1704871 (Refugee)

[2018] AATA 3456

1704871 (Refugee) [2018] AATA 3456 (21 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1704871

COUNTRY OF REFERENCE:                  India

MEMBER:Angela Cranston

DATE:21 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 21 August 2018 at 2:48pm

CATCHWORDS
Refugee – Protection visa – India – Religion – Christian– Fears persecution by Muslim extremists – Wife’s involvement in church activities – Practice and procedure – First protection application remitted back to the Tribunal – Further application for complementary protection – Credibility issues – Inconsistency between first and second protection application claims – Unaware of claims in first protection application – Wife returned to India – No ‘well-founded fear of persecution’ – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 48A, 65, 91R, 91S, 424A, 424AA, 499
Migration Regulations 1994, Schedule 2

CASES

SZGIZ v MIAC [2013] FCGC 71

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2.    This case has a complicated history. The applicant who claims to be a citizen of India first arrived in Australia on 29 November 2010 and applied for a protection visa on 3 December 2010 as his wife’s dependent. That application was rejected and the Department’s decision was affirmed on review.

3. The applicant lodged a second application on 13 March 2014 following the decision in SZGIZ where the Full Federal Court found that s48A did not prevent a non-citizen who had made a valid application on the basis of the refugee criterion in s.36(2)(b) from making a further application on the basis of the complementary protection provisions in s.36(2)(aa) whilst he or she remained in the Migration zone.

4. Again, the delegate refused to grant the visa on 16 October 2014 and the Department’s decision was affirmed on review. That decision was remitted back to the Tribunal on the basis that the applicant’s first protection visa application was only assessed against section 36(2)(b) of the Act, and the applicant was not barred from having his protection application assessed under section 36(2)(a) of the Act.

5.    In his second application, the applicant stated the following:

I arrived in Australia with my wife on 29 November 2010. I was born in a Christian Catholic family in India. I fear of persecution if I go back to India. I am a Christian minority in India and my wife was involved in KCYM and BCC. The Muslim radicals threatened to kill me. I will provide full statement later on.

The Muslims attacked me at my home and I was injured.

6.    Prior to hearing, the Tribunal wrote to the applicant as follows:

Your knowledge of your wife’s claims

You attended an interview with the Department of Immigration in September 2014. The Department's decision record indicates that you told the Department you prepared the application by yourself but your friend helped and that you understood all of the questions in the form and it was checked “to the best of your ability”. You also told the delegate that you did not know what claims were included in your first protection visa application because you were not in India when the incidents occurred.  You were also asked if you were making any additional claims apart from what was in your previous application. You stated that you did not know because your wife made the application.
This is relevant because the Tribunal may find that you displayed a minimal understanding of your wife's claims for protection made in the first application which may be indicative of the fact that you had no interest in the contents of the application. The Tribunal may also find that your inability to recall the details of those claims is indicative of fabrication. If the Tribunal finds that you displayed a minimal understanding of your wife's claims for protection made in the first application then subject to your comments the Tribunal would affirm the decision under review.
The additional claims in your protection visa application
At interview in September 2014 you were asked about your additional claims and what had happened to you. You stated that everything that had happened to you occurred at the church. When asked again about your claims and asked whether there was anything new or different that had happened to you or your wife that was not included in the previous application, you stated that there were no attacks against your wife or you apart from at the church. When advised that in your current written claims you had claimed that you were attacked and injured by Muslims at your home, you stated that there was no attack and only verbal abuse. When advised by the delegate that you had claimed that you were attacked at home and not at church, you did not respond.
This is relevant because the Tribunal may find your answers to the Department about whether there were any other attacks against you or your wife apart from at the church inconsistent with your application form that states that you were attacked and injured at home in India. If the Tribunal finds that your answers at inconsistent, then it may not find you credible and subject to your comments, it would not accept you were ever threatened or harmed with Muslim extremists or Muslim groups.

