and requested a new hearing date. Despite having concerns about the adequacy of the medical certificate provided, the Tribunal acceded to this request and arranged for a new hearing to be conducted on 24 August 2017.
The applicant appeared before the Tribunal on 24 August 2017, to give evidence and present arguments. The Tribunal adjourned this hearing when, despite the applicant indicating to the Tribunal that he did not require the services of an interpreter, it became apparent to the Tribunal that an interpreter would be required to proceed with the hearing. The resumed hearing was conducted on 23 October 2017, with the assistance of an interpreter in the Tamil and English languages.
At his Tribunal hearing, the applicant confirmed his name and personal details. He confirmed that he was born in [Tiruchirappalli], in Tamil Nadu, India. He confirmed that his parents remain living in his home village, and his siblings – [specified] – also remain in Tamil Nadu. He told the Tribunal that he maintains regular contact with his family in India. He said he completed his secondary schooling in India and attained [further qualification], by correspondence, from [a named institution]. He said he moved to Mumbai, by himself, in [year range] and worked as a [profession] there. He said he worked for [a business] in Mumbai and in about 2008, the opportunity arose for him to leave Mumbai and relocate to [Country 1] with this company. He said that in October 2013, he travelled to [Country 2] with his employer and spent three months helping establish a new [business] there. He said he arrived in Australia in December 2013, as the holder of a temporary work visa, to establish another new [premise] for [the business].
The applicant confirmed that he completed his protection application himself and was satisfied the contents of it were true and correct.
The applicant claims to fear serious harm on return to India because he is a Christian convert living in a mainly Hindu community.
At his hearing, he claimed that he was introduced to Christianity, along with his father and sister, in about 1992 when his mother was hospitalised and facing a grim prognosis in respect of a significant [injury]. He indicated to the Tribunal that after seeking solace and praying for his mother at the Hospital Chapel, and after she made a miraculous recovery, he and his parents and one of his sister’s converted from Hinduism to the Christian faith. He told the Tribunal that after their conversion, he and his family members stopped attending their local Hindu temple and started attending a Catholic church – [named] – in his home area, every Sunday. The applicant said he was baptised in about 1995. He told the Tribunal that after his baptism he had on occasion accompanied the Priests of the church on “home visits”, to pray with friends and members of their church who were experiencing difficulties and ill-health.
He claimed he and his family had lost respect in his village and had been verbally assaulted by extended family members as well as other members of their village because of their conversion to Christianity. He said unpleasant remarks were directed to him whenever his relatives saw him. He said these words hurt him and created stress in his life and it was this treatment that forced him to flee to Mumbai in [year range]. The applicant did not raise any further problems he had encountered until he was specifically asked by the Tribunal about whether he had suffered any physical harm on the basis of his religious beliefs. By way of response to the Tribunal’s probing, the applicant claimed he had also been physically assaulted in about 1996 while walking home from church. He told the Tribunal that “a few boys got together and made some derogatory remarks, like ‘Here goes the Christian’ and then they assaulted me”. He said he was held down by one boy while two others hit him with their fists and wood. He said his face was injured. He said he could not complain to anyone about this incident and did not seek any medical treatment.
The applicant claimed to have continued his religious practice when he moved to Mumbai. He told the Tribunal that he attended two churches [when] he had the time, mostly on his days off work. He said he was unable to attend Sunday services, but he usually had a Wednesday off work and would visit the church on that day to pray. He told the Tribunal that he learned about a church being burned in Mumbai which made him realise that there was a real problem there for Christians also, so when the opportunity came for him to leave India and go to [Country 1] with the company he was working for, he took it so he could be in a ‘safe’ place.
The applicant told the Tribunal that he took the opportunity to leave [Country 1] in 2013 with his employer, because it was not “ideal” for him to stay in [Country 1], which is a Muslim country, and he wanted to live in a Christian country. He travelled to [Country 2] in October 2013 and remained there for three months. He said he then he came to Australia in December 2013.
