1622459 (Refugee)

[2020] AATA 5508

1622459 (Refugee) [2020] AATA 5508 (19 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1622459

COUNTRY OF REFERENCE:                   India

MEMBER:Mila Foster

DATE:19 November 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 November 2020 at 11:38am

CATCHWORDS

REFUGEE – Protection visa – India – religion – Catholic –Pentecostal Christian – political opinion – INC(I) activist – injury at work –applicant was not a credible witness – fabricated claims – credibility concerns –decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 December 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of India, applied for the visa on 1 December 2015.[1] The delegate refused to grant the visa on the basis that he was neither a refugee nor owed complementary protection.

   [1] An earlier protection visa application lodged on 26 November 2015 was invalid because the applicant had not paid the correct application fee: Department file CLF2015/72964, at f.49.

3. The applicant’s primary claim is that he will be beaten or killed by the RSS (a Hindu nationalist organisation) if he returns to India due to his past activities with a Catholic group in the Indian state of Kerala.

   CRITERIA FOR A PROTECTION VISA

4. 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.

   Refugee criteria

5. 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.

6. 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).

7. 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. More specifically, s.5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.  A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

8. If a person fears persecution for one or more of the reasons mentioned in s.5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s.5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss.5J(4)(b), (c).

9. For the purposes of s.5J(4), s.5J(5) provides that the following are instances of serious harm: (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.

10. Subject to s.5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. Subsection 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.

11. The above and other sections of the Act relating to a ‘well-founded fear of persecution’ are extracted in the attachment to this decision.

    Complementary protection criterion

12. 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’).

13. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act. Those definitions and ss.36(2A) are extracted in the attachment to this decision.

    Mandatory considerations

14. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. DFAT published such a report in relation to India on 17 October 2018 (DFAT Report).

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The Tribunal has before it Department file [number deleted] relating to the applicant’s protection visa application. The applicant presented his claims and evidence in his protection visa application, documents submitted to the Tribunal and oral evidence he gave at a Tribunal hearing on 3 November 2020. Due to the COVID-19 pandemic, the hearing was conducted by video. The applicant was invited to attend an interview with the delegate, but he did not do so. He told the Tribunal he was unable to attend the interview due to a workplace accident [in] November 2016.[2]

    [2] Undated letter from applicant included in review application.

16. The issues in this case are the applicant’s credibility and whether, on the basis of the claims the Tribunal accepts, he is a refugee or owed complementary protection. Having considered the claims and evidence, the Tribunal has concluded that the decision under review should be affirmed.

    Background information

17. The following information from the DFAT Report and sources consulted by the Tribunal provides some context to the applicant’s claims.

18. According to India’s 2011 census, 79.8 per cent of its population of about 1.21 billion people identify as Hindu, 14.2 per cent as Muslim and 2.3 per cent as Christian.[3] Christian denominations include Catholics and various Protestant denominations.[4] Of the country’s 29 states and seven territories, Christianity is the majority religion in three northern states and has a strong presence in three southern states including Kerala.[5]

    [3] DFAT Report, [2.4], [2.6].

    [4] DFAT Report, [3.11].

    [5] DFAT Report, [2.26], [3.11].

19. India is a federal constitutional democracy.[6] Since independence (1947), Indian politics has largely been dominated by the Indian National Congress Party (Congress).[7] However, in 2014 the Bharatiya Janata Party (BJP) became the first party to gain a single-party majority in the lower house of India’s parliament (the Lok Sabha).[8] Then, in 2019, led by Prime Minister Narendra Modi, the BJP gained an increased majority in the Lok Sabha.[9]

    [6] DFAT Report, [2.26].

    [7] DFAT Report [2.29].

