1702079 (Refugee)

[2020] AATA 1285

1702079 (Refugee) [2020] AATA 1285 (2 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1702079

COUNTRY OF REFERENCE:                   India

MEMBER:Denise Connolly

DATE:2 January 2020

PLACE OF DECISION:  Sydney

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

Statement made on 02 January 2020 at 2:00pm

CATCHWORDS
REFUGEE – protection visa – India – imputed political opinion – friendship with political party member who was killed – no political membership or activity – religion – Indian Muslim – credibility – inconsistent evidence – country information – status of Muslims in India – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), 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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 24 January 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of India, applied for the visa on 4 January 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.

3. On 17 December 2019 the applicant appeared before the Tribunal to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the English and Tamil languages.

CLAIMS AND EVIDENCE

Evidence provided to the Department

1. When making the visa application the applicant provided the following information.  He was born on [Date] in Tamil Nadu, India.  He is a citizen of India.  He provided a copy of his Indian passport issued on [in] 2007 obtained through normal procedures. He does not have the right to reside in any other country.  He speaks, reads and writes in Tamil and English.  His religion is Islam. He married [in] January 2013 in Chennai. He and his wife have a son. His wife, child and parents reside in Chennai, Tamil Nadu.  From January 2010 to April 2012 the applicant travelled to [Country 1] to study.  [In] April 2014 he travelled to [Country 2] for a visit. He applied for a visitor visa [in] September 2015 which was granted [later in] September 2015.  He arrived in Australia as the holder of a Subclass 600 Visitor visa [in] November 2015.

2. The applicant claims he is from Chennai, Tamil Nadu. He completed a [subject] [qualification] in India in 2007.  He could not find employment so he applied to study at [an educational institution in Country 1]. He went to [Country 1] in January 2010 and did an English course for six months prior to commencing his [study]. He also worked [part-time].  He was involved in [a vehicle accident] and injured.  The doctor advised he not read for long hours so he was not able to continue his [study] in [Country 1].  He returned to India. His family were not happy that he did not finish his [study].  He then married in January 2013 in Chennai.

3. The applicant claims he started a business selling [products]. Soon after he met [Mr A], a cadre in Tamil Manila Muslim League (TMML). The applicant helped [Mr A] buy a car at auction. They exchanged numbers and attended auctions together and became friends. [Mr A] took him to some party meetings. The applicant was not interested in politics, but [Mr A] told him that they should work together for their rights. The applicant was worried his business may be affected if he got involved but he did go to some meetings when he had time.

4. The applicant claims that one day he and [Mr A] were attacked by a group of 4 people sent by [Mr B] and [Mr C], former cadres of the TMML.  [Mr A] explained that [Mr C] and [Mr B] joined the party in 2013 and wanted [Mr A]’s position in the party because he was about to get [an office bearer] post.  At the general party meeting, [Mr C] raised a complaint against [Mr A] regarding corruption. [Mr A] proved himself to be clean and the party head committee warned [Mr C] about his complaint.

5. The applicant was introduced to [Mr D], a good friend of [Mr A] and a cadre of the ruling party of Tamil Nadu (AIADMK).  [Mr D] asked him to be an active politician.  [Mr C] thought that the applicant, [Mr A] and [Mr D] were scheming against [Mr C]. [Mr D] thought [Mr A] should file a complaint against [Mr C] for the previous attack.  However [Mr A] was reluctant because [Mr C] had influence in the police department as he bribed police.  The applicant however took [Mr A] to the police station to file a complaint. The police called [Mr C] and warned him, but took no further action. The applicant was angry at the police for not taking further action.  The police told the applicant and [Mr A] that they were lucky to be alive and should leave politics. The applicant threatened to file a complaint with the commissioner.  The applicant claims [Mr C] then threatened them.  The party [spoke] to [Mr C] and warned him.  [Mr C] left the party and resigned from all his responsibilities.