The applicant indicated to the Tribunal that he attended churches in [Country 2] and Australia to pray on his days off. He said that since arriving in Australia he had lived in [specified cities] and had visited churches in all of those cities. When asked about the church he attends in [his current city], he told the Tribunal that he was unable to recall its name, but it is close to the hospital in the CBD. He said he visits the church to pray on his day off work - a Monday. He told the Tribunal that he also reads the bible twice a day. He indicated to the Tribunal that one of his favourite bible stories is about Jesus feeding a large crowd with a few loaves and fish.
The Tribunal asked the applicant whether his family had encountered any problems in India because of their religious conversion. The applicant told the Tribunal that his parents had always had a close association with their extended family, but after their conversion they became strangers. When probed as to whether there had been any other problems, the applicant said his parents had not been physically harmed like him because they were elderly, but they were mentally and emotionally affected by the treatment they received from their relatives. When the Tribunal noted that his parents were not elderly when they converted about 25 years ago, the applicant replied that he left his village in [year] and even if something had happened after that, his father would not have told him. He went on to claim however, that his parents have lived between their family home as well as the homes of his [specified relatives] for the last five or six years, to avoid stressful encounters with extended family and other villagers. He told the Tribunal that his sister, who had also converted, had not had any problems.
The applicant indicated to the Tribunal that the last time he saw his parents was in October 2013, when he spent time with them briefly in Chennai.
The Tribunal asked the applicant what he feared would happen to him if he returned to India. The applicant responded that Christians are not safe in India and he would not go back there.
The applicant indicated to the Tribunal that he understood why the delegate had refused his application. He indicated that he did not want to make any comment in relation to the delegate’s decision record.
The Tribunal asked the applicant to comment on the delegate’s concerns that he was not a practising Christian. The applicant responded that he had not provided supporting documents and perhaps this was why the delegate did not believe him.
The Tribunal discussed with the applicant the significant inconsistencies in the claims he set out in his written application and those in his oral evidence. The Tribunal put to the applicant that his written application makes no mention of any physical harm suffered by him on the basis of his religious beliefs in India. The Tribunal also put to the applicant that his written application, amongst other things, sets out that there were Hindus that wanted to kill the Christians and Muslims in his town; that fundamentalists discovered his father was helping a Muslim family and tried to kill him in a way that looked like an accident; and that local politicians were targeting his father. However, despite being given ample opportunity to do so, he had not made mention of any of these problems in his oral evidence to the Tribunal. The applicant told the Tribunal that these things did happen. He said he had learned from his sister that his father has had problems. He said he was emotionally affected and did not want to relive these things, which is why he had forgotten to raise them.
The Tribunal discussed with the applicant country information, which was also set out in the delegate’s decision record, regarding the situation for Christian converts in India. Specifically, the Tribunal referred the applicant to a Department of Foreign Affairs and Trade (DFAT) report[1] that indicates that persons who have converted to Christianity have generally co-existed peacefully with members of other religious groups in India. The Tribunal indicated to the applicant that while there have been recent reports of right-wing Hindu organisations allied to the BJP conducting “homecoming ceremonies” in which Christians and Muslims are re-converted to Hinduism, and some participants in these ceremonies have allegedly been threatened with violence if they did not participate, in discussing these incidents of violence the report states that they represent a moderate risk of social discrimination and violence and that generally speaking most Christians can go about their lives without incident. The applicant by way of response told the Tribunal that the government in India is a Hindu government that gives preference to Hindus. He said that the news about the oppression of Christians is blocked. He also said that those Christians who are able to live without problems in India are rich people. He maintained that the oppressive treatment of Christians existed during the time he was in India.
[1] DFAT Country Information Report India (15 July 2015)

The Tribunal put it to the applicant that there was a long delay between his arrival in Australia and making his protection visa application. It explained that it might conclude that such a delay indicated that he did not have a genuine fear of returning to India. The applicant said he did not know about protection visas when he arrived in Australia. He said he had hoped to remain in Australia on the basis of his skills, but when the permanent residency he had been promised by his employer did not eventuate, he lodged his protection visa application.
The Tribunal asked the applicant if he had considered returning to Mumbai - where he lived for about ten years without incident - or another part of India to continue to practice his religious faith and to avoid the harm he says he faces. The applicant said he left Mumbai because he eventually realised it was not safe to live there. He said Christians have no protection anywhere in India. He said he would not return to India.
The applicant told the Tribunal that there were no other reasons for him to fear returning to India.
