1702717 (Refugee)

[2020] AATA 3299

1702717 (Refugee) [2020] AATA 3299 (2 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1702717

COUNTRY OF REFERENCE:                   India

MEMBER:Nathan Goetz

DATE:2 July 2020

PLACE OF DECISION:  Sydney

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

Statement made on 02 July 2020 at 3:44pm

CATCHWORDS
REFUGEE – protection visa – India – Political opinion – member of Indian National Congress party – threats from BJP members – health conditions – credibility issues – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(H), 5(J), 5K-LA, 36, 65, 438, 424AA

Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant applied for a business visitor visa on 4 December 2015 to enter Australia. On 9 December 2015 this visa was granted, and he arrived in Australia [in] December 2015.

3. On 24 December 2015 the applicant applied for a protection visa.

4. The applicant was interviewed by the delegate on 4 January 2017. On 19 January 2017 the delegate refused to grant the protection visa.

5. The applicant applied to the Tribunal on 16 February 2017 for a review of the refusal decision.

6. On 21 May 2020 the Tribunal wrote to the applicant and invited him to attend a Tribunal hearing by telephone on 1 July 2020. The Tribunal wrote to the applicant on 28 May 2020 and enquired whether the applicant would consent to the hearing being held on 2 June 2020 as the Member had capacity to conduct the hearing earlier than planned. The applicant responded that this was not a suitable day for him, so the hearing remained scheduled for 1 July 2020.

7. By letter dated 24 June 2020 the applicant wrote to the Tribunal and asked for the hearing on 1 July 2020 to be postponed until a later date. The applicant noted that his health was not good. He suffered from anxiety[and other health issues] and was undergoing medical treatment. He attached a letter dated 1 June 2020 from the [Medical] Centre which confirmed that the applicant had these conditions. He was taking [medication] for management of anxiety, had an operation for the management of his [health condition] and will need a follow up with a surgeon because the condition recurred, and he was on medication for [other health issues]. He has seen a [specialist] for management of [one condition] and is on supplements to manage his vitamin B12 and D deficiencies.

8. The applicant also wanted the hearing to be postponed because there were some documents that were not with him. Due to the COVID-19 pandemic and a lockdown in India, he has been unable to get them. He was trying his best to get them but would not be able to get the documents due to the lockdown. He noted his health issues and said he was having financial problems as well as being mentally unstable and felt like he was going into depression. He had confused thinking, an inability to concentrate and excessive fear. He would like to conduct a hearing in person when his doctor gave him the ‘all clear’. He wrote that under his current health conditions he would not be able to present himself over the telephone.

9. The Tribunal considered the request to adjourn the matter and for the hearing to be conducted in person but was not persuaded to do so. The Tribunal was satisfied that conducting a hearing with an appropriately qualified interpreter and speaking in a slow and clear way would allow the applicant to fully participate in the hearing by telephone. While the Tribunal acknowledges that having anxiety [and other health issues] may present the applicant with some discomfort, the existence of those conditions, which the Tribunal is satisfied remain ongoing, does not necessarily mean that the applicant would not be able to meaningfully participate in a hearing. While the applicant wrote he confused thinking, a reduced inability to concentrate and excessive fear, there was no medical report provided stating that the applicant’s medical conditions or medications resulted in confused thinking, an inability to concentrate or developing an excessive fear. Indeed, the letter from the [Medical] Centre did not give a medical opinion stating that the applicant would not be able to participate in a hearing in light of his health concerns and medication.

10. The Tribunal considered the request to postpone the hearing in light of the applicant’s claim that he had documents that would presumably assist his claims but were not available to him. The Tribunal deals with the issue about documents later in the decision.

11. Given all the circumstances, the Tribunal decided to refuse the request to postpone the hearing, and the hearing proceeded as scheduled.

12. On 1 July 2020 the applicant appeared at a Tribunal hearing by telephone. This appearance occurred by telephone because the Tribunal ceased holding face-to-face hearings from 23 May 2020 in light of the COVID-19 pandemic. The applicant told the Tribunal he was speaking from [a suburb in] New South Wales and that he was able to speak to the Tribunal in private. The hearing was conducted with the assistance of an interpreter in the Hindi and English languages who participated by telephone.

    CRITERIA FOR A PROTECTION VISA

13. 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.

14. 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.

15. 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).

16. 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.

17. 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

18. 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

19. The applicant signed a protection visa application form on 29 December 2015 and this was received by the Department on 30 December 2015. Insofar as the delegate decision records that the protection visa application was made on 24 December 2019, the Tribunal suspects that this was a clerical error due the similarity of the number 4 and 9 in handwriting.

20. The protection visa form declares that the applicant received no assistance to complete his protection visa application. He can read and write English, and can speak, read and write Hindi.

21. The applicant claims to be a [age]-year-old man who was born in [City 1], Rajasthan state in India. He is married and has [children]. The applicant told the Tribunal hearing that his wife and children live in the family home in [City 1] with the applicant’s mother. This is the family home where the applicant grew up.

22. According to the protection visa application form, the applicant has never travelled to any country other than Australia in the last 30 years.

23. From 1985 until September 2015 he lived ‘Near [a location in] [City 1], Churu. The applicant confirmed to the Tribunal hearing that his home was located [near a] temple, in the Sujangrah [in] the Churu district in Rajasthan state.

24. From September 2015 to September 2015 he lived in the Nagaland state with a friend.

25. From September 2015 until December 2015 he lived in Guwahati, in the Assam state.

26. The applicant was asked why he left India. He wrote that by profession he was an agent (real estate and [worked for a company in another role]) in India. The applicant told the Tribunal that he was a real estate agent who did not work for a company but he employed his nephew. The [company] was the [Company 1] in India. The applicant wrote that he was an active member of the Congress Party. [Mr A] threatened to kill him. He wrote that he was attaching a typed statement.

27. The applicant was asked what he thought would happen to him if he returned to India. He wrote that [Mr A] was affiliated with the BJP and threatened to kill him. He wrote that he was attaching a typed statement.

28. He was asked whether he experienced harm in India and indicated that he had. He wrote that he was attaching a typed statement.

29. He was asked whether he sought help within India after the harm. He indicated that he had. He wrote that he was attaching a typed statement.

30. He was asked whether he moved, or tried to move, to another part of India to seek safety. He indicated that he had. He wrote that he was attaching a typed statement.

31. He was asked whether he thought he would be harmed if he returned to India. He indicated that he did. He wrote that he was attaching a typed statement.

32. He was asked whether he thought the authorities of India could and would protect him if he returned. He indicated that he did not think they would. He wrote that he was attaching a typed statement.

33. He was asked whether he thought he would be able to relocate with India. He indicated that he did not think he could. He wrote that he was attaching a typed statement.

34. In the protection visa application form, the applicant was advised in the ‘Your reasons for claiming protection’ section that he must provide all the details about why he was seeking protection and, where possible, he must provide documentation to support his claims.

35. The typed statement claimed that the applicant was an Indian national who arrived in Australia [in] December 2015. It noted his birthday and educational achievement. By profession, he was a real estate agent. He worked as an agent since 2007. He also worked [for] [Company 1] of India after finishing his degree.

36. The applicant wrote that he always desired to be a significant presence in his local community and liked the ideology of the Congress Party. He noted the ideology of the Congress Party. He believed that he would be able to provide strong opposition to the activities of the BJP through his political involvement.

37. The applicant noted that he lived in a place that was a mixed area. The majority Hindi population were connected to the BJP and corrupt money flowed easily to their hands. Some of this money was used for illegal activities. Every occurrence was intertwined with religion and the party. He claimed that the BJP threatened and butchered everyone including people affiliated with other political parties.

38. The applicant wrote that during the general election he worked hard with the Congress Party candidates in his area. The BJP members asked him for a political donation, but he did not give any. He also asked his fellow agents to not give the BJP any donation. The applicant was threatened many times, but he was not worried and continued his own business. He had been protesting against the BJP since they came to power in his home state because criminal activities increased.

39. In 2011, he was involved in a property deal. Other people were interested in this property deal. One of the interested party’s were the in-laws of [Mr A]. The property owner agreed to sell the property to the applicant’s party and refused the offer of [Mr A]’s in-laws. The property deal was done [in] February 2011. During that time, the applicant was threatened by the in-laws. At that time, [Mr A] was in jail and the Congress Party was in power in the state and national Governments.

40. The applicant was asked by [Mr A] not to be involved in the property deal. The applicant did not listen to him because he thought that [Mr A] would never be able to come out of jail. On 1 December 2013 the Rajasthan Legislative Assembly election was held and the Congress Party lost to the BJP. The applicant noted that the Congress Party also lost in the national Government.

41. After the property deal, the applicant was attacked by [Mr A]’s gang members who were affiliated with the BJP. He reported the matter to police, and police apprehended one of the gang members. After that, [Mr A] called the applicant from jail and he threatened to kill him. The applicant detailed who [Mr A] was and claimed he was affiliated with the BJP. The applicant noted that [in] September 2015 [Mr A] and two of his supporters were returning from a court hearing to prison but escaped. The applicant said that this was done with connivance.

42. When [Mr A] escaped, the applicant realised that his life was in real danger. He went to the police station to seek personal protection. He was told that it takes time and is very expensive. The police told the applicant they were looking for [Mr A] as well.

43. The following night, the applicant moved to the Nagaland state. He stayed in his friend’s house for two weeks. His friend received a phone call from [Mr A] and was asked about the applicant. The same day, the applicant moved to the Assam state and lived in a motel. The applicant wrote that he had an option to go to Nepal but Nepal was too close. [Mr A] had people and members everywhere.

44. The applicant wrote that since [Mr A] escaped from police custody, he could not sleep and was worried. He was so worried about his life that he became mental. He went to a doctor and asked for medication.

45. His friend helped him get an Australian visitor visa. The applicant knew that [Mr A] could not come to Australia and that his members would not be able to travel to Australia either.

46. The applicant was very depressed and traumatised over his hopeless situation. He continues to have difficulty sleeping at night because of his worries. He sought protection in Australia so he can be free from persecution and oppression.

47. The applicant provided scripts for [medications] to the delegate.

    Relevant oral evidence given to the Tribunal

48. The applicant was asked whether he was living in the family home prior to coming to Australia. The applicant said that he was, but because of the problems he had to run from there. The Tribunal asked the applicant to clarify whether he was living at the family home before he departed India. The applicant said there was no fixed address. He lived in Assam, Nepal and Deli before coming to Australia. The Tribunal asked the applicant where he lived immediately before departing India. The applicant said that he had been tortured and that whatever information he gave in his protection visa application form was correct.

49. The Tribunal asked the applicant how long he lived in Nepal. The applicant said he was not clear, but it was 10 to 15 days. The applicant was asked how long he lived in Deli. The applicant said he could not remember, but it was perhaps 10 or 20 days.

50. The applicant said that it was incorrect that he completed the protection visa application without assistance. His English was not good. A friend of his named [Mr B] helped him fill out the form. He did not know whether [Mr B] was the person’s first or last name. He was not a close friend and just met him. He did not remember how he met [Mr B] due to problems and pressure. He did not remember what was involved in completing the protection visa application form with [Mr B]. When the Tribunal asked the applicant how it could know that the information in the form was true, given that the applicant could not tell the applicant about how he completed the form with [Mr B], the applicant said he did not remember.

51. The applicant was asked about his employment history. He noted his employment as [Occupation 1] for a firm that does work for [a] company. He has been doing that for about four years and obtained this employment after his arrival in Australia.

52. As the applicant had come to Australia on a business visitor visa, the Tribunal was interested to know about his employment in India. The applicant applied for the business visitor visa on the basis that he was a business partner in [Company 2] for three years. A letter had been provided in support of the business visitor visa. The purpose of the visit to Australia was to discuss the sale and inspection of [an equipment]. Included in the application was an invitation letter from [an] Australian business.

53. The Tribunal asked the applicant whether he was a business partner in that company before he came to Australia. The applicant noted his employment with [Company 1] and real estate and said that he had something to do with [Company 2] as well. The Tribunal asked whether he was in partnership with that business and he said he did not remember. The Tribunal asked what he did at [Company 2] and he said he did not remember. The Tribunal asked how long he worked there, and he said he did not remember. The applicant contrasted this with his work as a real estate agent. He said he worked as a real estate agent from 2007 until he moved to Australia. The Tribunal asked the applicant why he could tell the Tribunal about his employment history as a real estate agent but not tell the Tribunal about his employment at [Company 2]. The applicant said he could remember his work as a real estate agent because he did very well in that business and there was a threat in 2011 and he will remember that for his whole life. The applicant told the Tribunal that he worked at [Company 1] from 1998 and continued in that role until he came to Australia but became part time in 2007 when he started as a real estate agent.

1. The applicant said he left India because [in] February 2011 there was a real estate deal that he was involved in. [Mr A]’s in-laws threated him so much that he lost his balance. He noted that [Mr A] is now dead. The Tribunal asked why the applicant did not return to India and he claimed that his life and family are in danger, because [Mr A]’s in-laws and brothers are still there.

2. The Tribunal was curious to find out more about this land deal. The applicant told the Tribunal that it was a big piece of [land], and then told the Tribunal about the pressure he had, and that the Congress Party was in power but when the BJP came to power he was in danger. The Tribunal indicated to the applicant that it was interested in the real estate deal and asked the applicant to tell the Tribunal all about it. The applicant responded that he ‘just did’. The Tribunal asked the applicant to provide more information about the deal, because the Tribunal was interested in the specifics. The applicant responded that it was a huge lot that used to [be used for a certain purpose], and there were threats to him to sell for a lower price, but he made the deal. The Tribunal asked the applicant again about the property deal and wanted to know more. The applicant said that if the Tribunal wanted to know more, he could get some documents and send them to the Tribunal.

3. The Tribunal indicated that it wanted to know about the specifics of the deal from the applicant. The applicant said that he could not tell the Tribunal anything more, that he was mentally disturbed, and noted that he had sent the Tribunal the report about his medical conditions.

4. The Tribunal asked the applicant whether he had any personal dealings with [Mr A], or whether the applicant’s dealings were only with [Mr A]’s family. The applicant noted that the real estate deal with the biggest deal in his life and []Mr A] was in jail. [Mr A] threatened the applicant through his in-law because of the deal. Enmity started from that point. The Tribunal sought to clarify the applicant’s evidence and asked if it was correct that the applicant did not have any personal dealings with [Mr A]. The applicant said that [Mr A] was in jail and did not do anything himself to the applicant. [Mr A] went through other people and relatives.

5. The Tribunal asked whether there was any reason, other than the applicant’s fear of [Mr A]’s family in connection with this deal, that the applicant feared returning to India. The applicant said that [Mr A]’s relatives live in [City 1] and still have power and were working. The applicant clarified that they were continuing to be involved in criminal enterprises.

6. The Tribunal asked the applicant whether, apart from raising his family and working, he was involved in any other activities in India. The applicant said that he was not. He achieved his educational qualification and started working.

7. The Tribunal asked the applicant whether there was anything else that he wished to tell the Tribunal and he said there was not. He apologised if he appeared aggressive and said it as a side effect of his medication. For the sake of completeness, the Tribunal did not find the applicant aggressive at all. The applicant gave his evidence is a calm and measured tone.

   Certificate and notification regarding the disclosure of certain information under s.438 of the Act

8. A delegate had certified that paragraph 438(1)(a) of the Act applied to the information contained in folios 64-67 of the Department file. The certificate claimed that the disclosure of the information would be contrary to the public interest because the folios contained information relating to an internal working document and business affairs. The certificate noted that the Tribunal’s use of this information is subject to the provisions of ss.438(3) and (4) of the Act.

9. The Tribunal advised the applicant about the existence of the certificate and asked him whether he wished he wanted to make a submission about whether the certificate was valid or invalid, or whether he wished to make no submission about the validity of the certificate. The applicant said he did not wish to make a submission.

10. As the Tribunal noted to the applicant, the Tribunal’s view was that the certificate was invalid and that the material was capable of being disclosed. To that end, the material was like everything else on the file, and if the Tribunal was concerned about the information in folios 64-67 it would put its concerns to the applicant for comment. The Tribunal is not satisfied that the certificate is a valid certificate because ‘internal working documents and business affairs’ is an insufficient basis for a claim of public interest immunity.[1] The certificate does not identify the harm that would be caused by the disclosure of the information. Consequently, the material is disclosable.

    [1] MZAFZ v MIBP [2016] FCA 1081: The Tribunal had erred in treating a non-disclosure certificate as valid where the only reasons cited in the certificate as contrary to the public interest were ‘internal working documents’. The court held this had never been a sufficient basis for public interest immunity whether at common law or under statute and did not identify the harm that could be done to an agency by their disclosure. At best, the words ‘internal working documents’ disclosed a reason that could form part of the basis for a claim, but not the basis of the claim itself

    FINDINGS AND REASONS

11. The issue in this case is whether the applicant is a refugee, or a person who meets the criteria for complementary protection, or a person who is a member of the family unit as a such a person.

12. The Tribunal finds that the applicant is a citizen of India based on the production of the applicant’s passport and the fact that the applicant does not claim to hold any other citizenship. The Tribunal accepts that the applicant is [an age]-year-old man from [City 1] in the Rajasthan state and that he has a wife and [children] there. For the purpose of the protection visa application, the country of reference is India.

13. The Tribunal has had regard to [an] online article of [June] 2017 titled ‘[deleted]’ by [deleted]. This article provided the Tribunal with some helpful information about [Mr A]. The Tribunal acknowledges that the applicant told the Tribunal that [Mr A] was no longer alive.

    [Details deleted].

14. The Tribunal accepts that there was a person named [Mr A] who was of serious concerns to the Indian authorities. However, the Tribunal has real concerns about the truth of the applicant’s protection claims and ultimately concludes that the applicant is not a credible witness concerning his claimed past political activity in India, his involvement in a land deal, and any of the claimed enmity that the applicant declares arose from that deal. The Tribunal is satisfied that the applicant manufactured his protection claims in the hope of achieving a favourable migration outcome, namely permanent migration to Australia.

15. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Demonstrated dishonesty in application for business visitor visa and repeated dishonesty to the Tribunal about this fact

16. The material in folios 64 to 67 of the Department file concerned case notes made by an officer of the Department. Relevant to the Tribunal’s assessment of the applicant’s truthfulness, the following notes were made:

17. The applicant had been contacted by the Department when it was assessing his business skilled visa and he had confirmed his name and date of birth, explained the purpose of his travel, and details about his business.

18. Later, the Department had contacted the owner of [Company 2]. [Mr C] told the Department that this business was a proprietorship firm (that is, owned by [Mr C]), and it had no association with any person by the applicant’s name.

19. The Tribunal notes that in the delegate interview, the applicant was not given the opportunity to confirm whether he did work for [Company 2] as claimed in the business visitor visa application. The delegate proceeded with the interview on the basis that the applicant had put ‘false documents’ in his business visitor visa. The applicant said that he was not sure what his friend had filed in the business visitor visa application. The delegate put to the applicant that he told lies to get the business visitor visa and asked whether the applicant was telling lies to get the protection visa. The applicant noted his stress and said that he was not sure what his friend did for him. He did not know how this was put together.

20. The applicant was clearly aware that there was a view that the documents that were put in the business visitor visa were false. The delegate made that very plain. The applicant did not claim to have worked for [Company 2] to the delegate when the suggestion was put that false documents were submitted. Indeed, the applicant shifted the blame to his friend. The Tribunal notes that in the protection visa application form, the applicant did not claim that he had worked for [Company 2].

21. The Tribunal wanted to know whether the applicant was in fact claiming that he worked for [Company 2]. The applicant told the Tribunal that he did have associations with this company, but could not tell the Tribunal about whether he was in a business partnership with that company, how long he worked there, when he worked there, or what he did for the company. This suggested to the Tribunal that the applicant did not in fact work there. It was curious to the Tribunal that the applicant did not say to the Tribunal that he did not work there, or that the claim that he worked at [Company 2] was made in order to secure the business skilled visa. He was clearly aware from the delegate interview that this was an issue. The Tribunal was very concerned by the fact the applicant repeated his claimed involvement with [Company 2] in his oral evidence to the Tribunal. The Tribunal suspects that the applicant believed that the Tribunal had not listened to the delegate interview or was otherwise unaware that a false employment (and indeed invitation letter) had been submitted to obtain the business visitor visa.

22. The Tribunal utilised s.424AA and raised its concern about the information that the applicant was never employed with [Company 2] and that his claimed employment with that company was not true. The fact that the applicant gave evasive answers to the Tribunal when it asked about his employment with that organisation, coupled with the fact that the delegate discussed that the employment was fraudulent, suggested to the Tribunal that the applicant was dishonest in his approach to migration matters and suggested that the applicant was not a credible witness. In response to the Tribunal’s concern, the applicant responded that after arriving in Australia, his medical condition was not very good. He said to the Tribunal that if it wanted further documentation, then the applicant could arrange for this.

23. The Tribunal was not persuaded by the applicant’s response. It did not address the Tribunal’s concern that the applicant had falsely claimed to work at [Company 2] when he applied for the business visitor visa, nor did it explain why the applicant persisted in this claim in his oral evidence to the Tribunal, albeit with evasive answers of whether he was in partnership, when he worked there, how long he worked there, or what he did there. The Tribunal is satisfied that the fact the applicant falsely claimed in his business skilled visa application to work for a company, and the repetition of this claim in his oral evidence to the Tribunal, demonstrate that the applicant has a flexible approach to the truth and is willing to give false evidence if he believes that it will result in a favourable outcome to him. The Tribunal does not accept that the medical conditions that the applicant lives with can explain his evidence about his employment with [Company 2].

    Vague details about the property deal in India

24. The applicant claimed that the 2011 property deal was the ‘biggest deal’ he had ever completed. In his oral evidence to the Tribunal, he repeated the specifics of the date of the deal consistent with his written statement, but apart from telling the Tribunal about the fact that the deal related to a big lot of land [and] that the land was used for [a certain purpose], he could provide no other meaningful detail, despite the Tribunal asking on a number of occasions for more information.

25. It would be reasonable to expect the applicant to be able to talk about what was involved in the land deal, the period of negotiations, how the applicant was approached to conduct the transaction, who the parties were, what the sale price was, and whether there was any negotiation about the price. The Tribunal got none of the level of detail that could be expected to be provided by the applicant who was involved in this deal.

26. The Tribunal adopted the s.424AA procedure and raised with the applicant the fact that the lack of detail in the applicant’s oral evidence about this land deal suggested to the Tribunal that he had in fact not been involved in any such land deal. That is to say, he had fabricated his involvement in the land deal to provide a genesis of the claimed enmity between him and [Mr A] and/or [Mr A]’s family and supporters. In response, the applicant said that the transaction was a very big deal and involved a lot of money. If the Tribunal required proof, he would be able to get some documents from India.

27. The Tribunal was not persuaded by the applicant’s response. As noted by the Tribunal to the applicant while he was being asked questions about the land deal, the Tribunal wanted to hear from the applicant about the deal. The Tribunal does not accept that the passage of time or the applicant’s medical conditions would result in the applicant being able to tell the Tribunal nothing more than he was an agent who sold a big plot of land [between] two parties for a lot of money. The Tribunal is satisfied that the vague oral evidence is due to the fact that the applicant was not involved in any such land deal and had fabricated this event to provide a basis for the events that lead to the claimed threats.

    Inconsistent evidence about threat from [Mr A]

28. The applicant’s written statement makes clear that after he reported to police that he was attacked by [Mr A]’s gang members who were affiliated with the BJP, [Mr A] called the applicant from jail and threatened to kill him. Given that the applicant received this threat from [Mr A] himself, the subsequent escape of [Mr A] from custody made the applicant ‘realise that his life was in real danger’. This was vastly different to the applicant’s oral evidence to the Tribunal.

29. To the Tribunal, the applicant said he had never been personally threatened by [Mr A]. The threats came from [Mr A]’s family. The applicant told the Tribunal that [Mr A] did not do anything himself.

30. To the Tribunal’s way of thinking, this inconsistent evidence suggested that the applicant was not being truthful about claimed threats he received from [Mr A] from jail. It was incredulous for the Tribunal to believe that being threatened with death over the telephone from a high profile gangster who was able to call the applicant from jail would be easily forgotten by the applicant, even with the passage of time or the applicant’s medical conditions.

31. The Tribunal adopted the s.424AA procedure and raised this inconsistent evidence with the applicant. In the Tribunal’s view, the inconsistency suggested that the applicant was not a witness of truth and was fabricating his claims. In response, the applicant said that he was not fabricating his claims and was not able to remember things clearly. He again said he could get further documents from India. The Tribunal is not persuaded by the applicant’s response. The Tribunal does not accept that the applicant would forget being personally threatened by [Mr A]. The Tribunal is satisfied that the applicant told the Tribunal that he did not receive a personal threat from [Mr A] because he forgot that such a claim was made in his protection visa application form, and that the reason he forgot that such a claim had been made in the protection visa application form was because no such event had occurred. The claim was manufactured.

    Vague and inconsistent evidence about past residential history in India

32. The protection visa application form makes the applicant’s residential history in India clear. He lived in the family home in the Rajasthan state until September 2015. He then went to live in the Nagaland state in September 2015 for a short period of time. He then relocated to the Assam state in September 2015 until he departed India for Australia. The residential history correlated to the chronology of events in the applicant’s written protection visa application form. He remained in the family home until [Mr A] escaped from police in September 2015. He went to live in the Nagaland state because he feared for his safety. He left the Nagaland state in September 2015 when the friend he was staying with received a telephone call from [Mr A] asking where the applicant was. This caused the applicant to relocate to the Assam state in September 2015. These were the only three places where the applicant lived in India. The protection visa application form did not disclose that the applicant had travelled to Nepal. In fact, his statement specifically addressed the fact that he did not relocate to Nepal.

33. This evidence was contrasted to the applicant’s oral evidence. When the applicant was asked by the Tribunal whether he was living in the family home immediately before coming to Australia, he said he was but had to run from there because of the problems. When the Tribunal sought further clarification from the applicant about where he lived immediately prior to coming to Australia, he discussed not having a fixed address and living in the Assam state, with a friend in Nepal and with a friend in Deli. The Tribunal found the applicant’s oral evidence about where he lived in Nepal confused and rambling. Asking something as basic as where the applicant lived prior to departing India should have been an easy question for the applicant to answer, given he claimed in his protection visa application to have only relocated from his family home twice. The fact that he could give no meaningful detail about when he lived in Deli nor Nepal and was unclear in his oral evidence about where he lived immediately prior to departing India suggested to the Tribunal that he was not being truthful about the claim that he relocated from his family home in the Rajasthan state  to other parts of India (or Nepal as claimed in the oral evidence). The Tribunal viewed the applicant’s oral evidence as demonstrating that he had a flexible approach to the truth and was fabricating his evidence.

34. The Tribunal raised its concern with the applicant through the s.424AA procedure. The Tribunal noted the applicant’s vague oral evidence about where and when he lived at certain places, and the fact that his protection visa application form did not declare that he lived in Deli for a time, or that he lived in Nepal for a time. The Tribunal put to the applicant that this appeared to the Tribunal that the applicant was not being true in his evidence. The applicant responded had had not given incorrect evidence and he did not remember the addresses. He said if required, he could get documents from India.

35. The Tribunal has considered the applicant’s response but is not persuaded by it. It is incredulous that the applicant would not be able to give oral evidence consistent with his written application form about his past residential history, even with the passage of time and his medical conditions. The Tribunal is satisfied that the vague oral evidence, and inconsistency regarding whether the applicant lived in Deli and Nepal are due to the fact that the applicant never relocated to another part of India or relocated to Nepal. This suggests to the Tribunal that the applicant did not relocate because the claimed threats from the land deal are not true.

    Applicant’s involvement with the Indian National Congress

1. The applicant’s protection visa application form does not explicitly say that he would be at risk because of his political opinion and support of the Congress Party. However, his claim was that he was threatened and harmed by people associated with the BJP. If it was true that he had been threatened and harmed as claimed, his membership and support of the Congress would be an added dimension to the adverse interest that [Mr A], (who was involved or supported by the BJP), his family and supporters had in the applicant. The fact that the applicant included the details of his involvement with the Congress Party Congress in his protection visa application form suggested that the applicant saw this involvement as relevant to his claims.

2. It was therefore very curious to the Tribunal that the applicant did not state in his oral evidence to the Tribunal that he was involved in the Congress Party. The Tribunal asked the applicant whether he had been involved in any activates other than raising a family and working while he was in India. The applicant noted his educational achievement and the fact that he had been working from 1998 and said that he had not done anything else. This evidence was very different to that contained in his protection visa application form, where he noted his involvement with the Congress Party.

3. This inconsistent evidence suggested to the Tribunal that the applicant was not a witness of truth about his claimed past involvement with the Congress Party, and that he had a flexible approach to the truth. The Tribunal adopted the s.424AA procedure and raised with the applicant its concern about the fact that he did not claim in his oral evidence that he was involved in political activity with the Congress Party. The Tribunal put to the applicant that this suggested that the applicant was not a witness of truth.

4. In response, the applicant said that he did refer to the Congress Party in his evidence. That is true, as the applicant did state that the Congress Party was in power in his home state until it lost the election. However, this did not address the concern about why the applicant would tell the Tribunal that he was not involved in any activity in India other than raising a family and working. The Tribunal is satisfied that the reason the applicant did not tell the Tribunal about his involvement with the Congress Party was because he was never involved with that organisation or engaged in any political activity as he claimed in his protection visa application form. The Tribunal is satisfied that the applicant fabricated this evidence to assist him in his protection visa claims.

   Vague evidence about the completion of the protection visa application form

5. The Tribunal found the applicant to be deliberately vague about how he completed the protection visa application form. All he could tell the Tribunal was that a person named [Mr B] helped him. He could not tell the Tribunal whether this was the person’s first or last name, how he met [Mr B], or how he completed the form with [Mr B]. It was curious to the Tribunal that the protection visa application form would not note the assistance that [Mr B] provided the applicant given that the forms require this declaration. Given that the applicant could not tell the Tribunal about how the protection visa application form was completed, and there was no declaration of assistance, this suggested to the Tribunal that the applicant knew that the claims raised in the protection visa application form were false. To the Tribunal’s way of thinking, it appeared that these claims had been manufactured and fed to the applicant, who was struggling to remember the details of the claims, and that the reason no assistance was declared was because the applicant and the author of the claims knew that they were putting forward claims that had been manufactured.

6. The Tribunal adopted the s.424AA procedure and raised its concern about the fact the applicant could not tell the Tribunal about how the form was completed. This suggested to the Tribunal that the applicant knew the claims were false. In response, the applicant said that he had been in Australia for four years and that he did not remember anything. The Tribunal has considered this response but is not persuaded by it. The Tribunal fails to understand how the passage of time or the applicant’s medical conditions could result in the applicant being able to tell the Tribunal nothing more than a person named [Mr B] helped him. The Tribunal is satisfied that the evidence about the production of the protection visa application form was vague because the applicant did not complete the form himself and was fed the claims by another person who the applicant did not wish to identify. The Tribunal is satisfied that the applicant knew that false claims were being put forward on his behalf.

   Failure to produce any documents to support claims

7. The applicant was advised in the protection visa application form he lodged in December 2015 that he must, where possible, provide documentation to support his claims.  The applicant participated in an interview with the delegate in January 2017 where there was a discussion about the applicant providing documents to support his claims. In fact, the delegate provided the applicant seven days to provide documentation before the delegate was to make a decision. On 17 February 2017 when the Tribunal acknowledged the application for review by letter, the letter advised the applicant that any documents he wished to rely upon should be provided to the Tribunal as soon as possible. On 17 July 2019 when the Tribunal again wrote to the applicant, the letter again reminded the applicant that any documentation he wished to rely upon should be provided to the Tribunal as soon as possible. In the hearing invitation of 21 May 2020, the Tribunal again advised the applicant that any evidence he wished to rely upon would need to be provided to the Tribunal seven days prior to the hearing. Apart from the medical scripts provided to the delegate, and the letter from the applicant’s doctor, the applicant has never provided any documentation to corroborate his claims, despite him being advised to do so on a number of occasions over the past four years.

8. Given the other concerns that the Tribunal had about the truthfulness of the applicant’s claims, the Tribunal suspected that the reason no documentation had been provided, such as copies of the land deal documentation, copies of reports made to police, or any documentation to corroborate that the applicant had in fact lived with a friend in the Nagaland state, or receipts to demonstrate that the applicant lived in a motel in the Assam state from September 2015 until his departure to Australia, was because no such documentation was available, and that the reason no such documentation was available was because the applicant’s claims were fabricated.

9. The Tribunal put its concerns to the applicant under s.424AA of the Act and noted the various requests for documentation to be provided over the course of four years. The Tribunal put to the applicant that the failure to provide documentation in response to the various requests indicated to the Tribunal that his claims were not true. The applicant responded to the Tribunal’s concern by stating that he was going through medical issues and not in a sane state to get the documents earlier. He told the Tribunal that if the Tribunal gave him further time, he would be able to source documents.

10. The Tribunal was not persuaded by the applicant’s explanation for the failure to provide any documentation to corroborate his claims. While the Tribunal accepts the applicant suffers from the medical conditions as outlined in the letter from the [Medical] Centre, the Tribunal is not satisfied that this has meant that the applicant was incapacitated from obtaining documentation that would help him evidence his claims. The applicant has been able to work as [Occupation 1] in Australia for the past four years despite his medical conditions and is in regular contact with his family according to his protection visa application form. The Tribunal indicated to the applicant that it would consider any documents that he provided to the Tribunal before making its decision but indicated to the applicant that it proposed to make a decision in his review application shortly.

11. However, as no documentation had been produced by the applicant in either his protection visa application form, at the delegate interview, within seven days of the delegate interview as requested, or to the Tribunal despite various requests, the Tribunal is satisfied that if documentation related to the land deal, complaints to police, or documents related to the applicant living in the Nagaland and Assam states were now produced from the applicant, they would not be genuine due to the delay in their production, and the other concerns that the Tribunal has about the applicant’s truthfulness as a witness.

    CONCLUSION

100.   When considering the evidence as a whole, the Tribunal is not satisfied that the applicant was a member of the Indian National Congress, that he was ever threatened by members of the BJP due to donation requests, that he was involved in a property deal that resulted in any enmity or threats from [Mr A]’s family, that the applicant was attacked by [Mr A]’s gang members who were affiliated with the BJP, that the applicant reported this attack to the police, that [Mr A] called and threatened the applicant from jail, that the applicant contacted police to seek personal protection after realising that [Mr A] had escaped from police custody, that the applicant relocated within India (or indeed to Nepal) because he feared harm, that the applicant’s friend was contacted by [Mr A] who enquired about the applicant, that the applicant sought medical treatment in India because of the stress related to his experiences in India, that the applicant left India because he feared harm from anyone, or that he failed to return to India because he feared harm upon his return. The Tribunal is satisfied that the applicant is not a witness of truth and manufactured his claims in the hope of achieving a favourable migration outcome.  To the extent that the applicant suffers from the medical conditions as detailed in the [Medical] Centre report, the Tribunal is not satisfied that those conditions, especially anxiety, go to corroborate the applicant’s claims. The Tribunal accepts the applicant suffers anxiety, but is not satisfied that it relates to his claimed experiences in India.

101.   It follows that the Tribunal is not satisfied that the applicant would be of adverse interest to anyone if he returns to India. The Tribunal is not satisfied that the applicant will engage in any political activity with the Congress Party, or any other party, because the Tribunal is not satisfied that the applicant has engaged in any political activity in the past.

Refugee

102.   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).

103.   The Tribunal is not satisfied that there is a real chance of serious harm to the applicant in India due to his race, religion, nationality, membership of a particular social group or political opinion.

Complementary protection

104.   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). For the same reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

105.   The Tribunal is not satisfied that there are substantial grounds for believing that as a reasonably foreseeable consequence of the applicant’s removal from Australia to India, there is a real risk he will suffer significant ham.

Member of the same family unit

106.   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

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

Nathan Goetz
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.

…