6. The applicant claims during Ramadan 2014 [Mr A] received a phone call from [Mr C] inviting him to have sahar (the meal before dawn), along with other colleagues, [Mr D] and the applicant. The applicant suspected that [Mr C] was up to something so he rejected the invitation.  [Mr A] attended and after sahar, a group of 5 men with swords and weapons killed [Mr A].  The applicant suspected [Mr C] was involved.  The police explained that they had arrested [Mr B] and [Mr C]. However after a couple of months, [Mr C] was released from gaol. The applicant was then targeted.  He had ceased attending meetings. His family members insisted he was not to be involved in politics.  

7. The applicant was later told [Mr C] wanted to meet him and [Mr D]. He did not want to meet with [Mr C]. [In] March 2015 the applicant received a phone call from a person named [Mr E], a cadre of the Indian National League, who told the applicant that [Mr D] was dead. [Mr E] explained to the applicant that a gang of thirty men killed him.  The police suspected this incident was planned by the popular front of India. However the applicant believes it was [Mr B] and [Mr C].  The applicant was advised by [Mr F] and [Mr G] that they were planning more attacks.

8. The applicant claims that he then got a phone call from an unknown phone number advising there was a [product] for sale. He thought it was a regular customer. He was to meet them in Thiruvotriyur. He arrived and was shocked to see [Mr B]’s car with five men in the car.  He waited there to see what they were going to do. There was a total of seven men. He called the phone number and one man from the gang answered and asked him to come over. The applicant felt nervous and told the man that he would not come over. The man then used bad language.

9. The applicant claims he later spoke to [Mr H] of Viduthalai Siruthaigal Katchi (a Tamil nationalist political party) who told him not to worry. [Mr H] spoke to [Mr B] in front of the applicant. The pair came to a deal and the applicant was very happy with [Mr H]’s work.  However he later watched the news which reported that [Mr H] escaped an attack on his car and 12 men were arrested by police. The next day a man called the applicant and said, “we can easily take off your leader, why not you?” He talked to his family and they told him to leave the country. He decided to leave for his son’s future.  

10. The applicant was interviewed by the delegate on 4 January 2017.  The delegate has recorded the applicant’s oral evidence provided in that interview. The Tribunal has listened to the recording of the interview and has formed the view the evidence recorded reflects that given by the applicant at the interview. He made the following further claims: he provided financial assistance to the Muslim community in India; he is imputed to be a witness of the killings and will be killed to keep him quiet; there are 2 other people in his situation, one has gone to [Country 3], the other [Country 4]; he cannot relocate in India because he has a Muslim Pakistani name; the government tries to oppress the Muslim community and the police monitor Muslims; he will be labelled a Muslim terrorist/activist; he cannot relocate to Nepal because he would face the same problems there as it is predominantly Hindu; and, despite [Mr D]’s murder being over 2 years ago, the political situation has not changed and his return to India would reactivate the matter. Initially he told the delegate [Mr A] was murdered in 2015 but corrected this evidence and indicated it was in 2014.

    Evidence provided to the Tribunal

11. At the hearing the applicant provided to the Tribunal several articles concerning killings in Tamil Nadu. One article, undated, concerning the death of ‘[Mr A]’ does not include publication details or the date of [Mr A]’s death. The applicant indicated he got the article from the [Newspaper]. Other articles dated [October] 2018 concern the death of [Mr I], a [age]-year-old Congress functionary, on the previous Monday ([Date] October 2018). It records that [Mr I] died after being stabbed and that ‘[Mr C]’ surrendered. It also records that 6 other men were suspected of being involved and that they would be arrested soon. He also provided an article from the [Newspaper] about a possible revenge attack on 4 people, including the widow of a slain gangster [Mr J], in connection with the murder of [Mr I]. The applicant also provided a photocopy of an untranslated article, written in Tamil, unsourced and undated.  The applicant told the Tribunal the article states that [Mr I] is the brother of [Mr A].  The Tribunal asked the applicant if he had provided the articles because they relate to his claims. He confirmed that all the articles were about the murder of [Mr A] and his brother [Mr I] and relate to his claims.