The Tribunal explained that it would put information to the applicant pursuant to s.424AA of the Migration Act which, subject to his comments, would be the reason or a part of the reason it would affirm the decision under review. It explained the applicant has the opportunity to seek an adjournment before providing a response to the information.
The Tribunal put to the applicant that he left India in 2008 and since then had lived and worked in [Country 1] for about five years; he had travelled to [Country 2], but not made any claims for protection there; and he had arrived in Australia in December 2013 but did not make any application for protection at that time – instead he had worked on a temporary work visa, lodged an application for a skilled work visa which was later withdrawn, and then remained in the country for about one year without legal status. He finally made an application for protection in October 2015. The Tribunal explained to the applicant that his visa history may indicate to the Tribunal that he does not have a genuine fear of persecution in India, and casts doubt over his credibility. The Tribunal also put to the applicant that the significant inconsistencies between the applicant’s claims set out in his written application and his oral evidence, in particular as to whether he and/or his father had ever encountered harm in India on account of their religious conversion to Christianity, also might lead the Tribunal to think that he did not fear genuine harm in India and casts doubt over his credibility and claims.
The applicant sought to provide his response to the s.424AA information in writing following the hearing. On 6 November 2017, the Tribunal received the applicant’s response. As to why he had not claimed protection in Australia earlier than he did, or when he visited [Country 2], the applicant indicated that he did not know this visa option existed. He indicated that he had striven to improve himself professionally after he arrived in Australia. He indicated he had planned during his employment tenure with his employer to make inquiries with the Department as to what he could do to stay in the country to get away from the persecution in India. He said however, that the [business] he was working for fell in to breach of contract with their parent franchise and seemed destined to close, so he chose to leave their employ and move to another company who agreed to help him secure a permanent visa. He said that when the second company asked him to pay for his application to secure permanent residency, it became clear that he would have to plead for mercy to stay in Australia. He said during this time he was worried about his situation; he had his father repeatedly telling him not to return to India; and he received a letter from the Immigration Department telling him to leave Australia, so he lodged his protection visa application to enable him to stay in Australia to be safe and to practise his Christian faith. As to why he had failed to mention the attack on his father during the hearing before the Tribunal, he indicated that he had previously submitted a document describing the “entire progression of persecution against my family and me” to the Department and so was unsure whether he needed to repeat the incident. He also indicated he was anxious at his hearing and apologised for the “oversight”.
The applicant also provided the Tribunal with an undated letter purporting to be from [a reverend] which states that the applicant attended his church in Tamil Nadu and was baptised [in] June 1995. A photograph of the applicant alongside a Catholic Bishop who the applicant indicates is from the [named church] was also provided to the Tribunal.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations in respect of the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant travelled to Australia on a valid Indian passport, a copy of which is contained on the Departmental file. The Tribunal accepts that he is an Indian national and has assessed his claims against that country.
Before finalising this decision record, the Tribunal listened to the audio recording of the applicant’s hearing and based its decision on the consideration of that recording.
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. Although the concept of onus of proof is not appropriate in administrative enquiries and decision-making, the relevant facts of an 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 accept uncritically any and all of the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims. The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at paragraph 196 197 and 203 204 recognises the particular problems of proof faced by an applicant for refugee status and states that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt. Given the particular problems of proof faced by applicants a liberal attitude on the part of the decision maker is called for in assessing refugee status.
On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547). On the other hand, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true (See MIMA v Rajalingam (1999) 93 FCR 220).
The Tribunal carefully considered all of the evidence in this case, including the applicant’s written application, his oral evidence and claims, and the relevant country information. Having done so, it formed the view that the applicant has exaggerated his claimed fear of harm because of his religious beliefs. The Tribunal is inclined to accept that aspects of his claims are credible, including that he (along with his parents and his sister) converted to the Christian faith in 1992 and has attended a Christian church in his home area as well as in Australia. However, it found that vital aspects of his claims, including that he and his father have been harmed because of their religious faith and activities, to be vague and contrived. The Tribunal concluded that the applicant does not objectively face a real chance or a real risk of serious or significant harm in India for the reasons that follow.
