1701742 (Refugee)

1701742 (Refugee) [2020] AATA 1857 (28 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1701742
COUNTRY OF REFERENCE:                   India
MEMBER:Hugh Sanderson
DATE:28 February 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 28 February 2020 at 9:46am
CATCHWORDS
REFUGEE – protection visa – India – political opinion – Viduthalai Seeruthai Party activist – fear of police torture – fear of killing – false legal proceedings – delivering anti-government speeches – state protection – internal relocation – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 16 January 2017 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 2 December 2015. The delegate refused to grant the visa on the basis that the applicant would be able to relocate in India and if he did he would not face any persecution or a real chance of harm.
Background
The applicant was born in India and has provided to the Department a copy of his Indian passport. He is currently [age] years old. His wife and [children] continue to live in India in Thanjavur in Tamil Nadu. His mother and [specified family members] also remain living in India in [Town 1] in Tamil Nadu.
In his application, the applicant claimed that he had lived and worked in [Country 1] over the following periods:
·From September 1997 to July 2001;
·From October 2001 to August 2005;
·From November 2005 to July 2007;
·From October 2007 to August 2008;
·From November 2008 to August 2009; and
·From October 2011 to March 2013.
The applicant claimed that he became a member of the Viduthalai Seeruthai Party in the second quarter of 2013. Due to his contribution and enthusiasm he was promoted to the [position 1] of the party for [Area 1]. The party sought to uplift the lower caste people and was phenomenally successful. As a result, political parties including the BJP and Congress were against them and used the police to harass and threaten members of his party. He claimed that if he returned to India he would be apprehended, imprisoned, tortured and may be killed by the police at the instigation of the ruling parties. He also claimed that the party he was a member of, the Viduthalai Seeruthai Party, will no longer support him as he is currently of no use to them.
He claimed that when he was in India, on a few occasions he was manhandled, tortured and then let off after a few hours by the police. He was warned by the police against participating in any political activities. He claimed false cases were foisted against him and he was apprehended without proper documents on a few occasions.
The applicant provided a letter dated [in] March 2013 certifying that he was appointed [position 1] for the Viduthalai Seeruthai Party of [Village 1] in [Area 1] from [March] 2013.
The applicant was interviewed by an officer from the Department. He said that from 2013 to 2015 he travelled around Tamil Nadu staying with relatives to escape persecution. He said that he had no information which would support his claim that he had high profile political standing. He said that he did not want to travel far from his home village and would be found if he returned to India.
The delegate who considered the application accepted the claims made by the applicant. The delegate, however, found that the applicant could relocate in India and if he did he would not face any persecution or any real risk of significant harm. Accordingly, the delegate found the applicant did not meet the definition of a refugee in s.36(2)(a) or the complementary protection criterion in s.36(2)(aa) and refused the application.
Information to the Tribunal
The applicant provided a Community Certificate confirming that he was of a scheduled caste. He provided a court notice for Case Number [number] identifying himself and four other accused people against the state. The docket entries commence with the first appearance in court on [a date in February] 2018.
The applicant appeared before the Tribunal on 18 February 2020 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Tamil and English languages.
The Tribunal commenced the hearing by explaining to the applicant the process under s.424AA of the Act. The Tribunal explained to the applicant it would be putting to him information which would be the reason, or a part of the reason, for affirming the decision under review. It would explain what this information was, why it was relevant and then invite the applicant to comment on or respond to the information. If he required more time to comment on or respond to the information he could request an adjournment.
The applicant said that he was currently living with [a relative] who came to Australia on a Visitor visa and has now applied for a Protection visa. He said that he was working in a [business]. He said that he speaks Tamil, Hindu, Malayalam and a bit of English.
