1704409 (Refugee)

1704409 (Refugee) [2021] AATA 5328 (3 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1704409
COUNTRY OF REFERENCE:                   India
MEMBER:Rachel Da Costa
DATE:3 December 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 December 2021 at 11:20am
CATCHWORDS
REFUGEE – protection visa – India – ethnicity and political opinion – membership and activity in protest organisation – harassment, questioning and torture by police and government agents – confrontation with party leader over his personal use of funds – threats by leader and associates – credibility – inconstant claims and evidence – written claims about police and government agents abandoned and claims about confrontation with party leader raised for first time at departmental interview – no continuing interest or activity in protests or politics – wife returned to home country and withdrew application – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth),
CASE
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 13 February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of India, applied for the visa on 7 October 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background
[The applicant] is a [Age] year-old from India. When he lodged his protection visa application, it also included his wife as a secondary applicant with no claims of her own.
In his protection visa application the applicant provided the following information. He was born in [a] town, Gujarat state, India. He speaks, read and writes Gujarati, Hindi and English. He is a Hindu. He is married. In India he has a father and a mother and he is in contact with them. Before coming to Australia he lived in [Suburb], Ahmedabad, Gujarat state. He completed 11 years of school in India. From May 2015 to July 2016 he was a [Occupation] for [Employer] in Ahmedabad. He has held visas to enter [Country 1], [Country 2] and [Country 3]. His visa for [Country 3] is still valid. He visited [Country 3] from [November] 2013 to [April] 2014 and [November] 2014 to [May] 2015 and he visited [Country 1] from [May] 2015 to [August] 2015. He arrived in Australia [in] August 2016, travelling on his passport issued by the Republic of India [in] 2013, as the holder of a visitor visa.
On 24 February 2020, the Tribunal wrote to the applicant and his wife, noting that records of the Department of Home Affairs indicated that his wife was currently outside Australia and did not hold a visa that enabled her to return. The letter explained that if that information is true, the applicant’s wife cannot be granted a protection visa. The letter invited the applicants to comment on or respond to the information. On 9 March 2020, the applicant wrote to the Tribunal and confirmed that his wife had returned to India. He said that only he would proceed with the protection visa application and his wife should be removed from the application. The same day, the Tribunal sent the applicant a withdrawal form in respect of his wife which the applicant signed and returned. The Tribunal is satisfied that the withdrawal of the applicant’s wife was valid and finds that there is no longer an application for review on foot in respect of the applicant’s wife.
Evidence before the Department
Protection visa application
The applicant makes the following claims in his protection visa application form and an attached written statement:
·     He belongs to the Patidar community. The Patidar community is agitating against the state government for a quota reservation in education and government jobs.
·     The movement started off peacefully but became violent when police lathicharged the peacefully demonstrating people of his community. The applicant was lathicharged in Ahmedabad where they carried out the march.
·     Their community leaders, [Mr A], [Mr B] and [Mr C] have been leading the agitation. They and people around them have been falsely implicated in many cases and threatened by goons on behalf of the government.
·     The applicant was a core committee member of PAAS (Patidar Anamat Andolan Samiti) in his area. He had been working closely with [Mr A] and other PAAS leaders on the movement’s strategy.
·     They (in his written statement the applicant says ‘we’) were all on government blacklists. Some of the people involved were exiled from the state, some are in jail, some are trapped in legal battles. They (we) had all been charged with secessionism despite having no fault.
·     Police unnecessarily questioned him in order to harass him further.
·     The police were calling them (in his written statement the applicant says ‘us’) every day for questioning just to frame false charges on them (us) and harass and torture them (us). He sought help from the police but instead of helping him they tortured him. He was forced to withdraw his support for the agitation.
·     He was tired of this treatment and thought he would be imprisoned.
·     He did not try to relocate and was at home cooperating with the police but when the torture went beyond the limit of tolerance he ran away.
·     His friends and relatives suggested he run away from India until the scenario calms down and violence subsides. He left India to save himself from the political goons and the government.
·     If he returns he will be imprisoned. He is considered a challenge by the government.
He also provided an undated document entitled ‘The Entire Episode of Patidar Movement’ which purports to set out the background and timeline of the Patidar protest events from July 2015 to August 2016. The source of the information contained in this document is not clear.
The interview
On 31 January 2017, the applicant attended an interview with the Department to discuss his protection visa application. In that interview the applicant reiterated some of his claims and made a number of new claims as follows:
·     The applicant was in [Country 1] for the four months prior to the rally [in] August 2015 but he was in touch with the organisers by telephone. He arrived in India on the day of the rally.
·     The applicant worked for [Mr A] on [Social media 1] and social media helping to organise the rally. [Mr A] used money that was collected for the rally [in] August 2015 for his own benefit.
·     [Mr A]’s team came many times to the applicant’s house and threatened him. The applicant was connected with [Mr B].
·     The applicant delayed leaving India for Australia for almost three months after the grant of his Visitor visa because [Mr A] was in jail so the situation was under control.
·     The applicant brought his wife and son to Australia with him because [Mr A]’s people came to the applicant’s house. When the applicant saw the situation was good he sent his son home to India.
·     The applicant was never arrested in India and never had any charges filed against him or problems with the police. He is not involved in or interested in politics.
·     [Mr A] is now a big man who is going to run as a candidate in the elections and he is connected with the BJP.
·     He thinks [Mr A] would use the police to track down everyone who helped [Mr B].
·     His family in India are fine.
The delegate’s decision
In her decision dated 13 February 2017, the delegate found that the applicant’s claims lacked credibility and she was not satisfied that if the applicant returned to India he would be threatened or harmed. The delegate found that the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
The review application
On 10 March 2017, the applicant lodged an application for review of the delegate’s decision with the Tribunal. The applicant provided a copy of the delegate’s decision to the Tribunal.
The hearing
The Tribunal exercised its discretion to hold the hearing by video using the Microsoft Teams platform with the agreement of the applicant. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the fact that the applicant lives in regional New South Wales. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.
On 17 November 2021, the applicant appeared before the Tribunal via video to give evidence and present arguments. The applicant advised the Tribunal that he spoke English and did not need the assistance of an interpreter, however an interpreter in the English and Gujarati languages was present at the hearing and available for the applicant if required. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
Nationality
The applicant claims to be a citizen of India and provided to the Department a copy of his Indian passport issued [in] 2013. The delegate was satisfied that the applicant was using his own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of India. The Tribunal finds India is his receiving country for the purpose of assessing his claims for protection.
CONSIDERATION OF CLAIMS AND EVIDENCE
The 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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant gave evidence that a friend helped him to fill in his protection visa application form but the information he has provided is all true and correct.
During the hearing, the Tribunal discussed with the applicant his family, education, employment, where he lived in India, his migration and travel history, the problems he claimed to have experienced in India and why he fears returning to India. The Tribunal found there were various discrepancies in the applicant’s evidence and as a result, it has concerns about the truthfulness of the applicant’s evidence in relation to claimed events in India and did not find him to be a credible witness.
The Tribunal’s concerns are set out below.
First, in the Tribunal hearing the applicant admitted that the claims of harm he made in his protection visa application did not happen.
By way of background, country information, which the Tribunal accepts, confirms that a large rally led by people including PAAS convenor [Mr A], took place in Ahmedabad [in] August 2015.[1]
[1] [References deleted]
In his protection visa application, the applicant claims that he was lathicharged[2] by the police during the march in Ahmedabad. He also claims that he was falsely implicated in cases, he was threatened by goons on behalf of the government, that he was on government blacklists, he was charged with secessionism, he was questioned, harassed and tortured by the police and was forced to withdraw his support for the PAAS agitation. He was tired of this treatment and thought he would be imprisoned. He was cooperating with the police but when the torture went beyond the limit of tolerance he ran away.
[2] The Cambridge Dictionary says ‘lathicharge’ is an Indian English term which refers to ‘an occasion when a large group of police run forward in an attacking movement carrying their sticks’:
In the interview with the delegate, the applicant confirmed that the march in Ahmedabad took place [in] August 2015 and he was not arrested or harmed on that day. He stated that he was never arrested in India. He agreed that he never had any charges filed against him, he was never the subject of a criminal investigation, he was not involved in any illegal issues and didn’t have any other problems with the police. He was never involved in politics or a member of a political party.
In the Tribunal hearing, the applicant was asked whether he ever had any problems with the police while he was in India and he said he did not. He confirmed that nothing happened to him on the day of the march. He also confirmed that he never had any problems with the police and that he was never arrested, charged or harassed or anything else while he was in India. He was not involved in politics.
The Tribunal put to the applicant its concern that these changes in his evidence raised concerns about his credibility. The applicant said he had no response. The Tribunal accepts the applicant’s evidence given in the Tribunal hearing and to the delegate and finds that he did not have any problems with the police or the government while he was in India and finds that he did not leave India for this reason. The fact that the applicant made claims in his protection visa application about events which he admitted to the delegate and to the Tribunal did not occur raises concerns for the Tribunal about his credibility and the genuineness of his claims more broadly.
Secondly, the applicant changed his evidence about why he fled India which raises concerns for the Tribunal.
In his protection visa application, the applicant claims that he had problems with the police and the government due to his involvement with the PAAS movement and that is why he had to leave India.
In the interview with the delegate, the applicant claimed that he had become involved with the PAAS movement in early May 2015 and he had been introduced to the movement and [Mr A] by [Mr B] whom he knew through playing [Sport]. The applicant said his role was to help gather people to attend the rally [in] August 2015 through using [Social media 1] and [Social media 2]. The reason the applicant had to leave India in 2016 was because [Mr A] had threatened his life. This happened because the applicant was close to [Mr B] who was trying to expose [Mr A], for example because [Mr A] had taken money from PAAS supporters and used it for his own personal expenses. The applicant claimed that [Mr A] is worried that [Mr B] will expose everything and stop him from winning at the next election and so the people who helped [Mr B] are the target of [Mr A]. The applicant said that people connected to [Mr A] called him and came to his home and threatened him and told him to leave India, although he did not say when this occurred. He said that while [Mr A] was in jail the situation was under control but when [Mr A] was released from jail in July 2016 the applicant bought his ticket and came to Australia in August 2016.
In the Tribunal hearing, the applicant claimed that a few days after the rally [in] August 2015, he attended a meeting of the people who had been involved in organising the rally and [Mr A] told them that he was going to get involved in politics with the Indian Congress Party. Some of the people supported [Mr A] in relation to this and others, including [Mr B] and [Mr C] and the applicant did not. After that meeting, the applicant returned to his job. For around eight months, until about February or March 2016, nothing happened. After that time, people connected to [Mr A] started threatening the applicant and his family at his home and work and saying if he does not support [Mr A] they will harm him and his family. In March 2016, [Mr B] and [Mr C] went to jail and the applicant was worried that because he was connected to them that he might be the next person to get into trouble. Because of this and the threats from [Mr A]’s people the applicant left India and came to Australia. The Tribunal asked the applicant whether his family had experienced any problems in India since he left and he said they had not. The Tribunal accepts this.
The Tribunal put to the applicant its concerns about the discrepancies in his evidence between what he wrote in his protection visa application and what he told the delegate and the Tribunal and explained that this raised doubts about his credibility. The applicant said he did not wish to say anything in response.
As discussed in paragraphs 27 to 30 above, the Tribunal accepts the applicant’s evidence to the delegate and the Tribunal that he did not have problems with the police or the government more broadly while he was in India and has found that he did not leave India for this reason.

The Tribunal considers that if the applicant and his family had truly received threats from people connected to [Mr A] and those threats were the reason, or one of the main reasons he left India, then he would have mentioned that in his protection visa application claims rather than raising it for the first time in his interview with the delegate and then in the Tribunal hearing. This is particularly the case given the applicant appears to speak favourably of [Mr A] and his connection to him in his protection visa application claims. He states that he worked closely with [Mr A] and other PAAS leaders on the movement’s strategy and refers to harm he claims they all suffered at the hands of the police and others after the rally. In this context, it does not make sense to the Tribunal that the applicant would not have mentioned in his protection visa application claims that he was subsequently threatened by [Mr A] or people connected to him if that really happened and if it were the reason, or one of the main reasons, he left India.
In light of the applicant’s unexplained failure to mention this claim in his protection visa application and the discrepancies in his evidence, the Tribunal does not accept the applicant’s claims that he and his family were threatened by people connected to [Mr A] in the months after the rally [in] August 2015 or at any other time and that this is the reason he left India. The significant discrepancies in the applicant’s evidence about why he left India also raise concerns for the Tribunal about his credibility and the genuineness of his claims more broadly.
Thirdly, in his protection visa application, the applicant claims that he was a core committee member of PAAS, working closely with [Mr A], [Mr B] and [Mr C] on the movement’s strategy.
In the interview with the delegate, the applicant explained that he became involved in the movement at the start of May 2015 through [Mr B] whom he knew from playing [Sport]. He said that [Mr B] introduced him to [Mr A] who invited him to help with marketing the rally [in] August 2015. The applicant was good with computers and his role was to spread the word through [Social media 1] and [Social media 2]. The applicant went to [Country 1] in late May 2015 to visit his brother. While he was in [Country 1] he kept working on the task via phone. [Mr A] asked the applicant to attend the rally [in] August 2015. The applicant arrived back in India on that day and attended the rally. Nothing happened to him. About three days after the rally there was a meeting which the applicant attended. Sometime after the rally [Mr A], [Mr B] and [Mr C] were jailed. The applicant was closer to [Mr B] and [Mr B] was trying to expose [Mr A]. [Mr A] was worried this would harm his political future and so he targeted people who helped [Mr B], including the applicant.
In the Tribunal hearing, the applicant gave evidence that he met [Mr B], [Mr C] and later [Mr A] through playing [Sport]. They talked to him about the PAAS movement and invited him to become involved. He supported the intention of the movement and the idea of a rally. He became involved in early May 2015 in between returning from [Country 3] and going to [Country 1] [in] May 2015. His job, along with several other people, was to use social media to gather people for the rally [in] August 2015. He did not have an official position in the movement. While he was in [Country 1] he continued to call people and contact people using social media to spread the word about the rally. The applicant was not planning to return to India to attend the rally but [Mr A] called him and asked him to come in person and so he agreed. He landed in Ahmedabad on the morning of the rally and attended it during the day. Nothing happened to him. Soon after the rally, [Mr A] declared he was going to support the Indian National Congress party. [Mr B] and [Mr C] were not happy about this because they did not want to get involved in politics and nor did the applicant. There was a split in the group and the applicant did not support [Mr A]. The applicant stopped being involved with the movement around the end of August or beginning of September 2015. He said he only spoke to [Mr C] once after that meeting and he never spoke to [Mr B]. When he spoke to [Mr C], he said he did not want to be involved any more. He has not been involved since that time.
At a different point in the Tribunal hearing, the applicant gave evidence that in the months after the meeting he returned to his job but people were still contacting him about the movement because he had been an organiser and he was still in discussions with [Mr B] and [Mr C] about progressing the movement in a way that was not connected to a political party. [Mr B] and [Mr C] were sent to jail in March 2016 and so they could not do anything after that. It was around this time that the threats from [Mr A]’s people started.
The applicant spoke with some knowledge about the PAAS movement and his role in encouraging attendance at the rally through the use of social media. The Tribunal is prepared to accept that the applicant was involved in promoting attendance at the rally via social media, that he attended the rally [in] August 2015, that nothing happened to him on that day, that he attended a meeting with [Mr A] a few days after the rally, that he ceased his involvement with the movement very soon after that and that he has not been involved since. The Tribunal does not accept the applicant’s evidence set out in paragraph 42 about him continuing to be involved in discussions with [Mr B] and [Mr C] after the meeting on how to progress the movement, which contradicts his evidence that he ceased being involved after the meeting and that he did not wish to be involved any more.
In light of the significant discrepancies in some of the applicant’s claims between his protection visa application, his interview with the delegate and the hearing before the Tribunal and the Tribunal’s concerns about the truthfulness of his evidence more broadly, having considered all of the applicant’s claims and evidence, the Tribunal finds as follows.
The Tribunal accepts that the applicant was born in [Town] in Gujarat state in India. The Tribunal accepts that he worked as a [Occupation] for a [company] in India before coming to Australia. The Tribunal accepts that the applicant belongs to the Patidar community. The Tribunal accepts that between May 2015 and the end of August 2015, he was involved with the PAAS movement, albeit that he was in [Country 1] for most of this time. The Tribunal accepts that the applicant became involved through knowing [Mr B] from [Sport] and that the applicant was involved in encouraging people via social media to attend the rally in Ahmedabad [in] August 2015. The Tribunal accepts the applicant attended the rally [in] August 2015. The Tribunal accepts that the applicant attended a meeting a few days after the rally and that soon after that meeting he ceased his involvement with the PAAS movement. The Tribunal finds that he has not been involved since. The Tribunal accepts that the applicant’s family has not experienced any problems since he left India.
The Tribunal does not accept that the applicant was lathicharged or harmed in any other way at the rally [in] August 2015. The Tribunal does not accept that as a result of the applicant’s involvement with the PAAS movement or for any other reason that he was on government blacklists, that he was charged with secessionism, that he was questioned, harassed, charged or tortured by the police or harmed by them in any other way. The Tribunal does not accept that he was forced to withdraw his support for the agitation or that he thought he would be imprisoned for his actions. The Tribunal does not accept that he was threatened by political goons on behalf of the government. The Tribunal does not accept that in the months after the meeting following the rally the applicant continued discussions with [Mr B] and [Mr B] about how to progress the movement. The Tribunal does not accept that people connected with [Mr A] came to his house and work and threatened him and his family because the applicant was connected with [Mr B] or for any other reason. The Tribunal does not accept that the applicant delayed leaving India after the grant of his visitor visa because [Mr A] was in jail. The Tribunal does not accept that the applicant brought his wife and son to Australia because of threats to him and his family. The Tribunal does not accept that his friends and relatives suggested he run away from India until the scenario calms down and violence subsides. The Tribunal does not accept that he left India to save himself from the political goons and the government or from [Mr A] and people connected to him, or that he fears returning to India for the reasons claimed.