The Tribunal was persuaded that the applicant articulated a genuine faith, placing emphasis on leading a Christian life. The Tribunal considered the applicant’s involvement in the church life and has some concerns about the applicant’s adherence to the Christian religion since he left Tamil Nadu in 1998 - because of his evidence that he has only visited churches in the places he has resided since then, to pray by himself on his days off work. However, it nevertheless accepts, on the basis of all the evidence before it, that the applicant attended church services with his parents and sister in his home area in India, and did on occasion accompany church leaders to pray with members of their church who were experiencing ill-health. Ultimately, the Tribunal was satisfied that the applicant holds a genuine Christian faith.
However, in this case, after reviewing all of the evidence before it, the Tribunal does not accept the applicant’s claims to have suffered harm because of his Christian beliefs are credible for the reasons that follow.
Firstly, the applicant has provided inconsistent evidence about the harm both he and his father have encountered in India, which casts doubt about his claims for protection. Specifically, the applicant raised a claim at his hearing of having been physically harmed by villagers in his home area because of his religious beliefs, which was not identified in his written application. In addition, in his written application the applicant claimed (amongst other things) that fundamentalist Hindus were aware of his family’s Christianity and also discovered his father was helping a Muslim family so they harassed him and also tried to kill him in a way that looked like an accident. Further, the applicant claimed in his written application that his father “had to move to another state to save the other member[s] of my family”. However, despite being given ample opportunity to do so at his hearing, the applicant did not make mention of any of these problems in his oral evidence to the Tribunal. Instead, he told the Tribunal that while his family had lost the respect of their extended family because of their conversion to Christianity, his father had not encountered any problems because of his religious beliefs like he had because he was elderly. When this inconsistent evidence was pointed out to the applicant at the hearing he subsequently responded in writing that he had previously submitted a document describing the “entire progression of persecution against my family and me” to the Department and he was unsure whether he should have repeated the incident concerning his father. He also indicated he was emotionally affected and did not want to relive these things, which is why he had forgotten to raise them. However, because his written claims and his oral evidence are so vastly different, and because the incidents relating to him and his father are so significant to his claims for protection, the Tribunal does not accept this explanation. The Tribunal is also satisfied that the applicant was able to meaningfully participate and provide his evidence in the Tribunal proceedings. The Tribunal has considered his oral and written submissions where he seeks to explain the inconsistencies in his evidence. However, for the above reasons, the Tribunal finds the inconsistencies in his evidence are not due to being stressed or “emotionally affected” or not realising he had to restate all of his claims. Rather, the Tribunal assesses the applicant’s inconsistencies in his present claims as compared to his earlier claims are due to the applicant’s exaggeration and fabrication of aspects of his claim for the purposes of bolstering his protection visa application. The significant inconsistencies in his evidence leads the Tribunal to have significant concerns about the credibility of the applicant’s claims to have suffered harm because of his religious beliefs.
Secondly, despite the applicant’s evidence that he left India because of the problems he was experiencing there because of his Christian faith, he lived in Australia for almost two years before making claims for protection after exhausting other visa options. The applicant gave evidence that he wanted to live in a Christian country and gain residence through his skills. However, when things did not work out that way, he was forced to lodge his protection application. However, as the Tribunal noted in the hearing, the applicant had left India in 2008; had been a temporary resident in [Country 1] for five years; had not made any attempt to lawfully remain in [Country 2] in the three months he had spent there immediately before coming to Australia; and after his subclass 457 visa application was refused by the Department he remained in Australia unlawfully for some time. The Tribunal finds the applicant’s actions suggest that he had wanted to secure a migration outcome in Australia and sought protection after he had exhausted all other migration opportunities available to him. The Tribunal also rejects the applicant’s explanation for the delay when he claims he did not know applying for a protection visa was an available option for him, as it finds him a person capable of informing himself of his visa options in Australia. The applicant arrived in Australia in December 2013; worked after his arrival, including establishing a business franchise; and has had access to migration assistance since arriving in Australia. The Tribunal considers it difficult to fathom that the applicant would not have taken steps to discuss with any migration agent, or the Department, his Christian beliefs, in relation to which he claims he could face harm if returned to India. The Tribunal refers to the decision in Selvadurai v MIEA & Anor (1994) 34 ALD 346 in which Justice Heerey found that a delay in lodging a refuge application was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution. In Andaraj Subramaniam v MIMA [1998] FCA 305 Justice Carr agreed with Heerey J in Selvadurai as a matter of principle that the period of time which elapses between an applicant’s arrival in Australia and the time when he or she claims refugee status is a legitimate matter to take into account when assessing the genuineness or at least depth of an applicant’s fear of persecution. His Honour went further and found that such a delay is a legitimate matter which the Tribunal is entitled to take into account when deciding whether to believe an applicant. The Tribunal finds the applicant’s substantial delay in seeking protection raises doubts about his claims and the genuineness of his fear.