The Tribunal asked the applicant what other countries he had travelled to. He said that he had spent time in [Country 1]. The applicant gave a confused answer as to when he had been in [Country 1]. The Tribunal went through with him the information he had provided in his application as to the time he spent in [Country 1]. He said yes, maybe, that was correct. He said that he worked as [an occupation 1] in [Country 1]. He said he married his wife in 2008 and she remained in India when he was working in [Country 1]. He said that there may have been errors in the dates that he spent in [Country 1] as he based that information on the stamps and his old passport, but he did not have that passport with him now.
The applicant said that in India he worked on his own property as a farmer. He said that his mother remains on the property and pays workers on the farm. He said that his wife and children are living with her mother in Thanjavur, about [distance] km from his hometown. He said that he has one brother who lives in [another country] and another brother who lives in his hometown. He said that his brother works in [an industry] and has no problems living in India. He said that [another family member] lives with [relatives] on a [farm]. He said that [his relative] and mother have no problems living in India. He said that he inherited the farm his mother lives on from his father.
The applicant said that he arranged for his Visitor visa through an agent in India. He said that he told the agent that he had problems in India and the agent arranged all the documents. The Tribunal noted that it appeared that bogus documents had been provided in support of that application. The applicant said that he did not know what was provided as he left that to the agent.
The Tribunal referred to the process under s.424AA of the Act. The Tribunal referred to the applicant’s Visitor visa application which provided various documents claiming that the applicant was working as [an occupation 2] for [a named employer] and provided bank records and tax returns for the applicant. These documents appeared to be bogus as they contradicted the information the applicant had given as to his work in India. This was relevant as it appeared the applicant was willing to provide bogus documents to the Department to support a grant of a visa which could lead the Tribunal to conclude that the documents in support of his current application were not genuine. This could lead the Tribunal to conclude that he did not meet the criteria for the grant of the visa.
The applicant said that whatever documents he had given in this application were genuine. He said that he had lots of problems in India and so his agent had produced the bogus documents for the Visitor visa application.
The applicant said that he was a member of the Viduthalai Seeruthai Party for about two or three years. He said that after he returned from [Country 1] he became a member of the party after about two or three months. The Tribunal noted that based on his claim that he returned to India in March 2013, this would mean that he did not become a member of the party until May or June 2013. The applicant said that he could not remember and the stamps in his passport might be wrong so maybe that was right.
The applicant said that there were about 250 to 300 people who would attend the party meetings. He said that they were all active members. He said that he became the [position 1] of the party in the area after about four or five months from when he joined the party. The Tribunal tried to have the applicant confirm when he joined the party and when he became the [position 1] of the party. He said that he joined the party in April 2013 and then became the [position 1] of the party in August or September 2013.
The Tribunal attempted to have the applicant explain what his role was as the [position 1] of the party. He said the [position 1] is not a very high position and it is just speaking to the public during protests. He said that the party would organise protests and would invite him to give a speech. He said that he did nothing else apart from giving speeches at protest meetings. He said that he had no evidence to support the claim that he ever gave a speech in public for the party.
The Tribunal referred to the letter the applicant had provided from [Leader A], the district organiser for the party. The Tribunal noted that it was dated [on a date in March 2013] and stated that the applicant was appointed as [position 1] from [that date]. This was relevant as it was inconsistent with the information now provided by the applicant and indicated this document was not genuine.
The applicant said that he did not know why it said this. The Tribunal noted that even the spelling of the name of the party was not correct in this document. The applicant said that he did not know why this was so.
The Tribunal asked the applicant to explain why he feared harm in India. He said that he would give speeches, and the AIADMK party who were in power warned him not to give speeches. He said that they filed a case against him for creating an unnecessary disturbance. He said that he could not recall when this case was made but perhaps it was in 2014.
The applicant said that he gave speeches for the party no more than [distance] km from the village he was living in. He said that he was arguing for the rights of the lower caste people. He said that he only gave speeches for about a year, stopping maybe in April 2014. He said that on two or three occasions thugs attacked him. He said that he was severely beaten at a market and had to go to hospital because he had bruises. He said that he had no evidence to support the claim that he ever went to hospital. He said that he went to the police but they refused to take his complaint. He then said that he did not go to the police. He then said that he could not remember if he went to the police.
The applicant said that he was in hiding for about six months at his [Relative A’s] home. He said that he heard people were looking for him about a month or two months before he left India and so he decided he needed to leave the country. He said this was in about June or July 2015. He then said that he then made arrangements with his agent to apply for the Visitor visa to leave India. He then said that it was before he heard that people were looking for him at his [Relative A’s] place that he asked the agent to make arrangements to allow him to leave India. He said that apart from the fact that he heard people were looking for him, nothing adverse happened to him whilst he was at his [Relative A’s] place. He said that he did not leave India immediately after being granted the visa because he had to get his passport from his home village and he needed to decide whether he wanted to leave India or not.
The applicant said that police came and looked for him at his [Relative A]’s place and said that there was a case filed against him. He said they had a First Instance Report but they did not give him a copy of it because they did not need to arrest him. He said that the police were looking for him to make him surrender. The Tribunal noted that he had not previously claimed that the police with trying to arrest him. He said that he had not made this claim because the lawyer did not ask for those details.
The applicant said that he left the Viduthalai Seeruthai Party in April 2014 because they didn’t help him. He was no longer active in the party after that time.
The Tribunal referred to the court document the applicant had provided to the Tribunal. The applicant said that this case was brought because he had delivered speeches against the government and caused unrest in the community. The Tribunal noted the court case was given a file number of [number] which meant that it would have been filed in 2015, at least eight months after the applicant was last involved in the Viduthalai Seeruthai Party. The applicant could not explain this.
The applicant said that the other people named in the document were his mother [and specified family members]. He said that the purpose of the complaint was to make him return to India. He said that this was a second case and not the original complaint. He said that they were putting pressure on his family to get him to return to India. The Tribunal noted that he had said that his family had no problems living in India. He said that he did not know why his other family members were included in the complaint.
The Tribunal asked the applicant why it would not be possible for him to relocate to some other area in India. The applicant said that he could go out of Tamil Nadu and live in another state but there are people from Tamil Nadu everywhere in India and he may still be identified. He said that there would be a possibility that he would be recognised and arrested. He said that if something happens no one could do anything about it.
The Tribunal referred to the Treaty of Peace and Friendship between India and Nepal. This would allow the applicant to reside and work in Nepal. The applicant said that the AIADMK party was against him and they might look for him there. He said that the case against him is still valid and he cannot go back to India. He said if he could stay in Australia for two or three more years and if the AIADMK party lost the next election then he could return to India.
CRITERIA FOR A PROTECTION VISA
The criteria for a Protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Country information
DFAT describes India as having a diverse political landscape which represents different ethnic, religious, secular and political interests. Political parties often court ethnic, religious and caste based minorities for their ability to deliver ‘vote banks’.[1] There are over 2000 registered political parties in India, many state-based.
[1] DFAT Country Information Report – India dated 17 October 2018 at paragraph 3.21.
There are a few publicly available statistics on election incidents or on political violence outside periods of elections. Most violence is reported to occur during election campaigns. DFAT assessed the threat posed to members of opposition parties as follows:
DFAT assesses that leaders and members of opposition political parties do not face official or societal discrimination. The risk of political violence between rival supporters increases during parliamentary and state elections, especially in states where results are tightly contested. However, in general, elections in India are peacefully conducted.[2]
[2] DFAT Country Information Report – India dated 17 October 2018 at paragraph 3.25.
The Viduthalai Seeruthai Party is a political party based in Tamil Nadu formed in the 1990s to represent Tamil Dalits. In 1999 it formed a political group and contested elections for the first time. Since then, the party remains a marginal player with limited success in elections. They have formed coalitions with other parties within Tamil Nadu to increase their influence in the state legislature.[3]
[3] Gorringe, H. (1). From Untouchable to Dalit and beyond: New directions in South Indian Dalit politics. The South Asianist Journal, 2(1). Retrieved from accessed 25/2/2020.

The Indian Constitution guarantees citizens the right to move freely throughout the territory of India and the right to reside and settle in any part of the territory of India, subject to reasonable restrictions. India’s internal migration flows are substantial with many Indians relocating to major cities throughout India, despite a diversity of languages which may provide a barrier for some people to relocate[4].
[4] DFAT Country Information Report – India dated 17 October 2018 at paragraph 5.14 and 5.17.
Although forgery, making false documents and using false documents are offences under Indian law, DFAT reports that sources claim the manufacture and use of fraudulent documents is prevalent in India, including for immigration purposes. Documents vulnerable to forgery include civil registry documents, letters of employment, financial documents, educational qualifications, newspaper articles, political party registration and websites specifically created to validate other documents[5].
[5] DFAT Country Information Report – India dated 17 October 2018 at paragraph 5.28.
CONSIDERATION OF CLAIMS AND EVIDENCE
On the basis of the applicant’s identity documents, including his passport and evidence provided at the hearing before the Tribunal, the Tribunal accepts that the applicant is a national of India. Therefore, for the purposes of s.36(2)(a) of the Act and the meaning of refugee in s.5H of the Act, the Tribunal accepts that India is the country of nationality. For the purposes of s.36(2)(aa) of the Act, the Tribunal accepts that India is the receiving country.
The basis of the applicant’s claim is that he was a member of the Viduthalai Seeruthai Party and became a [position 1] of a branch of that party in Tamil Nadu. He claimed that as a result of his activities with the Viduthalai Seeruthai Party and supporting the improvement of the Dhalit caste, he was targeted by opposition parties including the BJP and the Congress Party, and was subject to police harassment and is now subject to an arrest due to false allegations made against him. He claims that as he has left the Viduthalai Seeruthai Party they no longer support him.
The Tribunal does not accept any of the claims made by the applicant. The Tribunal does not accept that he was a member of the Viduthalai Seeruthai Party or that he was involved in any activity with that party which would have led to his having a well-founded fear of persecution or that there is a real risk that he would suffer significant harm in India. The Tribunal does not accept that the applicant was ever made a [position 1] of the Viduthalai Seeruthai Party or that he is subject to any arrest warrant or court proceedings in India. The Tribunal accepts the applicant was born into the Dhalit caste, but does not accept that as a result of him being born into a scheduled caste, he has a well-founded fear of persecution or there is a real risk that he would suffer significant harm.
The Tribunal did not find the applicant a credible witness. There are numerous instances of inconsistencies and inherently unlikely accounts of events the applicant claimed happen. The applicant was vague and provided only general accounts of events fundamental to his claims which, if they had occurred, the Tribunal finds the applicant would have been able to provide a more detailed account. The Tribunal finds that the applicant has also provided bogus documents to support his claim.
The applicant provided inconsistent information as to when he joined the Viduthalai Seeruthai Party and his position within that party. In his application, he claims that he became a member of the party in the second quarter of 2013. This would mean that he became a member of the party some time in April to June 2013. He claimed that he was a member of the party for two or three years. He also claimed that he left the party in April 2014 because they did not provide him any support. This would mean that the applicant was only a member of the party for, at most, a year, and not the two or three years that he claimed he was.
The applicant claimed that after joining the party he became the [position 1] after about four or five months, meaning that he would have become the [position 1] of the local branch in about August or September 2013. The applicant was not able to provide any details of what his appointment as a [position 1] of the party entailed. He described it as “not a very high position” and he would just be invited to give speeches at rallies. He was not able to provide any details which would indicate as [position 1] he was involved in the administration and organisation of the party.
The claim that he became a [position 1] of the party in August or September 2013 is in contradiction to the letter the applicant provided, purportedly from the district organiser of the Viduthalai Seeruthai Party. This letter is dated [in] March 2013 and states that the applicant was appointed the [position 1] of [Village 1] in Thanjavur District in [Area 1] from [that date].
As the applicant claimed that he had been working in [Country 1] from [October] 2011 to [March] 2013 it is inherently unlikely that he would have been made a [position 1] of the Viduthalai Seeruthai Party [a date in] March 2013, only [number] days after he had returned from [Country 1]. The fact that he claimed he only joined the party two or three months after returning to India also indicates this letter is not genuine. He gave evidence that he became a [position 1] of the party after being a being a member for about five months, saying this happened in September or October 2013, which is inconsistent with the letter provided by the applicant. The fact that he has provided this letter in support of his application undermines the claims made by the applicant, including that he was ever a member of the Viduthalai Seeruthai Party. When this information was put to the applicant, he responded by simply saying he did not know why it was so.
The applicant claimed that he became the [position 1] of the party because he was active with the party and his enthusiasm in giving speeches led him to be appointed as a [position 1]. He described himself as “a rising political personality and firebrand speaker”. The applicant provided no evidence to support the claim that he has ever been involved in speeches or in promoting the Viduthalai Seeruthai Party. He said that there were no photos of him presenting any speeches on behalf of the party, attending any party meetings or any reports of speeches that he claimed to have delivered or activities he participated in.
The Tribunal does not accept that if the applicant had been actively involved over a 12 month period with the Viduthalai Seeruthai Party such that he would have been appointed a [position 1] and been considered a rising political personality, he would not have some evidence to support his claim. The Tribunal does not accept that if the applicant was involved with the Viduthalai Seeruthai Party and had drawn the attention of opposing political parties that he would not have some information to show his activities within that party. That the applicant does not have any independent information showing his involvement with the Viduthalai Seeruthai Party indicates he was not involved with that party at all.
In his application, the applicant complains that on a few occasions he was manhandled, tortured and detained by the police. He claims that the political parties were using the police force to threaten him. He does not make any claim that he was directly attacked by people from the other political parties. Before the Tribunal, however, the applicant claimed that on two or three occasions thugs attacked him. He claimed to have been severely beaten and had to go to hospital. Despite this, the applicant provided no evidence that he had ever suffered any injury as a result of the alleged attacks or reports from the hospital that he had been admitted for any reason.
The applicant provided vague and confusing information when the Tribunal asked him to provide details of these alleged assaults. He could not remember when they occurred or the details of the alleged attack. When asked whether he reported the attacks to the police he said that he did make a complaint to the police but they refused to record it. He then said that he did not go to the police. He then said that he could not remember if he went to the police.
The Tribunal accepts that if a person has suffered a traumatic event their recollection of that event may not be perfect. The Tribunal does not accept, however, that the applicant would not be able to provide more than just a general claim that he had been beaten by thugs on two or three occasions if he had been subject to such attacks. Further, the Tribunal does not accept that the applicant would not be able to recall clearly if he had or had not reported those attacks to the police and what action the police took as a result of those alleged assaults. The vague and general nature of the claims made by the applicant leads the Tribunal to conclude that the applicant has not been assaulted as a result of any political activity that he may have been involved with or for any other reason.
The applicant claimed that he had been subject to harassment and was apprehended without proper documents by the police in India. He claimed the police frequently came to his house to warn him against participating in any political activities. The applicant claimed that he ceased participating in any political activities in April 2014. The applicant did not provide any evidence that the police had any interest in him at any time prior to his claim that he ceased giving any speeches or supporting the Viduthalai Seeruthai Party in April 2014.
The applicant claims that due to his activities with the Viduthalai Seeruthai Party the police were seeking to arrest him on the instructions of the ruling political parties. He claims that he stopped supporting the Viduthalai Seeruthai Party in April 2014 and they had not provided him any support since then. The applicant claimed that for the last six months that he was in India he was in hiding at his [Relative A’s] place from the police. He said that he made arrangements to depart India because he heard the police were still looking for him and had asked him to surrender. This was not a claim the applicant previously made.
The applicant provided a number of identity documents to the Department. This included his passport, which was issued [in] 2014. He provided his Indian driver’s licence issued [in] May 2015. The Tribunal does not accept that if the Indian authorities had any interest in the applicant, he would have been able to obtain a passport and a driver’s licence without the authorities knowing where he was. That he decided to apply for a driver’s licence at the time he claims that he was in hiding makes it inherently unlikely that the applicant was of any interest to the authorities in India.
The applicant provided a document he claimed was the criminal proceedings in relation to the false case instituted by the police due to a political vendetta. The document contains the file number [number]. The document is purportedly issued by the Head Clerk of [Court 1], [Town 1].
The document names the applicant and four other people as the “Petitioner/Accused” against the police as the “Respondent/Complainant”. The applicant explained that the other people identified in the document were his mother, [specified family members] and his wife. The docket indicates that the matter was called in court for the first time [in] February 2018 and then called almost every month since then. The document does not provide any particulars of any charge against the applicant or the other members of his family or the reason why he would be required to attend court.
The applicant provided evidence that his mother continues to live on his family’s farm in the same village he was living in in Tamil Nadu. He indicated that his mother did not have any problems living in India and she employed people to work on the farm. He did not indicate that she had been involved in any political activity at all. The applicant said that his wife and children are living with her mother approximately [distance] km from his hometown. He again indicated that she did not have any problems living in India. [Another family member] lives on a farm with [family] and has no problems living in India. He provided no information which would indicate that any member of his family has been involved with the Viduthalai Seeruthai Party or in supporting any political or other group for any reason.
As none of his family members claim to have been involved in any political activity, it is inherently unlikely that they would be named with the applicant as an accused and be wanted by the police for any reason. The applicant said his family have no problems living in India and they are not in hiding. There is no evidence that that they have been required to attend a court for any reason. As the applicant indicated that none of his family has any problems living in India, the Tribunal does not accept that they are involved in any court proceedings initiated by the police or any other individual or organisation for any reason.
The genuineness of the document provided is also questionable. The document has a file number of [number]. This would indicate that the proceedings commenced in 2015. As the applicant claimed that he ceased making any speeches or being involved with the Viduthalai Seeruthai Party in April 2014, it is questionable why court proceedings would begin in 2015. If the proceedings were commenced in 2015, it is questionable why the first “docket entries” are listed as [a date in] February 2018, more than two years after the applicant had departed India. As the applicant claimed that when the police did detain him they warned him against participating in any political activities, there would appear to be no reason why the police would have any interest in the applicant in 2015 when he claimed he had stopped participating in political activities in April 2014.
The Tribunal does not accept that if the Indian authorities had any interest in the applicant for any reason, they would have commenced proceedings against him so that the first day the matter was before the court was [in] February 2018, two years after he had departed India. The applicant departed India using his valid passport. As such, the Tribunal does not accept that the Indian authorities would not have been aware that the applicant had departed India at the time it is claimed that they were pursuing him in court.
The Tribunal finds the court proceedings purportedly issued by the Head Clerk of [Court 1], [Town 1] is a bogus document. The Tribunal does not accept that this is a genuine document but finds that it has been generated by the applicant for the purposes of his Protection visa application and is not a true reflection of any interest that the authorities or any other person has in the applicant in India.
As indicated above, the Tribunal has found that the applicant has provided bogus documents in support of his application. These were the document purportedly issued by the Head Clerk of [Court 1], [Town 1] and the letter dated [in] March 2013 purportedly issued by the district organiser of the Viduthalai Seeruthai Party stating that the applicant had been a [position 1] of the party since [that date].
As referred to in paragraph 43, the manufacture and use of fraudulent documents is prevalent in India, including for immigration purposes. The applicant acknowledged that in relation to his Visitor visa application he provided bogus documents as to his employment, tax returns, bank records and other supporting material to support the grant of that visa. The applicant claimed that it was not him who produced these documents, but his agent, and he was simply relying on his agent to be able to get him out of India. He claimed that the documents he had provided in support of his Protection visa application were genuine. The Tribunal does not accept this.
The Tribunal finds the applicant has been complicit in the production of bogus documents to support an immigration outcome he desired. The Tribunal finds that the applicant has been complicit in obtaining and willing to provide bogus documents as set out above to support his Protection visa application. The Tribunal finds the fact that the applicant has been complicit in obtaining bogus documents undermines the claims that he has made in respect of his Protection visa application.
The Tribunal has considered all the claims made by the applicant both individually and cumulatively. The Tribunal does not accept that the applicant was ever a member of the Viduthalai Seeruthai Party and does not accept that he was involved in giving speeches on behalf of the party or that he was made [position 1] of the party. The Tribunal does not accept that the applicant made speeches in support of the Dalit caste or that he made any speeches that would cause him to be of any interest to any other group or individual. The Tribunal does not accept that the applicant has been of any interest to the police in India or that the police wish to speak to him for any reason or that they want him to “surrender”. The Tribunal does not accept that at any time the applicant was residing in India he was in hiding from the police or any other organisation or individual.
The Tribunal does not accept that the applicant has a well-founded fear of persecution for any reason. The Tribunal does not accept that if the applicant returns to India there is a real risk that he would suffer significant harm from any person or organisation.
Accepting the applicant’s claims at their highest, the Tribunal finds that at best the applicant would face difficulties within a limited area around his hometown. The applicant claimed that the basis of the threats made against him were due to his giving speeches for the Viduthalai Seeruthai Party. He said he ceased doing this in April 2014 and the Viduthalai Seeruthai Party has not supported him since then and he has not been a member of that party. He claimed that the speeches he gave were within a [distance] km radius of his hometown.
The applicant stated that he spoke Tamil, Hindi, Malayalam and a bit of English. The applicant has lived and worked in [Country 1] for several years commencing in 1997. The fact that the applicant was able to live and work in [Country 1] for several years indicates that he has been able to financially support himself and maintain social contact in areas where he does not speak the primary language. The applicant’s first language is Tamil which is the fifth most common language in India[6]. This provides an opportunity for the applicant to live in a number of states of India where there is a large Tamil speaking population, such as Kerala, Karnataka and Andhra Pradesh. As he also speaks Hindi, which is the most common language in India, he would have no difficulty in living in many of the northern states of India, including many large cities such as New Delhi.
[6] Data obtained from the 2011 Indian census reported on
At best, the applicant was only giving speeches supporting Viduthalai Seeruthai Party, a state based party in Tamil Nadu, for about a year. For most of his adult life the applicant has not been living in India. Based on his claims, the applicant does not have a profile within the Viduthalai Seeruthai Party that would mean that he would be of any interest to any other political organisation outside a [distance] km radius of his hometown and certainly not outside the state of Tamil Nadu.
When the Tribunal put to the applicant that he would be able to relocate in India to another state, the applicant acknowledged that there are a large number of people from Tamil Nadu who live throughout India. He claimed that he may still be identified. The Tribunal does not accept that, based on the activities the applicant claimed to be involved in around the [distance] km radius around his hometown for a period of about a year, and with the lack of profile that he has regarding being associated with the Viduthalai Seeruthai Party, he would be able to be identified outside that area which would lead to him having a well-founded fear of persecution or there being a real risk that he would suffer significant harm in any other area of India. Even if he was identified, the Tribunal does not accept, based on the claims the applicant has made, that outside the state of Tamil Nadu the applicant would be of any interest to the police or any other group or political organisation or individual.

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 any of the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Hugh Sanderson
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:   For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:   For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:   For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:   Section 5G may be relevant for determining family relationships for the purposes of this section.
5L     Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 1857

28 February 2020

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