1703221 (Refugee)

1703221 (Refugee) [2021] AATA 718 (15 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1703221

COUNTRY OF REFERENCE: India
MEMBER:Mila Foster
DATE:15 February 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 15 February 2021 at 3:17pm
CATCHWORDS
REFUGEE – protection visa – India – political opinion – supporter of Congress Party – opposition to Patidar movement – refused to support Hardik Patel – Patidar Anamat Andolan Samiti (PAAS) – house looted and ransacked – threats to kidnap daughter – Bharatiya Janata Party (BJP) – tortured by Patidar leaders and police – inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 February 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of India and husband and wife, applied for the visas on 22 September 2016. The first named applicant claimed he had been physically harmed and threatened with death in India because he refused to support a movement led by Hardik Patel to improve the position of the Patidar caste and was also attacked by members of the BJP (political party). He claimed he left India to save himself from ‘political goons and the government’ and would be put behind bars by the state government if he returned. The second named applicant did not make separate protection claims of her own and applied for the visa as a family member of the first named applicant. The delegate refused the first named applicant the visa on the basis that he was neither a refugee nor owed complementary protection and hence refused the second named applicant.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, (the Department) and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. DFAT published such a report in relation to India on 17 October 2018. That report was replaced by another report published on 10 December 2020. The current DFAT Report does not raise new issues in the review.
Of particular relevance to the first named applicant’s claims, the DFAT Report states that while the influence of caste has declined over time, caste identity remains in India and a person’s last name usually indicates to what caste a person belongs.[1] The Indian constitution contains provisions relating to ‘scheduled castes’ (SCs), tribal and indigenous groups (STs), and ‘Other Backward Classes’ (OBC) which are aimed at addressing the entrenched disadvantage faced by certain castes and groups due to the caste system.[2] The provisions provide benefits in relation to public employment and access to higher education to those groups.[3] Reservation and quota policies have been unpopular with upper castes and dominant groups including Patidars, also called Patels, who have sought removal of quotas for SCs and STs, sought OBC status and/or engaged in protests over the issue.[4]
[1] [3.145].
[2] [3.148].
[3] Ibid.
[4] [3.149].
CONSIDERATION OF CLAIMS AND EVIDENCE
For reasons given further below, the Tribunal finds that the first named applicant was not a credible witness and hence does not accept his protection claims. The Tribunal has thus concluded that the decision under review should be affirmed.
Outline of Evidence
The evidence before the Tribunal includes the following:
a.The Department file containing the applicants’ protection visa application.[5]
b.A written record of oral evidence the first named applicant gave at an interview with the delegate on 1 February 2017.[6]
c.Oral evidence the first named applicant gave at a Tribunal hearing on 4 December 2020.
d.Information from sources consulted by the Tribunal about the Patidars in Gujarat (the applicants home state in India), Hardik Patel and his movement.[7] That information indicates that Hardik Patel was a student who led a movement and organisation in Gujarat to grant Patidars OBC status.
Protection visa application
[5] [File number].
[6] [File number], ff.176-180.
[7] BBC News, ‘Hardik Patel: Face of Gujarat caste protests’, 26 August 2015, url; The Indian Express, ‘Gujarat protests: Who are the Patidars, and why are they angry?’, 27 August 2015, url; The Indian Express, ‘Explained: Hardik Patel’s journey from Patidar youth leader to Gujarat Congress working president’, 14 July 2020, url.
The protection visa application made by the applicants on 22 September 2016 consists of a completed protection visa application form, an undated and unsigned written statement made by the first named applicant, and certified copies of the applicants’ Indian passports. An earlier protection visa application made by the applicants on 24 June 2016 was deemed invalid.[8]
[8] [File number], f.71.
According to information in the protection visa application form, the first and second named applicants are nationals of India and no other country. They are from Gandhinagar in the Indian state of Gujarat. They belong to the Patidar ethnic group. The first named applicant completed post-secondary education [training] in April 2001 and [worked] in India as [an Occupation 1] for [Employer 1] from June 2010 until April 2016. He could speak, read and write Hindi and Gujarati, and read English. The second named applicant completed [number] years of education in India in April 2004. The applicants married in 2010. They arrived in Australia [in] May 2016 on transit visas. The applicants listed their respective parents in India as family members. They listed no other family members in the form. (In the invalid protection visa application, they had also listed a [daughter] who they said was living in India).[9]
[9] [File number], ff. 62, 37.
In relation to his reasons for seeking protection the first named applicant stated the following on the form:
a.He left India to save himself from political goons and the government.
b.If he returned to India he would definitely be put behind bars by the state government. He would be harmed if he returned because he is viewed as a challenge by the government.
c.He had experienced harm in India; he had been badly tortured by Patidar leaders.
d.He sought help from the police but instead of helping them, they tortured him.
e.He did not move to another part of India to seek safety because he was cooperating with the police at home but when the torture went beyond the limit of tolerance he ran away from home.
f.The authorities in India would not protect him if he returned because they are harassing him and leading the people of the agitation who are also harassing him.
g.He cannot relocate within India until a new political party comes into power and assures him of protection.
The first named applicant said the following in his written statement:
a.He was a businessman in India. He was involved and always desired to have a significant presence in his local and business community.
b.He was a local committee leader. He liked the ideology of the Congress Party. He always felt that the Gujarat government did not govern for the interest of all people.
c.Since the beginning of the year, youth belonging to Gujarat’s economically and politically influential Patidar or Patel community were agitating for OBC status which would give them quotas in college admission and government jobs.
d.The Patidar Anamat Andolan Samiti (PAAS) held a large rally in Gandhinagar. When their leader, a 21-year-old businessman named Hardik Patel, asked him for a donation and the support if his committee, he refused to support Hardik Patel or Hardik Patel’s movement.
e.He did not believe the Patel community had suffered as a result of reservations for other communities. He resigned from the committee after an internal split over support for and against the Patidar movement for OBC status.
f.He had to resign from the committee after he was threatened. He was under physical and verbal attack from Patidar leaders. Despite resigning he was of adverse interest to the PAAS. They looted and ransacked his house and threatened to kill him because he was against it and raised concerns about social issues arising from the movement. He was threatened with death if he continued to be against the movement and was informed that further attacks against him and his property would continue unabated.
g.The continued violence and attacks prompted them to leave India. He could not rely on state protection because taking action against them could hurt the image of the Chief Minister just before local elections.
h.The BJP took advantage of the situation and asked its members to attack him. He worked very hard for Congress Party candidates in the election. They wanted to kill him and asked a local gang to take advantage of the situation and kill him. They threatened to kidnap his daughter.
Both passports contain what appear to be visas issued to the applicant by the Consulate General of [Country 1] in Mumbai [in] December 2015.[10]
Interview with delegate
[10] [File number], ff.47,81.
Delegate interviews with protection visa applicants are usually audio-recorded. According to the delegate’s’ decision record, the recording device used to record the delegate’s interview with the first named applicant failed. The delegate’s written record of the interview, which was conducted using a Hindi interpreter, contains the following information.
Noting that the first named applicant had claimed he was a businessman, the delegate asked what kind of business the first named applicant had had. The first named applicant said he bought and sold [Product 1] until 2013. Asked when he was a businessman, the first named applicant said it was around 2008, while he was [studying], he sold [Product 1] part-time.
The first named applicant said he was a businessman and leader of the local community. Asked what local community he was a leader of, the first named applicant said he was a part of the local committee of the Congress Party. Asked when he joined he replied, in 2014. He said he became a leader in 2014.
Asked what he meant by the claim that Hardik Patel approached “our committee’’, the first named applicant said Hardik said to join the BJP and he refused and they threatened to kill him. Asked if they did anything else, the first named applicant replied that they threatened to kill him for refusing to join the BJP. Asked if there was any other reason Hardik Patel threatened him, the first named applicant replied that there wasn’t. The delegate noted that in his written statement the first named applicant said that Hardik Patel threatened his committee because he wanted support and money for the PAAS. Asked if he was harassed by PAAS to join and donate, the first named applicant replied that they said ‘come and we will help you’.
Asked what sort of things Hardik Patel did, the first named applicant replied that they said they would kill him and kidnap his daughter. They said that by phone, he changed his phone number and the calls stopped. In Australia, his father told him that his father had received two or three calls threatening him and threatening to kidnap his daughter. Asked his daughter’s date of birth later in the interview, the first named applicant said it was [date].
The delegate put to the first named applicant that if the applicants thought that their daughter was really at risk, one of them would return to India. The first named applicant responded that his child was safe with his parents but it was too dangerous for them to go back.
Asked whether anything had happened apart from the threats over the phone, the first named applicant said ‘he’ had sent threats through to him from other people; once several people on the street slapped him and tore his shirt.
Asked whether he went to the police about those incidents, the first named applicant replied that he went to the police but they don’t listen.
The delegate asked whether his home was looted and ransacked, the first named applicant replied that it was not. The delegate noted that was a claim he had made in his written application. The first named applicant did not respond.
The delegate put to the first named applicant that Hardik Patel was not popular with the government of Gujarat and questioned why then the authorities would not protect the first named applicant from Hardik Patel. The first named applicant responded that he went to the police two or three times. The first named applicant stated that the authorities would not protect him because they are corrupt.
The delegate put to the first named applicant that she was of the opinion that he could safely relocate within India given he was young, trained as [an Occupation 1], could speak two of the major languages of India and could read English. The first named applicant responded that his father had told him that it was really dangerous with Hardik Patel around so he could not go back. He could not relocate to another part of India because he liked his place. He said he could not go back until the problem settled. He said the BJP could find him anywhere and kill him.
The delegate put to the first named applicant that his written statement appeared to have been taken from other applicants’ statements,[11] he contradicted the statement and his responses were frequently not credible. The first named applicant replied that everything he had said was true.
Pre-hearing documentary evidence submitted on review
[11] There are no details of the other applicants or their statements in the delegate’s interview record or the Department file.
On 11 November 2021, the first named applicant submitted screenshots of two documents which he said he would be relying upon at the Tribunal hearing.
He referred to one of the documents as a ‘Hospital Discharge letter’. The document itself is titled ‘certificate’. It is dated 9 November 2020 and is signed by Dr [A] who is said to be a Family Physician and Surgeon from Gandhinagar. The certificate states:
This is to certify that [applicant name] of from 12/12/2015 to 23/12/2015 to were injured due to blows at out hospital. His treatment took place in our hospital.
The first named applicant referred to the second document as a ‘Community Certificate’. The document itself is titled ‘certificate’ and is written on the letterhead of [Foundation 1]. It is dated 2 November 2020 and signed by [Mr B], Campus Director. The certificate states:
[The applicant] Provides services as leader in the necessary work related to [Foundation 1] Campus and is always ready for any kind of work of the society.
We found him honest, dedicated, hardworking and well behaved during his 5 years working period.
Tribunal hearing
On 6 November 2020, in response to being informed by the Tribunal that a hearing for the applicants was being scheduled on 4 December 2020, the first named applicant advised the Tribunal that he was willing to attend a hearing on that day, there would be no witnesses, and he would require a Gujarati interpreter. He also advised that the applicants had had a daughter [recently]. In response to their subsequent hearing invitation, the first named applicant confirmed that he would attend the hearing and advised that the second named applicant would not attend.
On 1 December 2020 the first named applicant requested that the hearing be adjourned until January 2021. He said his daughter was ‘seek’ and he had to take care of her by which the Tribunal understood that the first named applicant meant his daughter was sick. The applicants were informed that the request for a postponement had been refused because no medical certificate relating to their daughter had been provided and there was no explanation as to why the second named applicant could not take care of their daughter given she did not intend to attend the hearing.
The first named applicant appeared at the Tribunal at the scheduled time and date. He presented his daughter’s NSW birth certificate and the applicants’ Indian passports. With the assistance of a Gujarati speaking interpreter, the first named applicant gave oral evidence and presented arguments about the following matters and issues:
a.The [Country 2] and [Country 1] visas issued to the applicants.
b.His family members in India including the daughter he referred to in his written statement.
c.His employment in India.
d.Hardik Patel and the Patidar movement in Gujarat.
e.His involvement with the Congress Party.
f.Harm he had experienced which led him to leave India.
g.His personal contacts in Australia.
h.Threats made against him following his arrival in Australia.
i.The harm he feared he would face if he returned to India.
j.The Hospital Discharge Letter and Community Certificate.
k.Issues with his claims and evidence.

The first named applicant claimed that he feared he would be killed if he returned to India because Hardik Patel had been making threats to kill him if he returned to India. The first named applicant claimed those threats began about three months after he arrived in Australia and had occurred approximately every three to five months. He said the threats were communicated to the applicant’s brother in India. Further details of the oral evidence the first named applicant gave at the hearing is referred to in the findings below.
At the end of the hearing the first named applicant undertook to send to the Tribunal evidence, which he thought he had at home, of the [Country 2] visas he claimed the applicants were granted prior to their arrival in Australia.
Post-hearing evidence
A few days after the hearing the first named applicant submitted evidence of the transit visas the applicants had been issued to enter Australia.
Findings on claims and evidence
Country of reference
The applicants claimed in their protection visa application that they were nationals of India by birth and were not nationals of any other country. Their Indian passports state that they were born in India and are nationals of India. On that basis and in the absence of any evidence to the contrary, the Tribunal finds that the applicants are nationals of India. India is thus the receiving country for the purposes of assessing the protection claims made by and on behalf of the applicants.
The first named applicant’s credibility
Numerous inconsistencies and issues with the first named applicant’s written and oral claims and evidence raise significant doubts about his credibility and the credibility of his claims.
[Country 2] visas At the beginning of the hearing the Tribunal noted that the applicants entered Australia using transit visas which suggested that they had intended to travel on to another country. The first named applicant stated that the transit visas were obtained for the purpose of travelling to [Country 2] because the applicants had been granted [Country 2] protection visas. Asked why then he had stated on the protection visa application form that he had not sought protection in a country other than Australia,[12] the first named applicant replied that he did not know. Asked again whether he could offer an explanation, the first named applicant said he could not recall and then indicated he did not know if it was a protection visa. Noting that he had initially stated that he had a protection visa for [Country 2], the first named applicant apologised and said his daughter was not well, he was going through a tough time, and he could not recall much because he was stressed but he could recall that he had to go to [Country 2] and had a visa for Australia. There is no medical evidence before the Tribunal in relation to the first named applicant’s daughter. The first named applicant did not seem affected by stress at that point or any time during the hearing. On the contrary, the first named applicant appeared quite at ease during the hearing. The Tribunal does not accept that the first named applicant’s ability to give evidence and present arguments at the hearing was adversely impacted by stress. It seemed instead that when confronted with an inconsistency between his oral evidence and information in the protection visa application form, that the first named applicant sought to change his oral evidence.
[12] Response to Q74, Part C.
Contacts in Australia The first named applicant stated at the hearing that despite having the visa for [Country 2] he remained in Australia because his cousins here advised him not to go to [Country 2], that it would be better for him here. The Tribunal put to the first named applicant that he had indicated on the protection visa application form that he did not have any contacts in Australia. The first named applicant then seemed to change the evidence he had given a moment before and stated that the friend he was staying with in Australia was not a cousin but a friend. The Tribunal noted that he had responded ‘no’ to a question on the firm which asked whether he had personal contacts in Australia and that a personal contact may include friends, family members and acquaintances. The first named applicant responded that he did not know because he did not have relatives in Australia and called his friends his cousins. Given the question specifically refers to friends, the first named applicant’s response does not explain why he answered ‘no’ to the question if he had friends who advised him to stay in Australia rather than go to [Country 2] and with whom he stayed.
Employment Asked by the Tribunal what work he did in India, the first named applicant replied that he did [Occupation 1] in a [business] named [Employer 1]. Asked why he said in his written statement he was a businessman, the first named applicant replied that he was (a businessman) and the job (at [Employer 1]) was part-time. The Tribunal questioned why he had not mentioned being a businessman in the protection visa application form, only referred to being [an Occupation 1] in the form and only mentioned being a businessman in his written statement. The first named applicant evidence about this was unforthcoming and contradictory. First, he stated that he would work one or two days in a week at [Employer 1] which did not explain why he did not mention being a businessman in the form or why he stated he was a businessman in his written statement. Then he said he had his own [Occupation 1] business. When the Tribunal noted that he told the delegate his business was buying and selling [Product 1], he said he did that as well but also had an [Occupation 1] business. If the first named applicant’s employment in India consisted of working as [an Occupation 1] for [Employer 1] and two businesses, then the Tribunal expects that would have been reflected in the employment history he provided on the protection visa application form.[13] If the first named applicant was a businessman in India and had two businesses, the Tribunal expects he would have referred to both when the delegate and the Tribunal asked what kind of business he had.
[13] Response to Q84, Part C.
Daughter Despite claiming in his written statement that threats had been made in India to kidnap his daughter (a claim he repeated at the interview), the birth certificate he presented at the hearing for his daughter born in Australia states that there are no other children of the applicants’ relationship. Asked about this apparent inconsistency the first named applicant stated that the girl he had referred to in his written statement was his brother’s daughter. The Tribunal noted that he did not state in his written statement that the girl was his brothers’ daughter. The first named applicant claimed that in his country, his brother’s daughter was his daughter also. The first named applicant seemed to be suggesting that culturally, Indians regard the children of their siblings as their own children. That has not been suggested in any of the other cases the Tribunal has dealt with involving Indian nationals but even if that was the case, the Tribunal does not accept the first named applicant’s explanation because he did not state that he had a brother on the protection visa application form which specifically asks applicants to provide details of their siblings. Asked why he had not listed his siblings in the form, the first named applicant told the Tribunal he could not recall.
Local committee of Congress Party At the hearing the first named applicant stated that he was a member of a local committee of the Congress Party. He said the committee consisted of another 77 members and he was the member for his local area, the Gandhinagar district. Contrary to what he indicated in his written statement, the first named applicant stated that he did not know whether the other committee members supported Hardik Patel and his Patidar movement and the committee did not discuss whether or not to support Hardik Patel’s movement at its meetings. The Tribunal put to the first named applicant that according to his written statement, he resigned from the committee as a result of an internal split over whether to support Hardik Patel’s movement or not. In response the first named applicant responded that he resigned from the committee due to pressure from Hardik Patel and his movement and that he was not aware at the time of the attitudes of others towards Hardik Patel. That does not explain the inconsistency between his written and oral evidence. His written evidence indicates that there was a split within the committee over Hardik Patel and Hardik Patel’s movement while his oral evidence at the hearing was that he was not aware of the opinions of the committee members at all.
Past harm in India The first named applicant stated at the hearing that Hardik Patel’s movement began on 25 August 2015 and that Hardik Patel had approached him for support sometime before that. Asked about the harmed he had experienced in India because he would not support Hardik Patel’s movement, the first named applicant stated that he was threatened two times in India. He said that on the first occasion Hardik Patel approached him personally while he was in his village bazaar, threatened to kidnap him and to not leave him or his family in peace. The first named applicant stated that the second occasion was about 15 or 20 days later. He was driving to work when he was stopped by people sent by Hardik Patel who said it would be better for him and his family if he joined them. That indicates the threats occurred about nine months before the applicants left India. Asked whether he had faced any other harm that made him leave India, the first named applicant said he had not. The Tribunal sought to confirm that there was nothing else which led the first named applicant to leave India. He stated that there was nothing else, he left because of those threats. Asked whether any of his family was subsequently harmed by Hardik Patel or anyone connected to Hardik Patel, the first named applicant replied that they were not. The Tribunal questioned why then the first named applicant left India about nine months after the two threats were made when the threats had not been carried out nor any harm inflicted or him or his family during that time. The first named applicant said that as he was threatened, he thought Hardik Patel would harm him, his family and his brother’s daughter so it was better to leave.
The oral evidence the first named applicant gave at the hearing about past harm in India is not consistent with the claims in his written statement that he was subjected to physical and verbal attack, threatened with death, his house looted and ransacked by Patidar leaders/PAAS, that members of the BJP wanted to kill him and asked a gang to kill him, and that the continued violent attacks led the applicants to leave India. When this was put to the first named applicant, he told the Tribunal that what was in his written statement was correct, his mind was on his baby, and he had told the Tribunal what he could recall. As stated above, the Tribunal does not accept that the first named applicant’s ability to give evidence at the hearing was adversely impacted by stress due to his infant daughter’s health. Further, the Tribunal does not consider it believable that the first named applicant would fail to recall that he was subjected to a number of instances of serious harm involving physical attack, that his house was looted and ransacked, and he received death threats. It is not believable given the Tribunal’s questioning that the only harm the first named applicant could recall experiencing in India were two verbal threats or that those two led the applicants to leave India given they had occurred about nine months before they left.
Police complaints The first named applicant stated at the hearing that he went to the police after to two incidents to complain and asked for protection. He said the police told him not to worry, that they would see to it that no harm was done to him but they did not support him. Asked what he expected the police to do, the first named applicant replied that he did not trust the police to support him. Despite claiming that the police did not support him the first named applicant did not specify how they failed to support him. Further, he made no mention of the claim he made in the protection visa application form that the police tortured him when he sought their help. When this was put to him, he responded that the police said that nothing would happen to him and then added that they said some bad words. Not only was his evidence at the hearing about the police vague, if the first named applicant had regarded what the police said to him as torture then the Tribunal expects he would have stated that he had been tortured or that the police said bad words at the hearing when describing how the police responded to his requests for protection.
Documentary evidence The oral evidence the first named applicant gave at the hearing about the relevance of the documentary evidence he had submitted prior to the hearing was not consistent with the contents of the documents themselves or information obtained by the Tribunal.
Asked the relevance of the Hospital Discharge Letter, the first named applicant told the Tribunal he wanted to show that he had been in hospital for 10 days. He said the threats from Hardik Patel caused his blood pressure to increase and hence required 10 days of hospitalisation. However, there is no mention of high blood pressure in the letter, instead it indicates the first named applicant was treated for injuries due to blows. When this was put to the first named applicant, he responded that the doctor wrote that because his blood pressure was very high and the doctor felt his high blood pressure had been caused by blows. The Tribunal does not accept that explanation. If the first named applicant was hospitalised due to high blood pressure, the Tribunal expects that is what the doctor would have stated in the letter. The Tribunal does not consider it believable that the doctor would instead indicate, without any apparent basis, that the first named applicant had been hospitalised as a result of blows and make no mention of high blood pressure.
Asked the relevance of the Community Certificate from [Foundation 1], the first named applicant stated that it showed he was a member of that committee and that it stated that he was a member of the Congress Party. The Tribunal noted that that the letter did not state that he was the committee member for the Gandhinagar district of the Congress Party as he had claimed and, that according to information the Tribunal had found, the organisation was a social or community group.[14] The first named applicant responded that it was proof he was a member of the Congress Party and the Patidar/Patel movement. The letter does not state that the first named applicant was a member of the Congress Party or even mention that party at all. Further, prior to submitting the letter the first named applicant had not claimed it have been a member of [Foundation 1] or any other Patidar organisation. Neither the letter nor the information found by the Tribunal indicates that the organisation supported the granting of OBC status to have Patidars, and the first named applicant had himself stated that he did not support that.
[14] [Source deleted].
Considered collectively, the above issues with the first named applicant’s claims and evidence, lead the Tribunal to find that he was not a witness of truth and not a credible witness and to give no weight to the Hospital Discharge Letter and Community Certificate.
Does the first named applicant belong to the Patidar caste?
The first named applicant has consistently claimed to be a Patidar and his surname reflects his membership of the Patidar caste which is also called the Patel caste. The Tribunal thus accepts that he belongs to that caste.
However, given the first named applicant’s lack of credibility and having given no weight to the Community Certificate, the Tribunal does not accept that the first named applicant was a member of [Foundation 1] or engaged in any activity connected to that organisation.
Findings on claims relating to Hardik Patel and Congress Party
Given the first named applicant’s lack of credibility and the issues regarding his evidence about Hardik Patel, the Congress Party, and his reasons for leaving India, the Tribunal does not accept his protection claims. That means that the Tribunal does not accept that the first named applicant was a member of the Congress Party, a member of a local committee of the Congress Party, or that he worked for local Congress Party candidates during elections. The Tribunal does not accept that the first named applicant resigned from a Congress Party committee or has been threatened or harmed by any member of the Congress Party, any member of the BJP, or anyone acting on behalf of the BJP such as a local gang. Nor does the Tribunal accept that Hardik Patel or anyone else asked the first named applicant to join Hardik Patel, the BJP, PAAS or the movement for granting of OBC status to Patidars. The Tribunal does not accept the first named applicant’s claims that his house was looted or ransacked, or that any member of his family (including his daughter/brother’s daughter) has been threatened, tortured, verbally attacked, physically attacked, harassed, or harmed by Hardik Patel or anyone associated with Hardik Patel, any other Patidar leader, any member of PAAS, anyone associated with the movement for the granting of OBC status to Patidars, the police, the Gujarat state government or the authorities in India. Neither does the Tribunal accept that the first named applicant was hospitalised for 10 days due to high blood pressure caused by threats by Hardik Patel. Finally, the Tribunal does not accept that, since the first named applicant arrived in Australia, Hardik Patel or anyone else in India has made death threats against him via his father or brother. In other words, the Tribunal rejects in their entirety the protection claims made by the first named applicant.
Having rejected the protection claims advanced by the first named applicant, the Tribunal finds that he will not be of adverse interest to Hardik Patel or anyone associated with Hardik Patel or PAAS or the movement for the granting of OBC status to Patidars, any other Patidar leader, any member of the Congress Party, any member of the BJP, anyone acting on behalf of the BJP such as a local gang, the police, the Gujarat government, or authorities in India. The Tribunal thus finds that the first named applicant will not be killed, put behind bars or subjected to any serious harm or significant harm if he returns to India for the reasons he has claimed.
Protection visa criteria findings
The Tribunal has rejected the first named applicant’s protection claims and found that he will not be killed, put behind bars or subjected to any serious harm if he returns to India for the reasons he has claimed. Further, there is no credible evidence before the Tribunal to suggest that he faces a real chance of serious harm on any other basis for one or more of the five reasons referred to in s.5J(1)(a) if he returns to India. Thus, on the evidence before it, the Tribunal finds that there is not a real chance that the first named applicant will be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion if he returns to India. Hence, the first named applicant does not have a well-founded fear of persecution and is not a refugee as defined in s.5H.
The Tribunal has rejected the protection claims made by the first named applicant, and found that he will not be killed, put behind bars or subjected to significant harm if he returns to India for the reasons he has claimed. Further, there is no credible evidence before the Tribunal that he will suffer significant harm in India for any other reason. The Tribunal thus finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.

No separate protection claims have been made by or on behalf of the second named applicant.
Therefore, the Tribunal is not satisfied that either applicant is a person in respect of whom Australia has protection obligations. Consequently, the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the protection visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Mila Foster
Member

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

[2021] AATA 718

15 February 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Natural Justice

Statutory Construction

Appeal