The applicant gave evidence that he returned to Channai in India to spend time with his parents in 2013, which suggests that he did not have a genuine fear of harm in India at that time.
The Tribunal also finds that important aspects of the applicant’s claims are not supported, or weakened very significantly, by independent country information. For example, country information indicates that people who have converted to Christianity have generally co-existed peacefully with members of other religious groups in India. DFAT set out that while there have been reports, since the May 2014 elections, of right-wing Hindu organisations allied to the Bharat Janata Party conducting “homecoming ceremonies” in which Christians and Muslims are re-converted to Hinduism, and some participants in these ceremonies have allegedly been threatened with violence if they did not participate, these ceremonies represent a moderate risk of social discrimination and violence and generally speaking most Christians can go about their lives without incident. Having regard to all of the country information before it, as well as the fact that the applicant left India in 2008 and the inconsistencies in his evidence about the harm he and his father have experienced, the Tribunal formed the view that the applicant has exaggerated his claims of being at risk of serious harm because of his conversion to Christianity in India.
Based on the Tribunal’s assessment of the applicant’s unreliability as a witness, and having regard to all of the evidence, the Tribunal does not accept the applicant’s claims regarding the problems he and his parents have had because of their religious conversion are credible. The Tribunal does not accept that the applicant or his parents have ever been harassed or harmed by extended family members, or Hindu fundamentalists, or others in their home area (including politicians), in India because of their religious beliefs, as claimed. Nor does the Tribunal accept that the applicant has a genuine fear of serious harm as a result of converting to the Christian faith. The Tribunal does not accept that the applicant’s father has been targeted for harm by fundamentalist Hindus or anyone else for hiding a Muslim family, or attempting to convert others to Christianity. The Tribunal does not accept that Hindu fundamentalists or anyone else have made attempts to locate the applicant, including by threatening his father as to his whereabouts. The Tribunal finds that the applicant has fabricated these claims and concocted a story in respect of a claimed fear should he return to India. As the Tribunal does not accept that the applicant’s claims about the problems he and his family have experienced because of their conversion to Christianity are credible, it does not accept there to be a real chance that the applicant would be persecuted if he returns to India, now or in the foreseeable future, by reason of religion, or for any Convention reason, by his extended family members, or Hindu fundamentalists, or anyone else.
The Tribunal acknowledges the applicant’s claim that he cannot obtain state protection from his extended family members and others in his village, because the police are Hindu and corrupt. Noting the Tribunal’s findings above that the applicant does not face any harm from his extended family members, or other villagers or anyone else for any reason, the Tribunal has not addressed this claim.
Based on the above, the Tribunal is not satisfied the applicant has a well-founded fear of persecution as required by s.5J of the Act and therefore finds the applicant is not a refugee within the meaning of s.5H. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
As the Tribunal has found the applicant does not have a well-founded fear of persecution pursuant to the provisions in s.36(2)(a), it must now consider whether he meets the criteria in s.36(2)(aa), that is the complementary protection provision. This requires substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, that is India in this case, there is a real risk that the applicant will suffer significant harm.

The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. For the same reasons the Tribunal expressed in its consideration of the applicant’s s.36(2)(a) claims, the Tribunal does not accept the applicant faces a real risk of ‘significant harm’ as that term is defined, as a necessary and foreseeable consequence of being removed to India.
The Tribunal therefore finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, that there is a real risk he will suffer significant harm. The applicant therefore fails to meet s.36(2)(aa) of the Act.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Nicola Findson
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.
…

[2018] AATA 4850

10 October 2018

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