Does the applicant meet the refugee criterion?
In his protection visa application claims, the applicant claims that he fears returning to India because he is considered a challenge by the government because of his involvement with the PAAS movement and if he returns he will be imprisoned. Given the fact the applicant agreed in the Tribunal hearing that he had not experienced any problems with the police while he was in India, the Tribunal’s finding that the applicant did not experience any problems with the government more broadly and the Tribunal’s finding that the applicant was involved with the PAAS movement for a few months in 2015 and he remained in India for almost 12 months after he ceased his involvement and did not experience any problems during that time, the Tribunal does not accept the applicant’s claims. The Tribunal finds that the applicant does not face a real chance of serious harm arising from these circumstances.
In the interview with the delegate, the applicant claimed that he fears returning to India because of the threats to his life from [Mr A] arising from his connection to [Mr B]. In the Tribunal hearing, the applicant claimed that he fears threats from [Mr A] because he didn’t support him going into politics and [Mr A] might think the applicant can spoil his career. Given the Tribunal’s findings that the applicant did not experience any threats from [Mr A] or people connected to him in the almost 12 months between the applicant ceasing his involvement with the PAAS movement and the applicant leaving India, the Tribunal does not accept the applicant’s claims. The Tribunal considers that if [Mr A] intended to harm the applicant that he had the opportunity to do so, and would have done so, during that 12 month period after the rally and the Tribunal has found that he did not. The Tribunal’s view is strengthened by the applicant’s evidence in the Tribunal hearing, which the Tribunal accepts, that he has had no involvement with the PAAS movement or people involved in it since shortly after the rally, which now took place more than six years ago. In light of this, the Tribunal finds that the applicant does not face a real chance of serious harm arising from these circumstances.
The Tribunal has considered whether the applicant’s past involvement with PAAS would give rise to a real chance of serious harm if he returned to India in the reasonably foreseeable future. During the Tribunal hearing, the applicant was asked where he would live if he returned to India and he responded that he would live with his wife and son in Gandhinagar city in Gujarat state, which is where they live now. The Tribunal accepts this evidence. As discussed with the applicant during the hearing, country information indicates that India’s constitution protects freedom of assembly and the right to form associations and there is a high level of participation in politics in India. Leaders and members of opposition parties do not face official or societal discrimination on a day-to-day basis.[3] As also discussed with the applicant during the hearing, country information does not indicate that PAAS members or supporters are targeted or constrained in their political activities provided they comply with the law.[4] In respect of the applicant’s claims that members of PAAS were jailed, country information confirms that [Mr A], [Mr B], [Mr C] and others were charged and later imprisoned after the [August] 2015 rally on the basis that they were core leaders of PAAS and were involved in provoking the violence which occurred during and after the rally. Police had been recording calls between these people from July to September 2015 and monitoring social media after the rally.[5] Country information indicates that people involved with PAAS who have experienced problems are leaders and others involved in specific activities such as promoting violence, which have attracted the attention of the police at or around the time those activities took place. The Tribunal considers that had the applicant been involved in these activities he would also have come to the attention of the police and may have faced similar consequences. The applicant did not claim that he was involved in activities such as promoting violence and the evidence before the Tribunal does not support this. The applicant’s evidence, which the Tribunal accepts, is that he had no problems with the police while he was in India and the Tribunal has found that he did not experience problems with the police or the government in India as a result of his involvement with the PAAS movement. The Tribunal finds that the applicant’s past involvement with PAAS would not give rise to a real chance of serious harm if he returned to India in the reasonably foreseeable future and he does not face a real chance of serious harm arising from these circumstances.
[3] DFAT Country Information Report India, 10 December 2020, 3.91
[4] [References deleted]
[5] [References deleted]
During the hearing, the Tribunal asked the applicant whether he would get involved in the PAAS movement or politics if he returned to India in the reasonably foreseeable future. The applicant responded that he would not. He said he had not been involved in politics in the past apart from PAAS and is not interested in being involved in politics. The Tribunal accepts this evidence. Therefore, the Tribunal finds that the applicant does not face a real chance of serious harm arising from these circumstances.
The Tribunal has considered the document provided by the applicant with his protection visa application entitled ‘The Entire Episode of Patidar Movement’. This document is undated and indicates no source and the Tribunal does not accept it.
Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to India now or in the foreseeable future that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[6] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
[6] MIAC v SZQRB [2013] FCAFC 33
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 s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rachel Da Costa
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 5328

3 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice