1703850 (Refugee)

1703850 (Refugee) [2020] AATA 5736 (4 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1703850
COUNTRY OF REFERENCE:                   India
MEMBER:Damian Creedon
DATE:4 December 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 04 December 2020 at 4:00pm

CATCHWORDS
REFUGEE – protection visa – India – political opinion – youth leader of Congress Party – threatened and assaulted by members of rival party – particular social group – Charmar caste – persistent low-level harassment from members of higher castes – vague and unconvincing evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K, 5L, 5LA, 36, 65, 91R, 91S, 499
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of India, applied for the visa on 4 April 2013 and the delegate refused to grant the visa on 13 February 2017.
RELEVANT LAW
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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The applicant is a [age]-year-old man from Jalandhar, Punjab, India.
The applicant is single and has no children. He claims no religious affiliation.
The applicant completed his secondary education and a Bachelor [degree] in Jalandhar before deciding to undertake international study in Australia.
The applicant arrived in Australia [in] April 2007 pursuant to a [Student] visa, valid until 15 March 2009.
Claims:
In a written statement accompanying his protection visa application[1] the applicant made the following claims:
[1] See Department File, folios 5 – 6.
a.The applicant claims that, although he entered Australia on a student visa, the ‘real reason’ he left India in 2007 was because he was ‘persecuted’ due to his political beliefs.
b.The applicant claims that he and his ‘whole family’ were supporters of the Congress Party and that he was a ‘youth leader’ of the party.
c.He claims that he was ‘very vocal’ at Congress party meetings and that he ‘urged people’ not to support the Akali Dal Party.
d.He claims that, shortly before making his student visa application, after a ‘heated’ political meeting involving members of both parties, he was identified by Akali Dal supporters as he left the meeting, refused passage and assaulted. He claims:
These men were drunk and started a fight with me by punching me. I tried to get away and in doing so ended up hitting one of them. These men then gang assaulted me causing me to suffer injuries. I was unable to walk for a while and during this time threats were made on my life.
e.The applicant claims that, later, he was told that the person he hit was the son of an ‘aggressive’ Akali Dal politician who ‘sought revenge’ against the applicant.
f.The applicant claims to have received threats on his life and that members of the Akali Dal Party attempted to abduct him and, separately, involve him in a motor vehicle incident.
g.The applicant claims that the police did nothing to protect him. He states that he decided to not go out in public and to hide.
h.He claims that his family asked him to leave India for his safety and to not return. He claims to have then applied for a student visa to Australia with the prospect of applying for permanent residence here. He claims:
I will be assaulted and persecuted as soon as I return to India. I would be put into jail on fake charges and will not be able to have a fair trial as there is corruption in the court system. As there were threats on my life and attempted abductions, I fear for my life. I would not be protected by the police as the police are on the payroll of the politician. I fear being harmed and Akali Dal supporters will physically harm me and execute their threats to kill me.
Evidence:
The Tribunal has before it a range of material, including, relevantly, copies of the following documents:
a.The applicant’s protection visa application forms signed on 26 March 2013 (visa application);
b.The applicant’s identity documents being a copy of his passport obtained from the Department’s file;
c.The protection visa decision record dated 13 February 2017 (delegate’s decision record);
d.An undated letter under the general letterhead of the ‘Punjab Government’, ‘Punjab Police, [Branch 1], Jalandhar’ (Police Letter) which states materially as follows (reproduced as written):
It is stated that [the applicant] was the resident of [address] Jalandhar. His DOB is [date]. His Family was quite will settled and educated. They had good relationship with congress and were representative of the same.
[The applicant’s] father [named] sent [the applicant] to foreign for higher education. His family comprised of his parents and his younger brother. It was been informed that due to government of Akali Dal in Punjab state, since they belong to opposition party congress, their had been conflicts between two because of political pressure that family ran away in order to protect their lives.
Since 15^th May 2008 there has been neither any information regarding his family nor of [the applicant],
e.The review application form which included a copy of the delegate’s decision record.
The Tribunal has also read and had regard to the Department of Foreign Affairs and Trade’s most recent ‘Country Information Report on India’, published on 17 October 2018 (DFAT Report).
Country of reference / receiving country:
The applicant claims to be an Indian national. Based on the copy of his passport provided to the Department of Immigration and Border Protection (the Department) by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that India is his country of nationality and also his receiving country for the purposes of the Act.
Hearing:
The applicant attended a hearing on 1 December 2020. He was not represented. Although the applicant requested a Punjabi interpreter, none were available on the day of the hearing. The Tribunal gave the applicant the option of proceeding in English or rescheduling to another day when an interpreter was available. The applicant stated that he was content to proceed in English. At the conclusion of the hearing the Tribunal again offered the applicant the opportunity to reconvene at a later date with an interpreter if he felt that would assist him in presenting his case, or in better expressing his evidence, however the applicant stated that he was content with the conduct of the hearing and that he did not wish to reconvene with an interpreter at a later date.
The Tribunal asked the applicant about the completion of his visa application forms. The applicant stated that his friend’s mother helped him to complete the application forms. He said that the contents were correct, that he agreed with the contents and that he did not wish to add anything to the forms.
The applicant stated that he had been resident with his family in Jalandhar prior to coming to Australia. He stated that the family had previously been resident in Hoshiarpur, until he had completed his Primary education when the family moved to Jalandhar for better educational opportunities for the applicant and his brother. The applicant stated that he completed Middle and High School in Jalandhar, as well as a Bachelor [degree]. When pressed by the Tribunal the applicant stated that he did not work in India prior to coming to Australia. The applicant stated that his passion was cooking, and that he had wished to pursue cookery studies in Australia.
The Tribunal then asked the application about his family’s situation in India. He stated to the effect that he does not presently know the whereabouts of his family in India. When pressed by the Tribunal the applicant stated that his family there comprise of his parents and his brother, but that he lost contact with them in or around 2008 and he has not had any contact with them since that time. The applicant stated that he has extended family in India, but that he is not in contact with them. The applicant stated that, when he lost contact with his family, his financial support from them also ceased and he discontinued his studies in Australia. When further pressed by the Tribunal as to his family’s situation in India, the applicant stated to the effect that his family were of a ‘low’ caste.
When pressed as to his motives in travelling to Australia, the applicant stated that furthering his higher education was his motive. He stated that he came to Australia with his family’s financial support and consent. When pressed, he stated that his family were supportive of his decision to study in Australian, but equally were content for him to remain in India if he so chose.
The Tribunal then asked the applicant why it was that he feared returning to India. The applicant stated that the ‘upper-class people’ there do not want ‘us’ to be educated or to ‘have money in our pockets’. He stated that ‘we are lower caste’. He stated that he misses his family and is concerned that if he returns to India:
They [that is, the ‘upper-class people’] may do something to me.
The Tribunal asked the applicant to describe his own experiences in India that makes him hold these fears. The applicant stated that he belongs to a lower caste, that he has no money and no power. He stated:
If I go back there, they will put me in gaol or something.
When pressed as to why he would be ‘put in gaol’, the applicant stated that he was a member of a lower caste and that ‘they do not want us to go up’ into higher studies or better jobs.
When pressed to describe his own experiences of social behaviour in India that led him to this conclusion, the applicant stated that as a member of a lower caste he was discriminated against by higher castes in Indian society, despite being educated to an equivalent degree with others of higher castes.
When further pressed, the applicant stated that he belonged to a lower caste called the ‘Chamar’. When asked to describe his experiences as a member of that caste, the applicant gave two examples: he stated that members of his caste were ‘teased’ in the street by members of higher castes and that there were social prohibitions on where he could drink water from and how he could behave. He stated that these restrictions stood in contrast to the freedoms he enjoyed in Australia.
When further pressed, the applicant stated that the perpetrators of such harassment were members of higher castes such as ‘Brahmins’ and ‘Rajputs’. When asked to provide an example of his experience of the type of harassment he was describing, the applicant stated to the effect that rubbish was piled up at the door of his family home, that he had sought to prevent this from happening by confronting the persons responsible, but that he had resisted being drawn into physical confrontations with them. The applicant reiterated that as a member of a lower caste he was socially prohibited from engaging in certain activities in India.
The applicant stated that he first became aware of his caste status when his family moved from Hoshiarpur to the much larger city of Jalandhar, where more people of different castes interacted. He stated that he pressed his father about his caste status as he began to experience social harassment. He stated that his father had worked as a [occupation] but had felt that his career had been hampered by his caste status.
The Tribunal then asked the applicant what he feared would happen to him if he returned to India now. The applicant stated that ‘they’ put a lot of ‘false and wrong’ allegations on him and he feared he would be gaoled; he stated:
They can do anything with me.

When pressed as to the nature of the false allegations against him, the applicant stated that:
The false allegations like that are, when my father [went] outside for a walk or something, and I told them don’t tease my father because he’s old, and they tried to fight with me and sometimes they hit my father, then I also pushed them – they put false reports [at the] police station.
When pressed, the applicant stated that he was never arrested or charged by police, despite these false reports, but that he was ‘bullied’ by the police.
When asked whether there were any other incidents of a similar nature in his experience, the applicant stated to the effect that there were not, other than ‘sometimes’ he was ‘put down’ and suffered ‘scratches’ on his knees. When the Tribunal put to the applicant that what he was describing appeared to be ‘persistent, but low-level harassment’ from higher castes the applicant stated that he agreed with that description, adding to the effect that women in his caste and community were particularly targeted and vulnerable.
When asked whether, after more-than 13 years have elapsed since he arrived onshore, the applicant would still be the target of such behaviour and ‘false reports’ as he described, the applicant stated that he would be. When pressed to provide details as to why this would be the case, the applicant stated merely that he was afraid, that he did not know the whereabouts of his parents and his brother, and that he did not know what he would do in India for his work and living arrangements. The applicant stated that if he was physically threatened the authorities in India would do nothing to protect him as ‘everything’ there was ‘about money’ and ‘bribes’.
The Tribunal then asked the applicant whether other members of his caste in his community had similar experiences to his and his family’s, the applicant stated that they did. The applicant estimated that members of his caste comprise between 40% and 45% of the population in his home city.
The applicant stated that he did not think that he could relocate to another area in India as he would experience difficulty in finding a safe place to live, finding work and finding protection in the case of harassment anywhere in India.
The Tribunal then raised with the applicant the written claims in his visa application, in particular his claims to political persecution as a member of the Congress party. The applicant stated to the effect that, whereas the Congress party stood for freedom and equality for all castes, the rival Akali Dal party was premised on maintaining the current social and economic power structures. The applicant stated that his whole family were Congress party supporters and that he was a ‘vocal’ member of the party at party meetings. When pressed as to the membership of the Congress party in his area, the applicant stated that it was mostly comprised of members of his caste and similar castes, in particular the ‘Charmar’ and ‘Balmiki’ castes.
When asked about his claims to have experienced harassment as a result of his membership of the Congress party, and in particular the incidents stated in his written claims, the applicant stated that he attended the political meeting described in his written claims with his father and a ‘few friends’, that there was a group of rival party supporters waiting for them as the meeting broke up, and that he experienced verbal harassment that escalated into a physical confrontation. When pressed, the applicant stated that he was assaulted and defended himself by ‘hitting’ someone, that he tried to run away and find a police officer, that he hid from the group at a friendly house until the incident concluded and he then left.
When further pressed as to the consequences to him of the altercation, the applicant stated that he was taken to a police station, but that both party’s leaders worked out a compromise with the authorities and he, and others, were released from police custody. He stated that he was not charged with any offences, but that he experienced ‘teasing and bullying’ in the police station.
The applicant stated that he lost contact with his family ‘after 2008’ and that he does not know what has happened to them. When pressed by the Tribunal to speculate about their whereabouts, or what may have happened to them, the applicant stated that he did not know. When further pressed by the Tribunal as to whether it was a fear of the applicant’s that his family may have been the victims of violence, the applicant maintained that he did not know.
The Tribunal discussed the Police Letter with the applicant. The applicant stated that he obtained a copy of the Police Letter through a friend in India ‘two weeks ago’, but that the letter was written in 2013. The applicant stated to the effect that he requested the letter in 2013 to support his visa application. The applicant stated that the whereabouts of his family in India had come to the attention of the police due to a census having been carried out six months after his arrival in Australia, and after enquiries by relatives had shown that his family were no longer resident at their home address.
When further pressed by the Tribunal the applicant stated that he does not know where his family are or what has become of them.
The Tribunal discussed with the applicant the following country information taken from the DFAT Report:[2]
Hindu tradition divided society into a hierarchy of hereditary groups, associated with particular occupations. Four principal groups exist within the system’s hierarchy: Brahmin priests and teachers, Kshatriya warriors and rulers, Vaishya farmers, traders and merchants and Shudra labourers. There are thousands of subgroups within the four main strata. Caste is predominately a Hindu concept, but has become a cultural phenomenon that exists within other religions and across India’s many social, linguistic and religious communities
[2] DFAT Report, para [3.47].
The applicant stated that his caste, the ‘Charmar’, are a subset of the ‘Shudra’ caste. When asked about the ‘Dalits’ caste, the applicant stated to the effect that ‘Dalits’ and ‘Shudra’ are synonymous and refer to the same principal caste.
Country information:
The Tribunal has read and had regard to the DFAT Report, and in particular to the paragraphs extracted at Annexure ‘A’ hereto.
Assessment of Claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
Findings
In giving his oral evidence, the applicant appeared to the Tribunal to do so honestly and truthfully. Overall, the Tribunal is persuaded as to the general truth of the matters he attests to. Where there is any discrepancy between the applicant’s written statement and his oral evidence, the Tribunal prefers his oral evidence as being a more direct and personal expression of his evidence rather than having been recorded by a third party.[3] In particular the Tribunal is persuaded that:
[3] In this case, the applicant’s friend’s mother.
a.the applicant had been resident with his family in Jalandhar, India prior to coming to Australia;
b.the applicant is a member of the ‘Charmar’ subset of the ‘Shudra’ caste;
c.the ‘Shudra’, and by extension the ‘Charmar’, caste are of a ‘low’ status;
d.the applicant perceived himself to be of low status when compared to members of other casts such as ‘Brahmins’ and ‘Rajputs’;
e.the applicant’s experience of life in Jalandhar as a member of a ‘low’ caste included persistent low-level harassment from members of ‘higher’ castes, described by the applicant as ‘teasing’ and ‘bullying’;
f.the applicant both experienced such harassment personally and observed others of his caste in his community experience it;
g.the applicant was a member of the Congress party in India;
h.after a political meeting the applicant and other members of the Congress party were involved in a physical altercation with members of a rival party;
i.as a result of the altercation the applicant was ‘taken’ to a police station, but was not arrested or charged with an offence; and
j.the applicant does not presently know the whereabouts of his family in India, or what has become of them.
The Tribunal also accepts that the applicant wishes to stay in Australia to make a future for himself.
The Police Letter
The Tribunal has read and had regard to the Police Letter. The Tribunal has no cause to doubt the letter’s authenticity, however the source and veracity of the information contained in the letter are unknown. The Tribunal is prepared to accept the letter as evidence that the whereabouts of the applicant’s family was unknown to Police when the letter was written in 2013. As to the balance of the information in the letter the Tribunal finds it to be mere unattributed speculation. Given this finding, and given that the letter is now some seven years old, the Tribunal considers the Police Letter to be of minimal probative value in respect of the truth of the information and inferences it purports to assert.
Analysis of claims
Overall, the Tribunal considers that the applicant’s evidence was vague and lacking in detail in respect of his claims to holding a well-founded fear of persecution.
The applicant’s only specific evidence of experiencing violence was the incident he described after the political meeting, being a physical altercation between rival political party members in which he himself participated, albeit in self-defence on his account of the incident. The applicant’s evidence is that he was among a number of people detained as a result of the incident, and that the local leaders of both parties worked out a ‘compromise’ to have their members released from police custody. The incident described by the applicant is broadly consistent with DFAT’s assessment of the nature of certain political events in India,[4] and does not, to the Tribunal’s mind, establish persecution of the applicant based upon his political beliefs.
[4] See DFAT Report, para [3.25].
Other than this incident, the applicant’s responses to the Tribunal’s questions in respect of his specific fears were brief and he offered no details other being a victim of persistent low-level harassment on account of his caste status, harassment which he described as ‘teasing’ and ‘bullying’. Although he mentioned having been ‘sometimes’ ‘put down’, resulting in ‘scratches’ to his knees, the Tribunal found these claims of violence to be vague and unconvincing.
When further pressed by the Tribunal as to the foundations for his specific fears of persecution if he is returned to India the applicant provided no further or other basis for his fear that did not amount to vague, subjective feelings of apprehension on account of his caste status. Although the applicant claimed that ‘they’ had made ‘false and wrong’ allegations against him, and he feared he would be gaoled if he returned to India, he provided no evidence to support this claim. Indeed, his evidence is that he has never been arrested or charged with an offence by police. Overall, the Tribunal considers the applicant’s fear of being gaoled to be mere conjecture on his part.
As to his more ‘general’ fears, the applicant tended to speak from a generalised perception of negative social attitudes, harassment and judgement in his home country on account of his caste status: for example, the ‘upper-class people’ in India do not want ‘us’ to be educated or to ‘have money in our pockets’. Despite being pressed for detail, the applicant was ultimately unable to describe these fears other than in vague generalisations based upon his perception of societal attitudes to the caste system in India.
The Tribunal has read and had regard to the DFAT Report and notes in particular:
a.the specific constitutional protections in place in India to protect citizens from discrimination on the basis of caste;[5]
b.the constitutionally mandated ‘positive discrimination’ for the advancement of ‘Scheduled Castes’ including ‘Dalits’;[6]
c.the specific constitutional protections in place to protect the rights of all citizens to form associations and participate in the political process;[7] and
d.DFAT’s assessment that leaders and members of opposition political parties do not face official or societal discrimination in India.[8]
[5] See: DFAT Report, para [2.31], [3.47] – 3.52].
[6] See: DFAT Report, para [3.51].
[7] See: DFAT Report, para [3.22].
[8] See: DFAT Report, para [3.25].
Overall, the Tribunal finds that the applicant’s fear of persecution if he is returned to India as a result of his caste status or membership of a political party to be mere speculation not amounting to a well-founded fear.[9] The applicant did not provide any evidence, including the Police Letter, sufficient to dissuade the Tribunal from this conclusion.
Cumulative claims
[9] MIEA v Guo (1997) 191 CLR 559 at 574-5.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in his application and as discussed in the hearing, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if he returns to India now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to India. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm
The Tribunal has considered the applicant’s claims under complementary protection.
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to India now or in the reasonably foreseeable future.
The Tribunal is satisfied there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflected on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk he will suffer arbitrary deprivation of his life or the death penalty. The Tribunal finds no grounds that suggest the applicant will be subject to significant harm for any reason if he returns to India. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by the Act and therefore he is not a refugee.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India that there is a real risk that he will suffer significant harm.
Overall conclusion:
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies the Act 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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Damian Creedon
Member

Annexure ‘A’
Country Information Extracts
HUMAN RIGHTS FRAMEWORK

2.30 India is a state party to the following international human rights instruments: the International Covenant on Civil and Political Rights; the Convention on the Elimination of All Forms of Discrimination Against Women; the International Covenant on the Elimination of All Forms of Racial Discrimination; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities. India has signed, but not ratified, the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment and the Convention for the Protection of All Persons from Enforced Disappearance.

2.31 Section 15 of the Constitution protects citizens from state discrimination on the basis of religion, race, castes, sex or place of birth. The same section protects people with those attributes from discrimination in access to shops, restaurants, hotels and places of public entertainment. In spite of these protections, the US State Department reports that discrimination on the basis of sex and gender, religious affiliation, castes, refugee status, and tribe continues to occur (see relevant sections).
2.32 Legal protections exist for people living with disabilities including under the Persons with Disabilities Act (2016), which protects access to education, employment and welfare, however the opportunities are reportedly limited. Sexual orientation and gender identity, apart from hijra status, are not protected attributes (see LGBTI).
…
SECURITY SITUATION
2.36 The security situation in India varies over time and from place to place due to its size and diversity. Civil unrest, including violent rioting, is common. Drivers of civil unrest are complex and varied and may include: tensions between different religious, social and ethnic communities (see Religion and Caste System); insurgencies or protests motivated by ideological or political objectives; tensions along the Line of Control (LoC) in Jammu and Kashmir (J&K); and tensions within communities over issues such as land ownership and marriage-related disputes
…
POLITICAL OPINION (ACTUAL OR IMPUTED)
3.20 Democratic elections for the Lok Sabha, the lower house of parliament, have been held since 1951. The only exception to this was when the Indian Congress Party’s then Prime Minister Indira Gandhi postponed elections during a period of emergency rule from 1975 to 1977. Notwithstanding the scale and complexity of India’s political landscape, and noting some exceptions, elections in India tend to be peaceful, broadly free and fair, reflect the will of the electorate, and result in regular transfers of power at central and state levels. Activists have occasionally called for communities in conflict-affected areas to boycott electoral processes, and low-level violence has sometimes occurred.
3.21 India has a diverse political landscape, which represents different ethnic, religious, secular and political interests. There are no constitutional, legal or other institutional restrictions preventing minorities from participating in politics. Political parties often court ethnic, religious and caste-based minorities for their ability to deliver ‘vote banks’.
Opposition Parties and Critics of the Government
3.22 The Constitution protects the right to form associations and unions. This right is subject to ‘reasonable’ restrictions in the interests of public order, decency or morality. Public demonstrations require advance notice and permission of authorities and frequently occur. Intelligence agencies regularly monitor the activities of civil society actors and individuals engaged in particular areas of sensitivity.
3.23 There are few publicly available statistics on election incidents. Reports of violence around polling stations do occur during electoral periods.
3.24 During 2017, police filed sedition charges against TTV Dhinakaran, the leader of the All India Anna Dravida Munnetra Kazhagam party, and some of his supporters for distributing pamphlets that criticised Prime Minister Modi and the Tamil Nadu Chief Minister.
3.25 DFAT assesses that leaders and members of opposition political parties do not face official or societal discrimination. The risk of political violence between rival supporters increases during parliamentary and state elections, especially in states where results are tightly contested. However, in general, elections in India are peacefully conducted.
…
Caste System
3.47 Hindu tradition divided society into a hierarchy of hereditary groups, associated with particular occupations. Four principal groups exist within the system’s hierarchy: Brahmin priests and teachers, Kshatriya warriors and rulers, Vaishya farmers, traders and merchants and Shudra labourers. There are thousands of subgroups within the four main strata. Caste is predominately a Hindu concept, but has become a cultural phenomenon that exists within other religions and across India’s many social, linguistic and religious communities.
3.48 A group known as ‘Dalits’ (sometimes referred to as ‘Untouchables’) fell outside the four principal groups. Dalits were historically associated with work seen as less desirable, including work involving cleaning or waste, and traditional taboos existed against members of the four castes touching them. Many Dalits continue to work in occupations that include scavenging, street cleaning and handling of human or animal waste, corpses or carcasses.
3.49 Violence and discrimination against Dalits continues. Dalits have more limited educational and employment opportunities and face discrimination in health care and access to other essential services. The US State Department reported in 2017 that Dalit women were more likely than other women to suffer, or be threatened with, sexual assault.
3.50 According to the Socio Economic and Caste Census of 2011, Dalits comprised 18.45 per cent of the total population. An estimated 36.75 per cent of households in Punjab are Dalit, with lower numbers in the north-eastern states.
3.51 In recognition of entrenched disadvantage, the Constitution contains several provisions relating to ‘Scheduled Castes’ (mainly Dalits), ‘Scheduled Tribes’ (tribal and indigenous groups) and ‘Other Backward Classes’. Section 17 abolishes the practice of untouchability. Section 15 allows for positive discrimination for the ‘advancement’ of ‘socially and educationally backward classes’. Part XVI governs the reservation of positions for Scheduled Castes, Scheduled Tribes and others. This includes reserved seats in the Lok Sabha, seats in each state’s legislative assembly, government appointments and access to higher education. The government maintains a National Commission for Scheduled Castes.
3.52 Some Dalits have achieved high office, helped in some cases by quotas for educational, public service and political representation. Dalit NGOs, community groups and chambers of commerce exist. India’s President, Ram Nath Kovind, is a Dalit from the ruling BJP party and is the second Dalit to hold that position. His main opponent for the position was Meira Kumar, a Dalit from the opposition Indian National Congress Party.

[2020] AATA 5736

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