12. The Tribunal asked the applicant about the circumstances in which he travelled to Australia. He indicated he came to Australia [in] November 2015 as the holder of a visitor visa which had been granted about 1½ months before he left India.

13. The Tribunal asked the applicant about his family in India. He indicated his parents, wife and son live in Chennai. His wife and son live with her parents who financially supported her. They are middle-class and own a [business]. He sends money to pay for his son’s education. He has been working [in] Australia since 2017, when he got his [license]. He claims to have not worked in Australia before 2017. The Tribunal noted that he had been in Australia since November 2015 and asked how he was financially supported. He indicated a friend supported him. The friend died 4 months before the hearing. The Tribunal asked how the friend was able to afford to support the applicant for so long. He indicated that his rent was only $80 and he did not need much for food. The arrangement was that he would repay his friend when he commenced working.

14. The Tribunal asked the applicant about his financial circumstances in India.  The applicant confirmed that he ran a business in India selling [products]. While the business was successful he was not able to save money as he reinvested any income he made back into the business, after supporting his family. He claimed to have brought only $700 with him to Australia. The [license] course cost $495. He borrowed that money from a friend.

15. The Tribunal asked the applicant about his political involvement in India. He stated that he did not have much political involvement. His friends were involved and they were influential but he did not have the inclination to be politically involved. The Tribunal asked if he was ever involved in any political activity. He indicated that if a friend participated in a protest he might go with them, but only if he had the time. The Tribunal asked about [Mr A]’s involvement in politics. He said [Mr A] was involved in the TMML. The Tribunal asked how long [Mr A] had been involved in the TMML. He indicated it was a long time. The Tribunal asked about the timing of [Mr A]’s death. He indicated it was in about June 2015.  He was killed in Triplicane, Chennai.

16. The Tribunal asked the applicant how he found out about [Mr A]’s death. He indicated that his friend telephoned him to tell him. The Tribunal asked who had told him that [Mr A] had died. Initially he indicated it was [Mr F].  He then indicated it might have been [Mr G].  The Tribunal asked the applicant if he could clarify who had told him that [Mr A] had been killed. He thought it was [Mr F]. The Tribunal asked why he could not recall clearly who had told him that his friend [Mr A] had been killed. He indicated that many people were talking and he was not sure who called.

17. The Tribunal asked the applicant who had killed [Mr A]. He indicated that he came to know from the police and media that it was [Mr B], [Mr C], [Mr K] and [Mr L]. He confirmed that he was not a witness to the killing. He was at home at the time. The Tribunal asked why, in those circumstances, he made a claim to the delegate that he fears he will be considered a witness to the killing. He indicated he thought they might consider him a witness because he knows how they settled things.

18. The Tribunal asked the applicant what action was taken by the police after the killing. The applicant indicated that the perpetrators were taken into custody but [Mr C] was released. He does not know when. He claims that it is the same [Mr C] who was involved in the murder of [Mr I], [Mr A]’s brother. The Tribunal asked how he knows this. He indicated that [Mr C] killed [Mr I] and then surrendered himself to the police.

19. The Tribunal asked the applicant if any of the perpetrators have done anything to him. He indicated that they got him to go to a place for a business deal and spoke to him. He repeated the claims made in his written submission about the call regarding the sale of a [product]. The Tribunal asked about the number and identity of the men. He indicated he only recognised [Mr B].  He could not confirm how many men were present.

20. The Tribunal asked the applicant what had happened to him after [Mr A]’s death that made him fearful he would be harmed if he returned to India. He indicated that they called about the sale of a [product]. When he got there it looked like one of the men was [Mr B] so he called the number of the phone. He thinks [Mr B] answered the phone. He then indicated he has not seen [Mr B] and he does not know his face. He claimed he told the person that he could not make it on that day and they started using bad language. The Tribunal asked when this occurred. He indicated it occurred in about August 2015 but he could not remember exactly when. The Tribunal asked how long after [Mr A]’s death it had occurred. He indicated it happened about 2 or 3 months after [Mr A]’s death.

21. The Tribunal noted that the article the applicant provided about [Mr A]’s death did not include a date or information about its source or the date of the death. He had said it was a [Newspaper] article.  During the hearing the Tribunal searched the internet for [Newspaper] articles about the death. It found an article dated [July] 2014 published by the [Newspaper][1] concerning the killing. The article records that [Mr A] of the TMML was killed while on his way to the mosque on the previous Monday ([Date] July 2014). It records that the police arrested [Mr B] with the help of [Mr G] and [Mr F], [Mr A]’s friends. It also records that [Mr B]’s accomplices, [Mr C], [Mr K], [Mr L] and [Mr M] surrendered before the court and were remanded in custody. The Tribunal discussed the contents of this article with the applicant.

    [1] [Details deleted], access during the hearing on 17 December 2019

22. The Tribunal asked the applicant about any other killing that he was aware of. He indicated that after [Mr A] was killed, they killed [Mr D] and then [Mr I].  It asked about those killings. He stated that [Mr I] wanted to take revenge on [Mr C] and so [Mr C] killed [Mr I]. The Tribunal asked the applicant to focus on the death of [Mr D]. The Tribunal asked about the particulars of the death. He indicated it was in Triplicane. He was not there at the time; he was at his place of business. The Tribunal asked how well the applicant knew [Mr D]. He indicated he was [age] (so in about 2014 or 2015) when he met him through [Mr A]. He was not a good friend. He only met him 2 or 3 times. The Tribunal asked, in those circumstances, why he would be considered in any way a witness to the killing of [Mr D], as he had indicated to the delegate in his interview. He indicated it was because [Mr A] and [Mr D] were good friends and he had a connection with [Mr A].

23. The Tribunal asked the applicant what he has done so far with the information that he has about the killings. He indicated he did not do anything. He confirmed that he did not go to the police. He only went to the police when they were having a meal and they were attacked. That was his only contact with the police. The Tribunal asked about the timing of the attack and his contact with the police. He thought it might have been in March. The Tribunal asked what year. He thought it might have been in 2014. The Tribunal asked the applicant what action if any the police took after that contact. The applicant stated that the police did not take any action because they did not want to get involved. The Tribunal explained that his oral evidence was different to his written claims where he stated that the police contacted [Mr C] and warned him. The Tribunal explained that it may form the view that his evidence on this issue is inconsistent and therefore unreliable. He stated that the police took no official action.

24. The Tribunal asked the applicant what harm he had suffered in India before he came to Australia. The applicant indicated that a mob attacked him and [Mr A]. The Tribunal asked if anything else had happened to him in India to make him fearful. He indicated that there was an incident while he was driving on the road when a lorry nearly hit him. He had to drive off the road to avoid a lorry. He had a suspicion that the lorry intended to hit him. The Tribunal asked why a lorry driver would be interested in hitting him. He did not know but thought that there was enough space on the other side of the road so the lorry could have avoided him.

25. The Tribunal asked the applicant what he fears will happen to him if he returns to India. He indicated that they were trying to kill him. The Tribunal questioned why they were trying kill him, given that he was not politically active and he was not a witness to the killings. He indicated he had a connection to [Mr A], who had been killed. The Tribunal noted that the reports he had provided indicate that the police had taken action and apprehended the suspects. The applicant indicated that in India people use their influence and get out of jail early.

26. The Tribunal asked the applicant why he believes he would now be of interest to anyone in India. He indicated that they fear he might become a witness. He referred to [Mr I] being killed. The Tribunal asked about the timing of [Mr I] being killed. He indicated it was in October, about 3 months before the hearing, (that is, in 2019). The Tribunal noted that the information he had provided indicated that [Mr I] had been killed in October 2018. It explained that this may raise a concern as to whether he did have a connection with [Mr A] given that he did not know when his brother was killed. He indicated he is not good with dates.

27. The Tribunal explained to the applicant that it may not accept that he is of interest to anyone in India or that he had any political profile or association. It explained that even if it accepts the evidence about the killings, it may not accept that anyone would be interested in pursuing him, now 5 years after [Mr A]’s death, given he does not have a political profile and he was not a witness to the killings. The applicant indicated that, in his business, if he says he cannot come now, the other person usually agrees to meet at another time, however in this case when he said he could not come, they used very bad language.

1. The Tribunal explained to the applicant that it may form the view that if he genuinely feared harm in India he would have relocated in India before coming to Australia. The applicant indicated that it was not possible for him to go to a different state in India because he does not know Hindi. He indicated that the government is Hindu and asks people to say Sri Ram. He only knows Tamil and English.

2. The Tribunal noted that the applicant had indicated he cannot live in India because he is Muslim. It noted that there is country information indicating there are over 172 million Muslims living in India, the 3^rd highest Muslim population in the world, with 4 million Muslims in Tamil Nadu. It noted that DFAT has reported that Muslims face a low risk and a low level of societal discrimination. It explained that the Tribunal may not accept that the applicant cannot live there safely because he is Muslim. The applicant indicated that he could give examples of Muslims facing problems in India. He acknowledged that Muslims in Tamil Nadu are safe but they are not always safe in other states. He referred to a man being beaten to death for eating beef.  The Tribunal asked if he had ever been involved in such an attack.  He acknowledged that he was not involved but said there are states where this can be a problem. He indicated he has a Pakistani name and so anything can happen to him. The Tribunal asked if he had had problems in the past because of his name. He indicated that it was okay in his village and in Tamil Nadu because there is not much Hindu action.

3. The Tribunal explained that, given there is a low level of discrimination for Muslims, it may not accept the police did nothing about the murders of the Muslim men. It also noted that the articles provided by the applicant indicated that the police did in fact take action.  The applicant indicated that the police only arrested the men because it was a murder and they had to.

4. The Tribunal noted the applicant’s evidence that he was granted his visitor visa 6 weeks before he came to Australia. It explained that it may not accept he was fearful given he did not leave India as soon as his visitor visa was granted. He indicated that he arranged the visa through an agent and he had to pay him. He could not arrange the payment immediately.

5. The Tribunal explained to the applicant that it needed to give him an opportunity to comment on or respond to information it may consider would be the reason, or a part of the reason, for affirming the decision under review. The Tribunal gave the applicant the particulars of the information and explained the relevance. It also explained the consequences if it relied on the information, that it would affirm the Department’s decision to refuse the visa. It explained to the applicant that he could seek additional time to comment on or respond to the information and it would consider whether it was reasonable to provide further time. The applicant did not seek additional time.

6. The Tribunal explained that the evidence regarding the timing of [Mr A]’s death is inconsistent. It explained that when asked by the delegate at the interview about the timing of [Mr A]’s death he first indicated it was in 2015 and then corrected his evidence indicating he was murdered in 2014. It explained that the [Newspaper] article dated [July] 2014, located by the Tribunal during the hearing and discussed with the applicant, records that [Mr A] was killed in July 2014. The Tribunal explained that the information is relevant because the applicant told the Tribunal that [Mr A] was killed in June 2015. It explained the information demonstrates that the applicant’s oral evidence in relation to the timing of [Mr A]’s killing is incorrect. It explained that it may consider it reasonable for the applicant to remember the date of his friend’s killing. It explained that the information in the [Newspaper] article is relevant because it may lead the Tribunal to find [Mr A] was killed in July 2014 and that the applicant did not know the correct date of [Mr A]’s killing. It may then find that the applicant is not a friend of [Mr A] and was not informed of his death at the time of the killing. It explained that if it made those findings it may find that the applicant does not fear harm in India because of any association with [Mr A] and it would then affirm the Department’s decision. The applicant indicated that he wished to comment at the hearing. He indicated he does not remember dates. He indicated he cannot remember his son’s birthday.

7. The Tribunal asked the applicant if he had any other claims or any other evidence to give. He indicated that these things are happening continuously. He is not sure what his situation will be.  [Mr C] started this and [Mr I] was killed. His friends are trying to seek revenge.  While his evidence about dates might be incorrect, he could have memorised the dates but he did not. The Tribunal explained that his inability to remember significant dates, such as the death of [Mr A] and [Mr I], may raise concerns about whether in fact he was connected to [Mr A] as he has described. The applicant indicated he got confused and mixed up with the dates. He mixed up the date of [Mr I]’s death with the date of a bomb blast.

8. The Tribunal gave the applicant an opportunity to add any further evidence to be taken into account. He had no other evidence to give.

9. At the hearing the Tribunal discussed with the applicant information from the Government of India in relation to their being over 172 million Muslims living in India[2], 3^rd highest Muslim population in the world, with 4 million in Tamil Nadu. It also referred to the DFAT Country Information Report, India, 17 October 2018, page 14 which states that Muslims face a low risk and low level of societal discrimination.

   [2]

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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

Nationality

1. The applicant claims to be a citizen of India and has provided to the Department a copy of his Indian passport. In the absence of any evidence to the contrary, the Tribunal is satisfied the applicant is a citizen of India. It finds India is his receiving country for the purpose of assessing his claims. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any other country for the purposes of the Act.

   Does the applicant have a well-founded fear of persecution?

2. The applicant has essentially claimed that he had some involvement in politics at the instigation of [Mr A]. In his written claims he indicated he attended some party meetings. In his oral evidence to the Tribunal he indicated he attended protests if he had time. He indicated to the delegate that he provided some financial contributions to the Muslim community in India. However this claim was not repeated at the hearing. Having considered the applicant’s evidence in relation to his involvement in politics, the Tribunal is not satisfied the applicant would be considered to have any political profile in India. On his own evidence he was not inclined to be involved in politics. He has however indicated that he has been and will be associated with [Mr A] who was politically active. For the following reasons the Tribunal is not satisfied that the applicant was associated with [Mr A] in the ways he has described, or that he has a profile in India because of any relationship he had with [Mr A].

3. The applicant has claimed that he became friends with [Mr A] after meeting him in a business context. He has indicated that he was [Mr A]’s friend and fears that he will be considered an imputed witness of his killing because he ‘knows how they settled things’. The Tribunal does not consider this to be a particularly persuasive explanation for why he will be associated with [Mr A] and considered an imputed witness to his killing. The Tribunal also finds it concerning that the applicant’s evidence regarding the timing of [Mr A]’s death is inconsistent. It notes his written claims suggest that [Mr A] was killed during Ramadan 2014. However when asked by the delegate about the timing of [Mr A]’s death he initially indicated it was in 2015. He subsequently corrected his evidence to the delegate and said it was in 2014. However in his oral evidence to the Tribunal he indicated that [Mr A] was killed in June 2015. At the hearing he provided to the Tribunal an article regarding [Mr A]’s death.  However the article was undated and did not record the date of death. The Tribunal searched the Internet for [Newspaper] articles about the deaths and found an article indicating that [Mr A] had been murdered [in] July 2014. The applicant’s only explanation for why he did not remember the date of [Mr A]’s death was that he is not good with dates. The Tribunal is of the view that, if it was the case the applicant’s friend had been murdered as he has described, he would remember the date or at least the month and year. The Tribunal also finds it concerning that the applicant could not remember who had informed him of [Mr A]’s death. It is of the view that, if the applicant genuinely was [Mr A]’s friend, and he had been informed of [Mr A]’s murder, it is reasonable to expect that he would remember who provided him with that the information. On the basis of the applicant’s vague and incorrect evidence regarding [Mr A]’s death, the Tribunal is not satisfied the applicant was [Mr A]’s friend as he has described.  

4. The Tribunal also notes the applicant provided at the hearing evidence that [Mr A]’s brother, [Mr I], was murdered. However he indicated to the Tribunal that [Mr I] had been murdered a few months before the hearing, in about October 2019. However on the basis of evidence he provided at the hearing, newspaper articles, [Mr I] was murdered in October 2018. The Tribunal is of the view that if the applicant was genuinely associated with [Mr A] as described he would have remembered that [Mr I] was murdered in 2018, not 2019. The Tribunal does not accept that the applicant has adequately explained why his oral evidence regarding [Mr I]’s death is incorrect. It has formed the view that the applicant was unable to provide correct information regarding [Mr I]’s death because he was not associated with [Mr I]’s brother, [Mr A], in the way he has described.

5. The Tribunal notes when asked by the delegate why anyone would associate the applicant with [Mr D]’s murder in March 2015, given the time that has passed, the applicant indicated that the political situation has not changed and his return to India would reactivate the matter.  He did not repeat this claim at the hearing. The Tribunal notes the applicant’s evidence regarding his association with [Mr D] is vague and unpersuasive and it is not satisfied he would be associated with [Mr D] or considered an imputed witness of [Mr D]’s killing. It is not satisfied the applicant’s return to India would raise any interest in relation to [Mr D]’s killing.

6. The Tribunal has considered the applicant’s claim that he fears harm in India because he was called and asked to meet regarding the sale of the [product]. It notes that his own evidence in relation to this claim is vague and inconsistent. He has indicated there were 5 men present, then indicated there were 7 men present. When asked about the claim at the hearing he could not remember how many men were present. In his written application he indicated that he called the number and one of the men answered. However he told the Tribunal that he thought [Mr B] answered the phone but he then indicated he has not seen [Mr B] and he does not know his face. This was despite having claimed in his visa application that he met with [Mr H] who spoke to [Mr B] in front of the applicant, a claim not repeated at the hearing.  The only reason the applicant could give for why the incident made him fearful was that the person used bad language. The Tribunal is of the view the applicant’s evidence regarding this claim is vague and unpersuasive.  It is not satisfied the applicant is fearful of returning to India because he was called to buy a car but became fearful that he would be harmed when he saw [Mr B]’s car. It is of the view the applicant has manufactured this claim.

7. In his visa application the applicant indicated that, after [Mr A]’s death, [Mr C] was released from gaol and the applicant was then targeted. He also claimed he later spoke to [Mr H] who spoke to [Mr B] in front of the applicant, the pair came to a deal and the applicant was very happy with [Mr H]’s work.  However he later watched the news which reported that [Mr H] escaped an attack on his car and 12 men were arrested by police. The next day a man called the applicant and said, “we can easily take off your leader, why not you?”.  Despite being given an opportunity to raise any other concerns or evidence, the applicant did not repeat these claims at the hearing. Having found that the applicant was not associated with [Mr A] as he has described, the Tribunal is of the view that the applicant did not raise these claims at the hearing because they are manufactured.

8. The Tribunal also notes that the applicant’s evidence regarding action taken by the police is inconsistent. He indicated in writing that the police called [Mr C] and warned him in relation to an attack on the applicant and [Mr A]. However when asked during the hearing what the police had done the applicant indicated that they took no action. The Tribunal is not satisfied the applicant has adequately explained this inconsistency, by suggesting that the police did not take any official action.

9. The Tribunal has also considered the applicant’s claim that he was run off the road by a lorry and suspects that the driver intended to hit him. The Tribunal is of the view, on the basis of his evidence, that it is speculative as to whether a lorry driver intended to hit the applicant. It is not satisfied the applicant has demonstrated that he was deliberately targeted by a lorry driver.

10. The Tribunal notes the applicant’s evidence that he was granted a visitor visa 6 weeks before departing India. It has considered the applicant’s explanation for why he did not depart immediately if he feared harm (that he had to pay the agent) but finds this unpersuasive. It has formed the view that if the applicant was genuinely fearful of harm in India he would have departed immediately after the grant of his visitor visa.

11. Having considered all of the applicant’s evidence the Tribunal is not satisfied the applicant has a political profile or is imputed with any political opinion in India. It does not accept that the applicant was associated with [Mr A] in the way he has described. Accordingly it is not satisfied the applicant is associated with [Mr A] or his family or would be considered an imputed witness of any killings in India as he has claimed. It has considered his evidence that 2 other people have gone to [Country 3] and [Country 4] because they are in his situation but finds this does not add any credibility to his claims. It is not satisfied he was targeted after [Mr A]’s killing. It finds his claim regarding the call about the purchase of a car to be vague and unpersuasive. It does not accept that he sought the assistance of [Mr H], or that [Mr H] was subsequently attacked for any reason associated with the applicant. It does not accept that he received a call suggesting that the applicant could be ‘taken off’. It is not satisfied he has any political or imputed political profile. The Tribunal is not satisfied the applicant genuinely fears persecution in India because of any association with [Mr A] or his family or any political party or group. It is not satisfied there is a real chance the applicant would be persecuted because of his political opinion or imputed political opinion if he returns to India in the foreseeable future.

12. The applicant has also claimed that he cannot return to India because he is a Muslim with a Muslim Pakistani name. He claims that the police monitor Muslims and that the government tries to oppress the Muslim community. He has claimed that he will be labelled a Muslim terrorist/activist. The Tribunal notes that the country information indicates there are over 172 million Muslims living in India, with 4 million living in Tamil Nadu, the applicant’s home state. The Tribunal accepts that Muslims face a low risk and a low level of societal discrimination. It notes the applicant acknowledges that Muslims are safe in Tamil Nadu. The Tribunal is not satisfied there is any evidence to indicate that the applicant has been a Muslim terrorist/activist or would have such a profile. Having considered his evidence the Tribunal is not satisfied the applicant genuinely fears persecution on the basis of his religion or Pakistani name. It is not satisfied there is a real chance the applicant would be persecuted because of his religion or Pakistani name.

1. The Tribunal has not considered whether the applicant can relocate, within India or in Nepal, because it is not satisfied the applicant cannot return to Tamil Nadu, his home state to live with his family in Chennai.

2. Considered overall the Tribunal has serious doubts about the reliability of the applicant’s claims to fear harm in India. For the reasons discussed above it is not satisfied he is a credible witness. Accordingly it does not accept he had a friendship with [Mr A], or that he was attacked or threatened as he has claimed, or has any profile in India that would attract the attention of enemies of [Mr A], [Mr D] and/or [Mr I], or the authorities.  While he demonstrated some knowledge about the deaths of [Mr A] and [Mr I], the Tribunal is not satisfied his evidence demonstrates he would be associated with them in any way if he returns to India.  Overall the Tribunal is not satisfied that the applicant was harmed or threatened in India. It is not satisfied that he will be harmed if he returns to India. It has formed the view that the applicant has manufactured his claims in an effort to achieve his desired migration outcome. It is not satisfied the applicant is of any interest to the authorities or any person in India. Accordingly it is not satisfied the applicant genuinely fears serious harm if he returns to India in the foreseeable future. It is not satisfied the applicant is a person who has a well-founded fear of persecution. Nor is it satisfied there is a real chance of persecution for any of the reasons set out in the Act.

3. Accordingly, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

   Does the applicant meet the complementary protection criteria?

4. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, it has considered whether he may meet the criterion for the grant of a protection visa under the complementary protection criterion.

5. As indicated above the Tribunal is not satisfied the applicant is a reliable witness and it does not accept his claims to have been threatened and/or harmed or to fear harm in India.  The Tribunal notes the applicant has been able to run his own business in India. It notes his family reside in Tamil Nadu and his wife’s family is middle class and has been financially supporting his wife and child. He speaks, reads and writes in Tamil and English. He claims in his visa application he completed a [Qualification]. On this basis it is satisfied the applicant will be able to secure some form of employment in India such that he will be able to subsist. There is no reliable evidence before the Tribunal to indicate that there is a real risk the applicant will suffer significant harm if he returns to India in the reasonably foreseeable future.

6. On the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act. 

7. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

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

Denise Connolly
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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…

Office of the Registrar General & Census Commissioner, India, Ministry of Home Affairs,
Government of India, accessed 16 December 2019