    [8] DFAT Report, [2.29]

    [9] Elections.in, ‘Lok Sabha Election Results 2019’, 26 May 2019,

20. The BJP is a right wing party affiliated with a group of Hindu nationalist organisations called the Sangh Parivar which is led by the Rashtriya Swayamsevak Sangh (RSS) organisation.[10] As a young man Prime Minister Modi joined the RSS and the Bharatiya Jan Sangh (the political party that was the precursor of the BJP) and then spent decades working in the RSS before transitioning to the BJP, as other senior RSS members often have.[11] While separate legal entities, a close collaboration has developed between the RSS and BJP.[12]

    [10] Vaishnav, M. ‘Religious Nationalism and India’s Future’ in The BJP in Power: Indian Democracy and Religious Nationalism, Carnegie Endowment for International Peace, 2019, p.10,

    [11] Ibid, pp.10,14.

    [12] Ibid, p.14.

21. The BJP has never won a Lok Sabah seat in Kerala.[13] In the 2019 Lok Sabha elections, a Congress-led coalition won 19 out of 20 of Kerala’s seats.[14] At the state level, government power in Kerala has alternated between the United Democratic Front (UDF), a centrist Congress-led coalition, and the Left Democratic Front (LDF) a leftist coalition led by the Communist Party of India (Marxist).[15]

    [13] The Indian Express, ‘Kerala election results 2019 highlights: UDF wins 19 out of 20 seats, worst results for LDF in 3 decades’, 4 July 2020, Ibid.

    [15] Elections.in, ‘Kerala Lok Sabha General Election Results 2019 Live Update’, 13 March 2020,

Outline of applicant’s claims and evidence

Protection visa application

The applicant’s protection visa application included a completed protection visa application form, a statutory declaration made by the applicant on 1 December 2016, and a certified of an Indian passport issued to the applicant.

According to information provided in his protection visa application the applicant is [age] years old. He was born [in] the Indian state of Kerala and has been a citizen of India since birth. He arrived in Australia [in] September 2015 on a [temporary] visa. His family members include his wife and two children, parents and [siblings] all of whom live in India. He completed [number of] years of schooling in India. From February 1975 until April 2000 he lived at one address in Kerala before leaving India to work [overseas]. From August 2009 until December 2012 he lived at one address in the state of Uttar Pradesh. He then left India again and worked in [Country 1].

The applicant stated in the protection visa application form that he was a Catholic, had been brutally beaten by the RSS party in the past, and had tried to move to north India but even there he was constantly harassed by the RSS movement. He thought he would be beaten and may be killed if he returned to India.

In his statutory declaration the applicant stated that he had been very active in church activities from a very young age. He said he was a strong member of the [ORGANISATION 1] , led a ‘connect group’ of the [Church 1], and was a convenor of [a] sub-division of the KPCC or ‘Kerala Pradesh Congress Committee political party’.

The applicant stated that he lived in an area with a majority Hindu population and his home was close to a temple. There was often violence against the small Christian population, and he was threatened several times by the RSS party because he was very active in the church.

He said that in 1998, during a communal riot by the RSS party against Christians, he and two other church leaders were targeted. He escaped but the two other leaders were murdered by the RSS party, many Christian houses were robbed, and Christian women sexually abused. Before he returned home, RSS activists told his family they would kill him if he returned. He thus went into hiding for a year. The evening after he returned, he was attacked by a group of extremists. He escaped, obtained a visa and left India to work in [City 1] (in [Country 2]). He worked there for six years before returning to India to marry but a few weeks later the same group of extremists came looking for him. When they could not find him, they told his parents they would take his life. Afraid, he returned to [City 1].

The applicant said he returned to India a few months later because his wife was due to give birth. He faced the same troubles. Feeling he was putting his life and the lives if his wife and newborn in danger he went to work in [Country 3]. He returned to his hometown a year later but faced the same issues from the same extremists. To protect himself and his family he moved to different states but faced the same issues because the RSS party has a very strong influence in every state in India. Finally, he reached the state of Uttar Pradesh in north India and very far from his hometown. While staying there a few people approached his landlord, showed the landlord photographs of him, and asked after his whereabouts. The landlord pretended not to know him and did not reveal his whereabouts.

The applicant said he was frightened and tired of constantly being on the run. He had suicidal thoughts. He had the opportunity to work for [a] company in [City 2] and after that in [Country 1]. He heard Australia was the land of opportunity, so he approached an agency and gave them his earnings to reach Australia. [In] November 2015 at midnight, after he arrived in Australia, the RSS party threw a handmade bomb into his house. He feared for his life as well as that of his wife and two children in India.  

Review application

The applicant’s application for review included the following supporting documents.

Affidavit from father

In an affidavit from India signed by the applicant’s father on 23 November 2015 (but also stamped with the date 19 November 2015), the applicant’s father states:

a.He is [age] years old.

b.He, the applicant and his entire family are activists of the Indian National Congress (I).

c.The BJP is the ruling party of India and the major rival political party of the INC(I).

d.There was a local riot between the INC(I) and the BJP and the applicant was brutally manhandled by BJP activists.

e.As the BJP is a Hindu based political party and his family belongs to the Christian community and are INC(I) activists, the applicant’s life was under threat and thus he left India.

f.As the BJP is the ruling party of India, the applicant’s life and property are not safe in India.

g.BJP activists had visited his house many times and inquired about the applicant to endanger him. 

Solicitor’s statement

In a document from India titled ‘Certificate’ dated 21 November 2015, [states]:

a.The applicant is an activist of the Indian National Congress (I) and was once brutally manhandled by BJP activists who are the rival political party of the INC(I).

b.He filed a Criminal Complaint in favour of the applicant against a few BJP activist before the  [Court], Thiruvananthapuram.

Medical records and letters

An undated [Hospital] Discharge Referral document states that the applicant was admitted to the hospital [in] November 2016 due to [a medical condition] which occurred at work, was discharged the following day after he was deemed stable, and he was advised to follow up with a GP for cognitive testing in a month’s time.

A medical certificate issued by a [Hospital] medical officer [in] November 2016 states that the applicant was treated at/admitted to the hospital the previous day suffering from –‘[an illness]’  and that he would be unable to attend work/school from [date] to [date] November 2016.

In a letter dated 23 November 2016, Dr [A] asks Dr [B] for an assessment of the applicant and advice on further treatment and management.

In two letters dated 15 December 2016, Dr [A] asks Dr [C] and Dr [D] for assessments of the applicant and advice on further treatment and management. In the letter to Dr [C], Dr [A] notes the hospital requested cognitive assessment post injury.

Further documents submitted to the Tribunal

On 11 July 2019 the Tribunal informed the applicant his matter was being prepared for allocation to a member and asked him to submit any further evidence. In response, on 30 July 2019 the applicant emailed documents consisting of his father’s death certificate, medical records (he had already submitted with his review application), documents relating to his employment in Australia, and a character reference letter dated 20 July 2019 from [a] Senior Pastor of the [Church 2] in [NSW].

Amongst other things, the applicant referred in his email to his [medical condition] in November 2016 and said he had ‘miraculously recovered from fatal conditions’, his father had died in February 2018 but he had been unable to return to India for the funeral, and he was happy attending a local church where he was comfortable.

[The Pastor] states that the applicant is known to him/her as a regular attendee of the church since November 2015, the applicant is known to the church as a person of good faith in Christian beliefs and a person who is always willing to assist the church and the families in various ways, and holds a good character.

Tribunal hearing

The applicant attended the hearing with a friend as a support person.

Early in the hearing, the applicant was asked about his religion and he stated he had become a Pentecostal Christian in Australia and was no longer a Catholic. In the course of exploring why he had become a Pentecostal Christian, the Punjabi interpreter revealed he was unfamiliar with Christian terminology. The hearing was thus adjourned for a short time and a second Punjabi interpreter was arranged.

The applicant confirmed that he feared being beaten or killed by the RSS if he returned to India. It took some questioning to elicit from the applicant why he believed that would happen. Ultimately, he claimed that the RSS hate him and want personal vengeance because of his past activities and conduct in India. The applicant disclosed the nature of the past activities and conduct incrementally over the course of the hearing. Initially he claimed that the activity and conduct had occurred in 1998 and 1999 and was connected to his position as the leader of the [Organisation 1]. When he was subsequently asked about the claims in his father’s affidavit and solicitor’s certificate that he was an INC(I) activist who would be targeted by BJP activists, the applicant said he would also be targeted due to his political activities in India and that the RSS and BJP are essentially one and the same. Asked whether he feared serious harm or significant harm if he returned to India as a Pentecostal Christian the applicant indicated that he did not, that his fear arose due to his past activities and conduct in India.

1. The evidence the applicant gave at the hearing is referred to further in the findings below.

   Receiving country

2. The applicant claims that he is a citizen of India and no other country. His passport states that he is a national of India. There is no evidence before the Tribunal to suggest otherwise. The Tribunal thus finds that the applicant is a national of India and therefore that India is the receiving country for the purposes of assessing whether he meets the refugee and complementary protection criteria.

   The applicant’s credibility

3. A number of concerns with the applicant’s claims and evidence raise doubts about his credibility.

   Applicant’s movements within India and abroad

4. There was some variation in the written details the applicant provided about where he lived in Kerala. The Tribunal discussed those differences with the applicant at the hearing. In essence, he claimed that he had lived at just one location in Kerala and that the variation in the names of the locality he lived in was due to the area being divided up. That is not inherently implausible and hence the Tribunal is prepared to accept that it is true.  

5. There was also a discrepancy in the information the applicant provided in his protection visa applicant about when he was last in India. According to information on the protection visa application form his last residential address in India was an address in Uttar Pradesh where he lived from August 2009 until December 2012, after that he worked in [City 2] from February to December 2013 and then [Country 1] from April 2014 until November 2015. However, that last date is inconsistent with other information in the form and stamps in his passport which indicate that he left India [in] September 2015 for Australia. Asked at the hearing to clarify the matter, the applicant stated that he returned to India from [Country 1] about a year before he came to Australia. He said he returned to Uttar Pradesh, where his wife and children had previously moved with him.

6. Thus, on the applicant’s evidence, after leaving his hometown in Kerala he eventually moved with his wife and children to Uttar Pradesh where he lived for 4 ½ years from August 2009 until December 2012, and lived there about one year before coming to Australia. However, the applicant’s address in his passport is an address in Kerala. Questioned about that at the hearing the applicant stated that he obtained his passport in 1998 to go to [City 1], was in [City 1] when he needed to renew it and he had to provide his old address. The Tribunal emphasised that it was referring to his current passport which was issued in [2015]. The applicant responded that he only remained in Uttar Pradesh for a short time, Uttar Pradesh was not his place, it was not a place he had remained permanently. The Tribunal does not accept that explanation. The applicant’s protection visa application indicates that between May 2000, when the applicant first left India to work aboard, and August 2009, when he began living in Uttar Pradesh, he returned to Kerala on three occasions. The employment history the applicant provided on the protection visa application form indicates each return was for a period of about six months. In contrast, he claims he lived in Uttar Pradesh for about 4 ½ years, his wife and children had moved there with him, and that is where he returned before he came to Australia. The Tribunal does not accept that 4 ½ years is a ‘short time’ or that the applicant would not provide that as his address for the purpose of his passport given it was where his family lived and he had lived for the longest period of time in the years before his passport was issued.

7. The Tribunal noted the length of time he said he had lived in Uttar Pradesh on the protection visa applicant form, from August 2009 until December 2012, and he had stated at the hearing that he returned there prior to coming to Australia. The applicant indicated it was the norm in India to provide details when moving, he thought he may have to move away from Uttar Pradesh because he feared the RSS and so may have a problem changing address so he thought it would be better to have his hometown as his permanent address where he had relatives who could collect information for him. He said it was his birthplace and there was a requirement to get a police clearance letter and he thought his birthplace would be the best place for that. It seemed the applicant was thinking up this explanations as he spoke and his response did not address the significant length of time the applicant claimed to have lived in Uttar Pradesh. Further, if those were the genuine reasons he had provided his Kerala address on his passport then the Tribunal expects he would have mentioned them when first asked why his Kerala address rather than his Uttar Pradesh passport was in his current passport.

8. The fact the applicant gave a Kerala address in his passport undermines his claim to have moved to Uttar Pradesh due to harm and threats he faced in Kerala.

   Alleged cognitive and memory impairment

9. The applicant added that he had almost lost his life as a result of the injury he had suffered at work and it had impacted on his thinking and memory so it can take time for him to get the right information, and his thinking process was quite delayed. He noted he had provided medical reports. However, there was nothing in the manner in which the applicant had given his evidence which indicated to the Tribunal that he was cognitively impaired or had memory problems. He did not seem appear confused, or unable to understand what he was being asked, express himself or recall events. Overall, he gave his evidence in a lucid and confident manner.

10. Further, when the Tribunal noted that the medical records did not appear to indicate he had suffered any ongoing impairment or had a current impairment as a result of his injury either cognitively or in terms of memory, the applicant replied that he was referred for follow-up treatment and his employer had helped him significantly. The medical records the applicant provided indicate he was discharged from hospital within a day and was deemed fit for work a week later. The hospital discharge report recommended cognitive testing be undertaken and it seems the applicant was referred for further assessment in November and December 2016. However, there is no medical evidence before the Tribunal that the applicant underwent an assessment, the outcome of any assessment, or that he suffered cognitive impairment or memory difficulties as a result of the injury in November 2016.

11. Additionally, if the applicant had suffered cognitive impairment or memory difficulties then the Tribunal expects he would have disclosed that before the hearing or at the beginning of the hearing rather then when the Tribunal raised its first concern about his evidence.

12. Finally, the Tribunal notes that the applicant himself stated in an email to the Tribunal on 30 July 2019 that he had ‘recovered’ from his injury.

13. Thus, the Tribunal does not accept that the applicant was suffering from cognitive or memory impairment at the hearing as a result of his injury in November 2016 and that he sought to misrepresent the impact of the accident on his ability to give evidence which indicates a lack of credibility.

    Discrepancies between written and oral claims

14. At the hearing the Tribunal asked the applicant what conduct he had engaged in which would lead the RSS to beat or kill him if he returned to India. The applicant said his problems began with the nearby temple authorities, the RSS, in 1998 when he was the unit leader of  [Organisation 1] (later in the hearing he said he was the assistant leader). He said that as unit leader he organised prayers and his group’s prayer time clashed with those of the temple. The temple asked his group to change its prayer times which it did but when the temple asked that they be changed again, the applicant refused. Further, he told the RSS (also in 1998) that he had equal rights to religion, reacted against the RSS and made comments. Also, in 1998 and 1999, he made three or four complaints about the RSS to the police. As a result, the RSS hate him and targeted him. Asked how they did so, the applicant said the RSS attacked him and harassed him by trying to kill him. He said the RSS also made two false complaints against him because he organised witnesses against the RSS and supported the family of the two friends who were murdered in 1998 to take the matter to court. The applicant said the RSS thus wanted revenge.

15. However, there was no mention in the applicant’s protection visa application that he had been harmed in the past or would be harmed in the future because he had made complaints against the RSS. Asked about this the applicant said he did not mention those matters because the RSS had alot of influence in the government and was part of the BJP government which supported it, it would create problems for his family in India and he did not have proof. The Tribunal does not accept that explanation. The influence of the RSS in India does not explain why the applicant would not mention the claim in the protection visa application he made in Australia where they do not have influence. Nor does it explain why, if the applicant was concerned about his family, he made the complaints in India in the first place. Further the applicant made other claims in his protection visa application without ‘proof’.

16. Nor had the applicant mentioned in his protection visa application that the RSS had made complaints against him, or that he had been targeted or would be targeted because of the issue of his group’s prayer times and because he helped the family of his two murdered friends make a complaint.  Asked about this at the hearing the applicant said he belonged to [a] community and only had a Year [number] level of education so he could not specify many things in his application. The applicant’s statutory declaration was almost three pages long. If he was able specify his other claims in the statutory declaration, then the Tribunal expects he would have been able to specify the matters he raised at the hearing. The additional claims raised at the hearing concerned events he had allegedly personally experienced and did not require some high level of education to convey.

17. Thus, the applicant made significant new claims at the hearing without a reasonable explanation for not presenting those claims in his protection visa application. That suggests they were invented and undermines his credibility.

    Father’s affidavit and solicitor’s certificate

18. At the hearing the Tribunal discussed the contents of the affidavit and certificate from India as well as information in the DFAT Report about document fraud in India which raised concerns about the genuineness of those documents and hence the credibility of the applicant given he had presented the documents to the Tribunal.

19. The applicant stated on the protection visa application form that his father was born on[date]. Thus, the applicant’s father would have been almost [age] years old when he made the affidavit. However, in the affidavit the applicant’s father refers to himself as being [a different age]. Asked to explain this, the applicant said the person who helped make the affidavit may have made a mistake. Had that been the only issue the Tribunal may have accepted it was merely error.

20. Both the affidavit and certificate refer to the applicant as an INC(I) activist who was harmed by BJP activists. However, the applicant did not specify in either his written statement or on review that he was an INC(I) activist. While the applicant noted in his written statement that he was a convenor of a subdivision of the KPCC political party, he did not specify in his written statement that he was an INC(I) activist or that he harmed by BJP activists because he was an INC(I) activist. Nor did he make such a claim at the hearing when asked about what harmed he feared. Instead the applicant’s written and oral claims had been that he would be harmed by the RSS due to his religious activities and because he made complaints against the RSS. Questioned about this at the hearing the applicant stated the RSS was part of the BJP and almost one and the same and that it became a political issue later, after 2000. He said he may have missed some points due to his limited English and education.

21. As noted above, the information in sources consulted by the Tribunal indicates a close association between the RSS and BJP but not that the RSS is a part of the BJP. Nevertheless, even if the Tribunal accepts that the applicant referred to the RSS and BJP interchangeably due to their close association, it does not find it believable that the applicant would not mention in his written or oral claims that he was an INCI(I) activist who had been targeted by RSS/BJP activists for political as well as religious reasons if that was true. The Tribunal does not accept that having [number] years of education would have prevented the applicant from making the claim. The applicant stated on the protection visa application form that he did not receive assistance with his application. In contrast, at the hearing and in his invalid protection visa application he indicated had. If the applicant had been able to write his statement and/or complete the protection visa application form himself then the Tribunal expects he could have made the claim that he was an INC(I) activist and harmed for that reason. If he obtained help to write his written statement and/or complete the form, the Tribunal expects he would have conveyed that claim to the person who assisted him so that it would be included in his protection visa application.

22. There was similarity in the wording of the applicant’s father and the solicitor’s certificate which suggests they were written by the same person. For example, both state that the applicant was ‘brutally manhandled by BJP activists’. The applicant stated that may be the case as he had asked people to write them for him. The Tribunal expects the affidavit and certificate to be the words of the applicant’s father and solicitor respectively. The applicant’s response does not overcome the Tribunal’s concern about the similar wording of the documents.

23. The solicitor’s certificate states that he filed a complaint on behalf of the applicant against some BJP activists. However, the applicant claimed at the hearing he had made three or four complaints against the RSS. Asked to explain this difference in the number of alleged complaints, the applicant stated at the hearing that after his injury there was a lot of inconsistencies between what he said, wrote and understood. The Tribunal has not accepted that the applicant suffered ongoing impairment due to his injury in November 2016. He clearly indicated at the hearing that he had made more than one complaint against the RSS which he said was essentially the same as the BJP. The applicant did not suggest that he had made one specific complaint against the BJP and three or four against the RSS. Hence, the Tribunal does not accept his explanation.

24. According to DFAT, the manufacture and use of false documents is prevalent in India including for immigration purposes.[16] Responding to that information the applicant indicated that he believed his documents were genuine and that he had not sought fake documents. However, the DFAT information and above issues with the affidavit and certificate lead the Tribunal to conclude that the affidavit and certificate are not genuine documents.

    Conclusion

    [16] DFAT Report, [5.28].

25. The Tribunal has had regard to the character reference from the senior pastor of the [Church 2] about the applicant’s character. However, the character reference does not overcome the above concerns about the applicant’s credibility. The above concerns, when considered collectively, lead the Tribunal to conclude that the applicant was not a credible witness.

    Applicant’s home area

26. The applicant has consistently claimed that he was born in Kerala and that his hometown is in Kerala. His address in his passport is in Kerala. The Tribunal thus finds that the applicant’s home area in India is in Kerala.

    Applicant’s religion and consideration of ss. 5J(6)

27. The applicant has consistently claimed that he is a Christian from a Christian family. According to the senior pastor’s letter the applicant has been attending the [Church 2] for several years and is known to the senior pastor. The Tribunal thus accepts the applicant’s claim that he is a Christian from a Christian family, that he was a Catholic in India, became a Pentecostal Christian in Australia, and has been attending the [Church 2] in Australia since November 2015.

28. As the applicant has attended the [Church 2] and assisted the church and its members regularly for several years, the Tribunal is satisfied that the applicant engaged in that conduct otherwise than for the purpose of strengthening his claim to be a refugee. Thus, the Tribunal is not required to disregard that conduct in determining whether the applicant has a well-founded fear of persecution.  

    Claims relating to religious and political activity in India

29. As the Tribunal has accepted that the applicant is from a Christian family and was a Catholic in India, regularly attends and assists the [Church 2] and its members, the Tribunal considers it plausible and thus finds that the applicant attended a Catholic in India and assisted in some church activities there.

30. However, in light of the applicant’s lack of credibility and the concerns identified above regarding his claims for protection, the Tribunal does not accept the applicant engaged in church activities in India to the extent he claimed or that he was harmed as a result of his religious and political activity and conduct in India. Specifically, the Tribunal does not accept the following claims:

    a.The Tribunal does not accept that the applicant was very active in all church activities from a very young age or had any specific roles in the [Church 1] as he grew up including the role of leader of a connect group of the church.

    b.The Tribunal does not accept that the applicant was a member, leader or assistant leader of the [ORGANISATION 1] or any other religious group in India.

    c.The Tribunal thus does not accept that the applicant was involved in changing church prayer times because they conflicted with those of a local temple, that he came to the adverse attention of the RSS as a result or that he made comments about religious equality to the RSS.

    d.The Tribunal does not accept that the applicant was a convenor of [a sub-division of the KPCC]  or an INC(I) activist or that he engaged in any political activity or conduct with brought him to the adverse attention of the BJP.

    e.The Tribunal does not accept that applicant’s father and the applicant’s entire family are INC(I) activists. 

    f.The Tribunal does not accept that there was a communal riot by the RSS against Christians or between INC(I) and BJP during which the applicant was targeted or two church leaders killed.

    g.The Tribunal does not accept that the applicant moved to other states in India or to Uttar Pradesh to escape harm in his home area from the RSS, BJP or extremists.

    h.The Tribunal does not accept that the applicant was harmed or threatened by the RSS, BJP or extremists when he returned to India from abroad.  

    i.The Tribunal does not accept that the applicant, or a solicitor on his behalf, filed any police or legal complaints against RSS or BJP, or that he has assisted anyone else to do so including the family of two murdered friends.

    j.The Tribunal does not accept that the RSS or BJP have filed police or legal complaints against the applicant.

    k.The Tribunal does not accept that the RSS or BJP or extremists have asked about the applicant’s whereabouts, threatened his family or thrown a handmade bomb at his house.

1. In conclusion, the Tribunal does not accept that the applicant or members of his family have been harmed or threatened by the RSS, BJP or extremists for the reasons he has claimed. Further, the Tribunal finds that the applicant has always lived in Kerala and that is where his family, particularly his wife and children, have continued to live.

   Future harm

2. In considering the applicant’s claims the Tribunal has regard to information in the DFAT Report and other sources about religion and Christians in India. The information indicates that the Indian constitution guarantees freedom of religion and federal law recognises Christians as a religious minority community.[17]  There are significant number of Christians in Kerala, about 6 million or about 20% of the state’s population.[18] There are instances of violence against Christians in India especially by Hindu nationalists and official discrimination especially against churches and charities.[19]  However, Hindu violence against other religious groups has largely been directed against Muslims.[20] DFAT assesses that most Christians live day to day without societal discrimination or violence.[21] That seems especially the case in Kerala where there is generally a greater religious tolerance.[22]

   [17] DFAT Report, [3.4].

   [18] DFAT Report, [3.11]; The Hindu, ‘54.72% of population in Kerala are Hindus’, 26 August 2016 (updated 29 March 2019),

   [19] DFAT Report, [3.12]-[313].

   [20] Minority Rights Group International, ‘A Narrowing Space: Violence and discrimination against India’s religious minorities’, June 2017, pp.3,5,6,16 Scroll.in, ‘New hate crime tracker in India finds victims are predominantly Muslims, perpetrators Hindus’, 13 November 2018, DFAT Report, [3.15].

   [22] Pulitzer Center, ‘Kerala: Multiple Improbabilities’, 29 December 2011, Huffpost, ‘There’s a Place in India Where Religions Coexist Beautifully and Gender Equality Is Unmatched’, 4 June 2016 (updated 6 December 2017), The News Minute, ‘President Kovind applauds Kerala’s unity and religious tolerance’, 8 October 2017,

At the hearing the Tribunal put to the applicant that the above information indicated he could return to India, particularly Kerala, as a Christian and practise his religion without facing a real chance of serious harm or significant harm. The applicant responded that the main reason he would face harm was personal enmity towards him; no one could help him because it was a matter of personal vengeance. They hated him a lot and his wife has warned him not to return. Further, he proceeded with the case relating to his two murdered friends which resulted in three of them being convicted. They will also have enmity when they come out and will want personal revenge. That was why he came to Australia in secret and the bomb was thrown at his home because they thought he was still in India. That was why he is aware they are still angry and want vengeance.

The Tribunal has rejected the applicant’s claims that he was targeted in the past by the RSS, BJP or extremists and that he helped with a case about two murdered friends. The Tribunal thus does not accept that anyone has personal enmity towards the applicant and wants to take revenge against him.

Other than the claims the Tribunal has rejected, the applicant did not identify any other reason he would be subjected to serious harm or significant harm on the grounds of religion or other reason if he returned to India. He did not claim he would be unable to attend a Pentecostal church or assist in church activities as he has done in Australia or that he would face serious harm or significant harm if he did so.

Conclusions

In light of the findings that the applicant’s home area in India is in Kerala and that his wife and children have continued to live there, the information referred to above in paragraph 74, and how the applicant has practised his religion in Australia as a Pentecostal Christian, the Tribunal finds that if the applicant returned to India:

a.he would return to his home area in Kerala,

b.he would regularly attend a church and assist in church activities as a Pentecostal Christian, and

c.in doing so, there is not a real chance that the applicant would be subjected to serious harm or suffer significant harm because he is a Pentecostal Christian and/or due to his religious practice.

Protection visa criteria findings

Refugee criterion

The Tribunal has rejected the claims the applicant made relating to past harm in India and found that there is not a real chance he will be subjected to serious harm because he is a Pentecostal Christian and/or his religious practice if he returns to India. Therefore, on the evidence before it, the Tribunal finds that there is not a real chance that the applicant will be persecuted by the RSS, BJP or anyone else in India for reasons of religion, political opinion or any of the other grounds referred to in s.5J(1)(a), either individually or cumulatively.

The applicant thus does not have a well-founded fear of persecution within the meaning of s.5J and is not a refugee as defined in s.5H. Consequently, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a). 

Complementary protection criterion

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 has rejected the applicant’s claims relating to past harm in India and found there is not a real chance that he will be suffer significant harm if he returns to India because he is a Pentecostal Christian and/or his religious practice. Thus, on the evidence before it, the Tribunal finds there is not a real chance that the applicant will suffer significant harm from the RSS, BJP or anyone else if he returns to India, either individually or cumulatively.

The Tribunal is therefore not satisfied that there are 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 will suffer significant harm. Hence, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

Conclusion – s.36(2)

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.

Mila Foster
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…