Your wife’s claims
You wife, who was the primary applicant in the first application and made claims to fear persecution at the hands of Muslim extremists, has returned to India.
You also told the delegate at interview in September 2014 that she is in hiding and you do not know where she is living. When asked by the Tribunal on 19 January 2015 if your wife had experienced any harm since she has returned to India, you stated you do not know. When asked why you had not contacted your wife's parents or family members to ask about your wife and children's whereabouts, you stated that you asked them for money for the visa, they refused to give it and after that time you severed contact with your wife's family.
This is relevant because the Tribunal may find that it is not credible that you and your wife would together seek protection in Australia and she would return to the place where she claimed to fear persecution, but that you would have no way of contacting each other or that you would not have contacted your wife's family members in an attempt to locate your wife and children in circumstances where you purportedly had no knowledge of where they are or whether they are safe. If the Tribunal finds that it is not credible, then subject to your comments, the Tribunal would affirm the decision under review. 

1. The applicant responded as follows in a document dated 15 May 2018:

   I would like to summarise my story quickly once again. [Town 1] is a small [town] whose population is predominantly a Muslim [community] is situated in the Trivandrum district of Kerala. About six years ago on [date] May 2009 my family was attending the mass at [church] in the morning. My wife is one of the active members in [church] activities. After the mass when she was at the church they were surrounded by some Muslim people and attacked. Between 2:30 pm and 3 pm the police shot and killed six Muslim [men] also injuring [several] others. [Sentence deleted]. However compared to the importance given to other such political events in the history of the state, [Town 1] received little attention the collective memory of political struggles in Kerala.

   This shooting incident in [Town 1] involved the residents of [another town], [an] area dominated by Latin Catholics, a prominent OBC (other backward classes) community among Christians. Latin Catholic and Muslim [communities] have lived in their respective neighbourhoods for quite a long time. Instances of past conflicts that occurred between them have been described as communal riots. I have attached a report which was published [in Newspaper 1] at that time.

   I was in [Country 1] that time and I was working [in a certain role]. As I mentioned in previous letter submitted in front of Federal Court. I had to quit that job and had come back to my place to protect my family. This violence had continued and we had to move from that place impulsively. We were advised by someone [that] better we could go outside India. We gave everything what we had and get visa for my family but that was not enough to pay the visa fee for my kids and mother-in-law. I was told by the visa agent that my wife and I could go first and find secure place and take my kids and mother-in-law later. We came to Australia on November 2010 and then my wife had to go back very soon because her mother died and the kids were alone. After that I tried to contact them many times but could not get hold of them.

   Please consider this letter as my final statement before making any final decision. With all due respect, my interpreters were not interpreting in correct sense of the previous courts. And I hope I could get a professional interpreter this time who can understand my feeling better.

   8.    Also enclosed was an article dated [September] 2009 from [Newspaper 1] entitled [deleted].

   9.    The applicant appeared before the Tribunal on 24 July 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malayalam and English languages. The applicant confirmed that he understood. He also confirmed that the hearing could proceed and his health was not an impediment.

   10.      The applicant stated his wife departed Australia five years ago and he could not reach her.

   11.      The applicant confirmed he came to Australia on 29 November 2010 with his wife and child. He stated his wife had returned to India because of her mother’s death and that the last time he spoke to her was 7 days after her mother’s death. He stated he had tried to contact her over the phone and had also asked people who went on holidays to try to find her. When asked about her family he stated her father and [sibling] had died before she returned to India in 2013 and her mother had died in 2013. He also stated he had no idea about her other family.

   12.      The applicant said he had completed his protection visa application in March 2014 with the help of a Church friend. He stated he told his friend the answers in Malayalam who then wrote the answers in English and he thought it should be correct. He also confirmed that he read and wrote English but said he could not understand very well.

   13.      The applicant stated that before he came to Australia he was in [Country 1] up until December 2009. He was then in India for about 6 months. He stated when he returned to India, he was in hiding, had no fixed address and no job because he was in fear of Muslims who were asking lots of questions.

   14.      The Tribunal put to him that in his application he stated that he had one address in Kerala where he had lived for 10 years. He said he did not know why that was.

   15.      The applicant stated he came to Australia because a lady had suggested it. When asked if there was any particular reason he stated it was because of an incident between Christians and Muslims at [Town 1]. He stated his wife was in the church and on [date] May 2009 after mass a group attacked the church around 2.30pm. He said the police came and shot six Muslims and [several] people were wounded.   When asked if anything happened to him, he stated he was in [Country 1] at that time and some Muslims came to his office and told him they were going to kill him but that  nothing else happened to him.

   16.      The Tribunal put to him that in his protection visa application he said that they threatened to kill him and he was injured when they attacked him at his home. He stated they broke his windows but nothing happened to him since he was not there.

   17.      The Tribunal put to him that the Department has said he said he prepared his application himself, that his friend helped and that he understood all of the form’s questions that had been checked to the best of his ability but that he also said that he did not know his wife’s protection visa application because they had been prepared by her. He stated that included the attack by Muslims in [Town 1]. The Tribunal put to him it was difficult to understand why he told the Department in September 2014 that he didn’t know that his wife’s claims even though he had told the Tribunal that he had not spoken to his wife since 2013. He agreed he could not now contact her but stated he came to Australia because of his wife’s case and there was no new case.

   18.      The Tribunal also put to him that he said that his wife had returned to India and he did not know what happened to her and that he did not know about her family but he told the department at interview that he had contacted his wife’s parents or family members and had asked them for money which they refused to give and after that time he had had no contact with them. He stated he did not ask for money.

   19.      The Tribunal put to him that in his protection visa application he had stated he had been living at a particular address for 10 years between June 2000 and October 2010. He stated that was not true and that was his wife’s house. The Tribunal also said to him that in his application he said that Muslims attacked his home and he was injured. He stated that happened when he was in [Country 1]. The Tribunal also put to him that he told the department that he did not know what was in his wife’s application but today he had said that there was an incident in a church but that the Tribunal was not sure how he knew that given that he did not know that when the department had spoken to him. He stated the attack happened in 2009.

   20.      The Tribunal put to him that the article in [Newspaper 1] he had provided in response to its letter did not talk about Muslims or Christians and did not appear to support his statement that Muslims had attacked Christians at Church on [date] May 2009.  The Tribunal put to him that DFAT had said that the largest number of Christians in India were Roman Catholics (17.3 million) and that there was a large number of Christians in Kerala and that Christians generally coexisted peacefully with members of other religious groups but that there had been some recent reports of right wing Hindus targeting Christians and Muslims for re-conversion. The Tribunal also said that DFAT said that there was a moderate risk of social discrimination and violence, although generally speaking most Christians could go about their lives without incident and there may not be a real chance of serious harm or a real risk of significant harm. He stated if someone wanted to take revenge, they did it from behind.  He also stated Muslims would come calmly at first and would harm them.  

   21.      The Tribunal also put to him he had stated in his submission that the interpreters were not interpreting correctly and he had not understood what the interpreter at Departmental interview was saying but it had listened to the Departmental recording and he had said he did understand the interpreter. The Tribunal also put to him that the Departmental interview flowed in a way that suggested he did understand. He stated only after he obtained the decision did he see there was a difference.

   22. The Tribunal then put that information to the applicant pursuant to section 424AA. He stated he could not remember. Following the hearing, the Tribunal again put that information pursuant to section 424A and the applicant responded stating that during the first hearing of the current case he thought the interpreter had said he had nothing more to produce but that he would like to add that the current situation at his native place was still agitated and the presence of police was heightened because there was a high chance of rioting.

   RELEVANT LAW

   23. 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

   24. 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).

   25.      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.

   26. 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.

   27.      There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

   28. 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.

   29.      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.

   30.      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.

   31.      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.

   32.      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.

   33.      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.

   34. 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.

   Country Information

   35.      According to DFAT’s Country Information Report India dated 15 July 2015:

   Christians
   3.26 According to the 2001 Census (latest figures available), approximately 24 million Indians identified as Christian, 2.3 per cent of India’s population at that time, making Christianity India’s third-largest religion.
   According to Indian Christian traditions, Christianity was brought to India by the Apostle Thomas in the first century CE, and a number of Indian Christian denominations are among the world’s oldest. From the late 15th century onwards, missionaries from Portugal and other European countries introduced Roman Catholicism to India. Protestant missions from Europe and America arrived from the beginning of the 18th century, and were particularly active during the period of British rule.
   3.27 The largest Christian denominations today are Roman Catholics (17.3 million); the Syro-Malabar Catholic Church (3 million); the Protestant Church of South India (4 million); and the Malankara Orthodox Syrian Church (2.5 million). Christianity is the majority religion in the small north-east states of Mizoram, Nagaland and Meghalaya, and also has a strong residual presence in the south Indian states of Goa, Kerala and Tamil Nadu. There have been a large number of prominent Christian Indians, including former and present Chief Ministers and State Governors.
   3.28 Christians have generally coexisted peacefully with members of other religious groups in India. However, in addition to the previously mentioned incidents of violence against church property and personnel, there have been recent reports that right-wing Hindu organisations allied with the BJP have begun conducting “homecoming” ceremonies, in which Christians and Muslims are “re-converted” to Hinduism (on the basis that Hinduism is their ancestral religion). Some participants in these ceremonies have allegedly been threatened with violence if they did not participate. Such incidents have raised considerable concern among some Indian Christians of an increasing atmosphere of religious intolerance in India.
   3.29 In totality, these incidents of violence represent a moderate risk of social discrimination and violence, although generally speaking most Christians can go about their lives without incident.

   Complementary protection criterion

   36. 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’).

   37. ‘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.

   38. 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.

   Section 499 Ministerial Direction

   39. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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

   40.      The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee Convention in India and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of his being removed from Australia to India, there is a real risk that he will suffer significant harm.

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

   42.      In his application for a protection visa the applicant stated that his wife was involved in the Kerala Catholic Youth Movement (KCYM) and was a Basic Christian Group Leader (BCC), that he was born Catholic and is part of a Christian minority and that Muslim radicals threatened to kill him. He also stated that Muslims attacked him at his home and he was injured. He also stated prior to hearing that about six years ago on [date] May 2009 his family was attending Mass and that after the mass they were surrounded by Muslim people and attacked and that between 2:30 pm and 3 pm the police shot and killed [several] Muslim [men] and injured [several] others.

   43.      However the Tribunal finds that when the applicant was interviewed by the Department in September 2014 he told the delegate that he did not know what claims were included in his and his wife’s protection visa application because he was not in India when the incidents occurred. The Tribunal finds that the applicant displayed at Departmental interview a minimal understanding of his wife’s claims for protection as articulated in her protection visa application which is indicative of the fact that he had no interest in the contents of that application. When this was put to him at hearing he stated that his wife was in the church when it was attacked however he was unable to explain how he knew that given that he was not able to tell that to the Department in September 2014 and told the Tribunal that he had had no contact with his wife since seven days after her mother’s death in 2013.

   44.      The Tribunal finds the applicant’s inability to tell the Department at interview what was in his and his wife’s initial protection visa application is indicative of someone who does not know the contents of or who is not interested in the contents of that application because the events described therein have not in fact occurred. In reaching this conclusion the Tribunal has considered the newspaper article in [Newspaper 1] about events that occurred on [date] May, however that article does not refer to a church, Christians or Muslims but talks about communal tensions and distrust that has developed in the wake of criminal activities of antisocial elements and the Tribunal is not satisfied that this article does disclose that a church was attacked on [date] May by Muslims.

   45.      In addition, the Tribunal finds that at interview in September 2014 the applicant was asked if anything had happened to him and that he had stated that everything that had happened to him had occurred at the church. The Tribunal also finds that when advised that in his written protection visa application he had stated that he was attacked and injured by Muslims at his home he stated that there was no attack and that there was only verbal abuse. The Tribunal finds that the applicant’s answers at interview and hearing in relation to whether he was attacked and where he was attacked have continued to change with each telling, that is in his second protection visa application he said that he was attacked at his home and injured however he told the Department at interview that apart from the church there were no other attacks against he or his wife. He then told the Tribunal at hearing that he had been threatened and attacked in [Country 1]. In addition the Tribunal also finds that the applicant’s answers in relation to where he lived when he returned from [Country 1] has changed, that is in his second protection visa application he stated he lived at one address from June 2000 until October 2010 but at hearing he stated he was in hiding and had no fixed address. Given the changing nature of the applicant’s evidence in relation to where and if he was attacked, the Tribunal is not satisfied that the applicant was attacked by Muslims at church or his home or that there was any abuse or that he was injured. Neither is the Tribunal satisfied that he was attacked in [Country 1]. In reaching these conclusions, the Tribunal has considered the applicant’s submission that his previous interpreters were not interpreting correctly however when initially asked at hearing, he stated his protection visa application should be correct and at Departmental interview on 30 September 2014 the applicant stated that he understood the interpreter. Given this, the Tribunal does not accept that there was an interpreter problem either when his second protection visa application was made or at departmental interview. Neither does the Tribunal accept that the inconsistencies in his evidence can be explained on the basis of interpreter error.   

   46.      In sum the applicant was unable to provide details of his wife’s application at departmental interview and his evidence in relation to what has happened to him has continued to change. The Tribunal does not accept that the applicant’s wife or he was threatened or harmed by Muslim extremists or Muslim groups or anyone else. While the applicant has stated that his wife has returned to India and he does not know her whereabouts, the Tribunal is not satisfied that the applicant has provided consistent evidence in relation to whether her family was alive or whether he has contacted her family in an attempt to find her. In reaching this conclusion the Tribunal considers that the applicant gave inconsistent testimony in relation to his wife’s family, that is at departmental interview the Tribunal finds he told the department that he had not contacted his wife’s parents or family members to ask them about his wife’s whereabouts because he had asked them for money and they had refused to give it and after that time he had severed contact with them however he told the Tribunal that all of her known family had died. The changing nature of the applicant’s testimony and the lack of credibility in relation to the applicant not contacting known family in an attempt to locate his wife is such that the Tribunal does not accept that the applicant does not know where his wife is or the inference that he has been unable to contact her because she has had some mishap or misadventure.

   47.      While the Tribunal accepts that the applicant is Catholic and Christian, the Tribunal does not accept that he will face serious harm if he returns to Kerala in the foreseeable future. In reaching this conclusion the Tribunal has considered the applicant’s submission that there are riots and police and there is a high chance that something could happen at any time. However, the Department of Foreign Affairs and Trade’s country information report for India dated 15 July 2015 states that the largest Christian denominations today are Roman Catholic (17.3 million) and that Christianity has a strong residual presence in the South Indian state of Kerala. DFAT also states that Christians have generally coexisted peacefully with members of other religious groups in India however there have been recent reports the right wing Hindu organisations conduct homecoming ceremonies in which Christians and Muslims are reconverted to Hinduism. DFAT also states that incidents of violence represent a moderate risk of social discrimination and violence although generally speaking most Christians can go about their lives without incident. The Tribunal prefers this report over the applicant’s speculative comments of future harm.

   48.      For the reasons given above, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm because of his religion in the reasonably foreseeable future. The Tribunal does not accept that he has a well-founded fear of being persecuted for one or more of the refugee reasons if he returns to India now or in the reasonably foreseeable future. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention.

   49. 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). On the basis of the applicants' lack of credibility, the Tribunal has rejected the applicant's claims of past violence but accepts that he is a Catholic and Christian. Given the DFAT report, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to India, there is a real risk he will suffer significant harm. Accordingly, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa).

   50.      Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

   DECISION

   51.      The Tribunal affirms the decision not to grant the applicant a Protection visa.

   Angela Cranston
   Member