1701904 (Refugee)

1701904 (Refugee) [2020] AATA 4841 (27 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1701904

COUNTRY OF REFERENCE: India
MEMBER:Hugh Sanderson
DATE:27 October 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 October 2020 at 4:25pm

CATCHWORDS
REFUGEE – protection visa – India – political opinion – Tamil Nadu Muslim Munnetra Kalagam – religion – Muslim – kidnapping – attacks by Bharatiya Janata Party (BJP) – physical assault – police – 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 dependants.
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 18 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 7 January 2016. The delegate refused to grant the visa on the basis that the applicant did not have a well-founded fear of persecution or real risk that he would suffer significant harm if he returned to India.
Background
The applicant was born in India and is currently [age] years old. His wife and [children], currently aged [ages] years old, continue to live in India. His parents continue to live in India.
The applicant claimed that when he was living in India he had a business [servicing products] and selling [related] accessories. He claimed that he was interested in politics and welfare associations and joined the Tamil Nadu Muslim Munnetra Kalagam (TMMK). He claimed that due to the community activities of the group, including organising blood donations, free eye checks and free ambulance services, the group is appreciated by all communities including the Hindu and Christian communities.
The applicant claimed that the BJP and their “brain organisation”, RSS and VHP, are not happy because they want to destroy goodwill to the Muslim community. He claimed that the BJP made fake complaints against them.
The applicant claimed that one day when he was closing his shop a group of men used rubbish words against him and Muslims, and threatened to knock his head off. He said that on advice from people with TMMK, he kept calm and ignored their protests. This made the men from the BJP more angry, and a group of men attacked him with dangerous weapons. He could not identify them but when he shouted out the gang ran away, leaving him with a few injuries. He claimed that people in the street helped to take him to a clinic and he made a complaint to the police, who said that as he could not identify the people who attacked him they could not do anything.
Later, some men came into his shop but after [he served them], they refused to pay him and told him he should leave India and do business in Pakistan. He then realised that they were the people who had attacked him previously. When he shouted at them and they ran away, people did not help him because they said that they were dangerous people. He reported the matter to the police, but they did not show any respect to him.
When he was going to the mosque for prayer, he was stopped by a group of men from the BJP who attacked him. He got help from other Muslims to stop him from being injured. That same day, [in] July 2015 at 10 o’clock, he was kidnapped by a gang of four men who tied him up and tortured him badly. His family reported this to the police. The applicant escaped on [a later date in] July 2015 and went to the police. They told him that he was lucky to be alive and he had better go somewhere else before he dies. The applicant claimed he remained in hiding after this, but his family remained living in the same house. He claimed that sometimes people came outside his house to call his name and his family were really scared and upset about the BJP activists.
The applicant claimed the BJP activists want his life as their victory and they have threatened his father, stating that only if they kill his son will they let the rest of the family live peacefully, so he decided that he had to leave the country and travelled to Australia.
The applicant was interviewed by an officer from the Department. During that interview, the applicant made the following claims:
·He had done voluntary work for TMMK and this was why he had been targeted, and because he was a Muslim;
·The BJP are starting to control Tamil Nadu as they control the central government;
·The BJP and RSS would come into his shop and be violent from the beginning of 2015, and once when he closed the shop four people came and assaulted him;
·He had been beaten up and had to go to hospital, but did not have any evidence of any treatment or admission to hospital;
·When he was kidnapped, he was beaten and held from [between specified dates in] July 2015;
·He managed to escape early in the morning on [the day in] July because the people who were guarding him got drunk and fell asleep and so he was able to go out a door which was not locked;
·After escaping, he walked for a while until he came to people who then gave him some money so he could get a bus back into Chennai, which took about one and a half or two hours;
·He told the police everything, but they said that as he could not tell them who it was that kidnapped him they could not do anything;
·After he escaped, people would monitor him and follow him, so he had to stay in hiding;
·He was not able to travel anywhere else as the BJP control everything and will find him wherever he goes;
·As he does not speak any other language apart from Tamil, he would not be able to live in any other part of India; and
·He could not relocate to Nepal because Muslims are not accepted in Nepal and the Nepalese do not oppose the BJP.
The delegate who considered the application accepted the claims made by the applicant. The delegate found, however, that the applicant would be able to relocate to Ramanathapuram in Tamil Nadu where he had lived for a period without any difficulties. It was noted that the state of Tamil Nadu had a population of over 70 million people and the applicant would only face a remote chance of any persecution or harm.
Accordingly, the delegate found that the applicant would be able to relocate in Tamil Nadu and it would be reasonable for him to relocate. If he did relocate, he would not face any persecution or real risk of harm.
Information to the Tribunal
The applicant appeared before the Tribunal on 22 October 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 that it would be putting information to him which would be the reason, or a part of the reason, for affirming the decision under review. It would explain what the information was, why it was relevant and then invite the applicant to comment on or respond to the information. If he required more time, he could request an adjournment.
The applicant said that he had prepared his Protection visa application himself. He said that he had nothing he wished to change or add to the claims he had made in that application. He said that he was currently living in [a named suburb] with three other people. He was working at a [company] [with specified tasks].
The applicant said that he phones his family every day. He said that his wife and [children] were living with his wife’s parents in [Town 1]. He said that his parents are living in Chennai and his [specified family members] also live in Chennai. He said that none of his family members have any problems living in India.
The applicant said that when he was in India he had a small business buying and selling [products] and [related] accessories. He said that there was no shopfront for his business, but he would just go around places to buy and sell [products]. He said that he did not repair [products] and was not involved in [servicing these products] or anything like that. He said that all he did was buy and sell [products] and [related accessories]. He had been doing this for about five or six years before he left India. Before that he worked as [an occupation 1].
The Tribunal asked the applicant about TMMK. He said that they just do good things for poor people. He said that his involvement was as a volunteer. [Details deleted]. He said that he had no evidence that he was ever a member of TMMK because he left India without taking anything. He said that he had not asked his family to send him any documents to show that he was ever a member of TMMK. He said that he was an ordinary member and was not involved in the organisation in any other way.
The applicant confirmed that his business did not have any shopfront and that he would just go around to other people’s businesses to buy and sell [products] and accessories.
The applicant claimed that he was kidnapped by people when he was going home one night at about 9:00pm or 10:00pm. The Tribunal attempted to get details from the applicant as to the circumstances of the alleged kidnapping and what happened to him while he was held by these people. He said that he was assaulted and taken away in a car. When asked for more details, he said that he was assaulted. The Tribunal noted that he had not provided any details of what had happened to him over the time that he was kidnapped. He said that he was assaulted. When asked what injuries he suffered, the applicant said that he got a swollen face and was beaten up. He said that it was the BJP and RSS who did this to him. When asked for more details on what happened, the applicant replied that it happened to him so he is now asking for asylum as they will keep beating him.
The applicant said that he escaped from where he was being held because the people who were guarding him had gone out and he found that the door was open. He said that they had been gone for about a half hour or three quarters of an hour before he left. He said that he left at about 7:00pm or 8:00pm or 9:00pm. He said that he walked for a while and then met a person on a motorcycle who then gave him a lift back into Chennai. He said that it took about one hour to get back home. The applicant claimed that he went to the police and made a complaint, but the police did not respond too much and did nothing.
The applicant claimed that he feared returning to India because the BJP and RSS were targeting him because he was doing a good job with TMMK and because he was a Muslim. He said that he could not make any complaint to the police because they support the BJP.
The Tribunal noted that Tamil Nadu has a population of over 70 million people, 4 million of whom identify as being Muslim. There were very few reports of any attacks on Muslims in Tamil Nadu and it appeared that ordinary Muslims live safe lives there. As he has no profile as a leader of Muslims or a leader of TMMK, the claims that the applicant was making that he has been targeted as a Muslim and a volunteer of TMMK were inherently unlikely. The applicant said that because these things happened he came to Australia and he cannot go back to India.
The Tribunal referred to the process under s.424AA of the Act. The Tribunal referred to the interview the applicant had with the Department when assessing his application. The Tribunal noted numerous inconsistencies in the information provided by the applicant to those he is now claiming in respect of the kidnapping. This included the fact that he claimed that he had been left alone when he escaped instead of the people guarding him having fallen asleep after getting drunk, and the circumstances of that escape, including that he got a lift with a person on a motorcycle, instead of being given money by someone to allow him to catch a bus home. This inconsistency undermined the credibility of the applicant and whether the claims made by the applicant actually occurred. This could lead the Tribunal to conclude that claims made by the applicant never occurred, and that he does not have a well-founded fear of persecution nor that there is a real risk that he would suffer significant harm if he returned to India.
The applicant said that he did not know how to explain things, but the Tribunal should just believe him.
The Tribunal noted that the applicant had confirmed that he never had a shop and that all he would do would be to go to places to buy and sell [products] or accessories. Further, he confirmed that he never had a shop where he would fix [products] or that he would [service products] for people. This was inconsistent with the information he provided in his application, when he claimed that he had a shop and that was where the people from the BJP had threatened and assaulted him. He also claimed that when he was in his shop, some people came in to get their [products serviced] and after he had done this they refused to pay him any money and he realised those people were from the gang who had assaulted him. This inconsistency again undermined the applicant’s credibility and whether any of the claims made by the applicant had ever happened.
The applicant initially responded by saying that he forgot to tell the Tribunal that they did go to his shop, but then said that he never had a shop and that the incident happened when he was at a shop to buy or sell [products]. He said that he did not know how the claim that he had [serviced] a person’s [product] was included.
The Tribunal raised whether the applicant would be able to relocate elsewhere in Tamil Nadu. He said that he had never lived anywhere else apart from Chennai and had only visited his wife’s family in [Town 1], travelling by train. He confirmed that the only time that he had problems with people was when he had been in Chennai.
The applicant confirmed that the people who he feared were from the BJP. The Tribunal noted that the BJP had not been successful in the most recent elections in Tamil Nadu, attracting just 3% of the vote and not being able to hold any seat. A report from thehindu.com indicated that “it was a wave against the BJP in the state that led to the rout of the alliance it had”. This indicated the BJP has little or no influence in Tamil Nadu and specifically within the police and Tamil Nadu. The applicant said he had nothing further to say.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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.
Credibility
The Tribunal did not find the applicant to be a credible witness. When answering questions with regards to his claims of suffering harm and persecution in India, the applicant was evasive and vague in describing events he claimed had happened to him. There were numerous inconsistencies in his description of specific events that he claimed occurred. Although the Tribunal accepts that people who have suffered trauma may have difficulty recalling particular events or describing what has happened to them, the Tribunal does not accept that the level of the evasiveness and his inability to describe particular events in greater detail, and the inconsistency in the events in the applicant’s life, as described below, can be attributed to any actual trauma or harm being caused to the applicant. Instead, the Tribunal finds that the applicant has created a false narrative to support his application and that he has not suffered any harm as he has claimed while in India.
The most significant claim the applicant has made is in relation to being kidnapped and then being held by a group of people [between specified dates in] July 2015. Despite this claim being the most significant aspect of his claim, he was not able to provide any clear details of how he was kidnapped or the circumstances of his being held over a three day period.

When asked by the Tribunal to describe the actual kidnapping event, he simply said that he was assaulted and taken away in a car. He did not provide any clear details of how he was taken, how he was held in the car, how many people had taken him or any other details of the claimed event. When asked what happened to him when he was held by these people over a three day period, he simply said that he was beaten. When asked for any specifics of the events over that time, he again repeated that he had been beaten and suffered a swollen head. He was not able to describe the circumstances of how he was held over that period, where he was held, what he did, or any other details of the alleged beatings, apart from saying that it was with a stick.
Again, the Tribunal accepts that some people may be unable to provide any clear description of a particular event if they have suffered some trauma, however, the vague and evasive manner in which the applicant describes the alleged event leads the Tribunal to conclude that it never happened.
This conclusion is supported by the inconsistencies in the applicant’s claims when he did provide details of the event, and in particular how he allegedly escaped being held by members from the BJP. When interviewed by the Department, the applicant claimed that the people who were holding him had gotten drunk and fallen asleep and he left through an unlocked door. When interviewed by the Tribunal, the applicant claimed that the people that were holding him had gone out and after 30 or 45 minutes of being alone he found they had left the door unlocked and so left. To the Department he claimed that after walking for a short time he met people who gave him some money to be able to catch a bus home. To the Tribunal he claimed that after walking for a short time he met a person on a motorcycle who agreed to give him a lift into town.
As indicated above, the applicant’s general narrative as to the events of the kidnapping and being held by these people, both in his initial application and when asked about it by the Tribunal was vague and evasive. When particular details have been provided after questioning by the Department and the Tribunal, he is inconsistent in his description of what happened. This undermines the credibility of the applicant and the whole of his claims.
The inconsistent information provided by the applicant was not restricted to the events of the alleged kidnapping and being held by members of the BJP. In his written claims he stated that he had a shop which bought and sold [specified products] and accessories and also [serviced these products] for a fee. Many of the allegations the applicant makes about his persecution by members of the BJP centre around the shop. He claims that members of the BJP came to his shop when he was closing it and threatened and assaulted him. On another occasion he claims that members of the BJP came to his shop to [service] their [product] and then refused to pay for the service and again threatened him. This is inconsistent with the information provided by the applicant at the hearing. He said he never had a shopfront and would just go to other people’s shops to buy and sell [products] and accessories. He said he never had a [business servicing these products]. As this was so inconsistent with the claims made by the applicant, the Tribunal had him confirm on a number of occasions that he never had a shop and did not provide this service. When the inconsistency was pointed out to the applicant, he again provided an inconsistent answer by initially saying that he did have a shop, but then saying that it was in other people’s shops that these events happened.
On their own, the inconsistencies may not be important. However, his vague and evasive evidence and the significant inconsistencies as to significant parts of his claims support a finding that the applicant has not suffered the events he has claimed happened and his allegations have no basis in truth.
There is little independent information to corroborate the claims made by the applicant. Despite claiming that he and his family made repeated complaints to the police about the assaults and his kidnapping, the applicant has provided no evidence of any complaint being made and no information which would indicate the police had recorded any complaint made by him or his family. The applicant claimed that the police refused to do anything in respect of his complaints due to their being controlled by the BJP. For the reasons stated below, the Tribunal does not accept the police in Tamil Nadu are controlled by the BJP or that they would fail to record a complaint made by the person against someone from the BJP because of any claimed allegiance the police had with the BJP. That no evidence was provided of any complaint being made by the applicant of any alleged assault or kidnapping undermines his claims.
The applicant also claimed that as a result of the assaults he suffered he was required to go to hospital for treatment. Again, the applicant has provided no information to support this. The applicant claimed that he was forced to leave India without taking this evidence with him. As the applicant has his parents, sibling and wife who continue to reside in India, without any problems or difficulties, if there was any evidence in India in support of his claims, the Tribunal finds that the applicant would have arranged for his family to obtain this information and send it to him in Australia. That he has not done anything undermines the claim that he has ever suffered any injury from members of the BJP which required medical treatment in a hospital or at all.
Nature of the claims made by the applicant
The basis of the applicant’s claim is that he has a well-founded fear of persecution from members of the BJP and RSS as a result of his being a Muslim and his membership of TMMK.
Muslims make up a significant minority in the state of Tamil Nadu. In the 2011 census, the total number of Tamil Muslims was 4,229,479, making up about 6% of the population of the state[1] . The Department of Foreign Affairs and Trade (DFAT) noted that Muslims comprise 14.2% of the population in India, and although there are some communal tensions between Muslims and Hindus, these tensions are restricted mainly in the northern states of India and not in the southern states such as Tamil Nadu. Overall, DFAT assesses that Muslims of India face a low level of official and societal discrimination[2].
[1] Census of India, 2011, The Registrar General and Census Commissioner, India.
[2] DFAT Country Information Report – India, 17 October 2018 at 3.10.
When considering the applicant specifically, he makes no claim that he is anything other than a practising Muslim. He claims to be a member of TMMK, however, is not involved in organising any activities and only volunteers to assist them in their voluntary work. He is not a leader within the Muslim community and the claims he makes of the attacks on him appear to be associated with his work rather than his being a Muslim. His claims include that other Muslims came to his aid at the time of the alleged assaults. There is nothing to indicate other Muslims he has associated with faced any persecution or fear of harm from the people he was alleging attacked him. Apart from claiming that the Muslims who helped him said the people that he claimed attacked him said they were dangerous, there is nothing to indicate that any of those people or any other associate of the applicant ever suffered any harm from the people that he claims have targeted him. There is nothing to indicate that as a Muslim the applicant would face any fear of persecution or have a well-founded fear of significant harm living and working in Chennai.
The applicant claimed that he was a member of TMMK. As with his other claims of making complaints to the police and having been admitted to hospital, he provided no evidence to show that he was ever a member of TMMK. His only claimed association was as a member of TMMK and participating in the voluntary work they do. He provided no independent information which would indicate that he has actually participated in that voluntary work. The applicant makes no claim that he was involved in the organisation or leadership of TMMK. He makes no claim that he was involved in any political actions with TMMK or any other organisation. The stated purpose of TMMK is to assist people in charitable activities. This includes organising blood donations, transport to hospital and other worthwhile activities[3]. They make complaints to the police if they are aware of actions which they consider may be discriminatory[4].
[3]
[4]
There is little to indicate that the activities of TMMK would draw any attention or complaint from any political party or other organisation. Even if it did, the fact that the applicant claims only to have been an ordinary member and assisted them in voluntary work means he does not have a profile or was involved in activities which would mean any group or individual would target him for any reason.
The Tribunal does not accept that the activities the applicant claims to have been engaged in with TMMK mean that he would have a well-founded fear of persecution or that there is a real risk that he would suffer significant harm from any group or individual.
The organisations the applicant claims to be fearful of are the BJP and its associated organisation, RSS. The current Prime Minister of India is from the BJP. The BJP’s main supporter base is in the northern states of India. In the State of Tamil Nadu there is minimal support for the BJP. In the most recent elections in 2019, the BJP attracted only 3% of the vote and was unsuccessful in retaining any seat. The Indian paper, Frontline, in an article dated 25 September 2020, described the vote as “a wave against the BJP in the State that led to the rout of the alliance it had with the AIADMK and a couple of other parties”[5]. The writer expressed the opinion that the parties that had been in alliance with the BJP were now turning against it.
[5]
The result of the most recent election shows that the BJP and any organisation associated with it has not been popular in Tamil Nadu and does not hold a position of power that would influence the police or any other government organisation. The fact that the BJP managed to obtain so few votes in the most recent election indicates that it is not a significant player in Tamil Nadu politics and that its policies have not been adopted by the majority of Hindus in Tamil Nadu. It indicates that the claims made by the applicant that the BJP and RSS have influence in Tamil Nadu with the police and other government agencies and that members of the BJP and RSS would target him for any reason are inherently unlikely.
As set out above, the claims made by the applicant are inherently unlikely when considering the following:
·The claimed activities of the applicant with TMMK were only limited and he is not involved in any organisational or leadership role;
·As a Muslim, he is part of a significant minority group in Tamil Nadu that DFAT has assessed as facing a low level of official and societal discrimination in the whole of India and that discrimination is assessed as lower in Tamil Nadu;
·The actions of the applicant both as a claimed member of TMMK and as a Muslim would be of no concern to any other group or organisation in Tamil Nadu;
·The organisations the applicant claims to fear, the BJP and RSS, have no significant presence in Tamil Nadu such that they would be targeting the applicant for any reason; and
·As the BJP does not have a significant standing in Tamil Nadu, they would not be in a position to prevent the police from providing proper protection to the applicant if his claims were true.
For the above reasons, the Tribunal finds the claims made by the applicant inherently unlikely. The Tribunal does not accept that the applicant has been attacked by any members of the BJP or RSS or by any person for any reason associated with his being Muslim or a member of TMMK. The Tribunal does not accept that the applicant was ever kidnapped or held by any person or group at any time. The Tribunal does not accept any of the claims the applicant has made that he has a well-founded fear of persecution or that there is a real risk the applicant will suffer significant harm for any reason in India.
Relocation
Even if the Tribunal accepted the applicant’s claims, the Tribunal finds that it would be reasonable for the applicant to relocate to another area of Tamil Nadu where he would not have a well-founded fear of persecution or where there would not be a real risk of the applicant suffering significant harm.
The claims made by the applicant are all centred on his home city of Chennai. The activities he has been involved with, both as a practising Muslim and a member of TMMK, have not given him a profile that would be recognised outside Chennai, if at all. His wife is currently living with her family in [Town 1]. He has previously travelled to [Town 1] and did not report any problems while he was there. He would have the support of his wife’s family if he relocated to [Town 1]. Although he claimed that he had not spent any significant time outside of Chennai, there is nothing to indicate that the applicant would have any difficulties living in any other city or region of Tamil Nadu. There is nothing to indicate that any group or individuals in Chennai who he claims have caused him any problems would be able to identify him or find him in any other region of Tamil Nadu.
The applicant has been employed as [an occupation 1] and is currently working [in a specified role] for a [company]. He was able to establish a business buying and selling [products] and accessories in Chennai. There is nothing to indicate that the applicant would not be able to find some form of employment elsewhere in Tamil Nadu. The applicant has shown himself to be a resourceful individual by relocating to Australia and finding employment despite claiming he only was able to speak Tamil. The applicant claimed that he could not relocate to anywhere else in India as he only speaks Tamil. As Tamil is the primary language in Tamil Nadu and there is a large Muslim population throughout Tamil Nadu, he would have no difficulties in assimilating into any other community there.
The Tribunal finds that even if the claims made by the applicant were accepted, it would be reasonable for the applicant to relocate to another area of Tamil Nadu out of Chennai. This could be to [Town 1] or any of the cities in the south of Tamil Nadu. If the applicant relocated out of Chennai, he would not be known by any of the people that he claims he fears in Chennai and he could live his life as he pleased.
As set out above, the Tribunal does not accept the claims that the applicant has made that he has suffered any harm in India or that he faces any threat from any group or organisation in India. Further, even if the Tribunal accepted the claims made by the applicant, the Tribunal finds that it would be reasonable for the applicant to relocate to any area in Tamil Nadu outside Chennai and, if he did, there would not be a real risk that he would suffer significant harm or that he would have a well-founded fear of persecution. For the above reasons, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in India. Further, the Tribunal is not satisfied that as a necessary and foreseeable consequence of the applicant returning to India there is a real risk he would suffer significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy 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 4841

27 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction