1704954 (Refugee)

1704954 (Refugee) [2017] AATA 1312 (20 July 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1704954
COUNTRY OF REFERENCE:                  India
MEMBER:David McCulloch
DATE:20 July 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 July 2017 at 3:50pm

CATCHWORDS
Refugee – Protection visa – India – Social group – Family member of police officer – Threats from criminal – Credibility issues
LEGISLATION
Migration Act 1958, ss 5(H), 5(J), 5K-LA, 36, 65, 116, 424AA, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155 at 169-70
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] March 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 [in] February 2016.
The applicant appeared before the Tribunal on 2 June 2016. The applicant was assisted by an interpreter in the Punjabi language. The applicant was represented by his registered migration agent.
During the hearing the Tribunal took evidence by telephone from the applicant’s father [who] was in India.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36 (2) (a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection of the will to Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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. The Tribunal has before it DFAT Country Report – India, 15 July 2015, a copy of which was given to the applicant’s representative in the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and of [his father] and whether, on the accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background and claims
The applicant arrived in Australia [in] January 2016 on a [temporary] visa. The application for a Protection visa was lodged [in] February 2016.
[In] December 2016 the applicant was charged by [police] with ‘[offence]’ which had been amended to ‘[offence]’. [In] April 2017 the applicant’s Bridging Visa was cancelled under s.116(1)(e)(i) of the Act on the basis of the applicant being a risk to the health, safety or good order of the Australia community or a segment of the Australian community. [In] May 2017 the applicant was detained pursuant to s.189 of the Migration Act. An application for a further Bridging visa was refused [in] May 2017.
The application forms for the Protection visa indicate the following. The applicant was born on [date] in Haryana, India. The applicant has never been married. The applicant lists both parents and a [sibling] living in India. The applicant lived at one address in [Punjab], from [date] until July 2015. From July 2015 until December 2015 the applicant lived [in] Haryana. The applicant completed year [grade]. The applicant has never worked and has been supported by his father.
The applicant’s claims for the Protection visa set out in the application form follow:
My father [is] a police officer and earned the wrath of criminal gangs in Punjab who have well connected criminal network in other parts of India. My father once worked as the police security officer for [a certain person]. Due to his activities, he arrested many criminals despite his activities, most of the time; the criminals were released on the instruction of the politicians. [Mr A] is one of those criminals. He was charged for many criminal cases and my father was the one who was behind this. [Mr A] has avoided his arrest despite having many cases against him due to his criminal and underworld gang's connections and political connections. He became angry on my father and [in] July 2015, when I went to the market [Mr A] and his criminal companions tried to kidnap me and beat me and warned that he would take revenge against my father. Fortunately, I escaped from possible kidnap. In another occasion, [Mr A] tried to abduct me and fortunately I escaped from that. After that I left the village and went to my parental village and started there in [Haryana]. Despite moving there, [Mr A] found my place and visited the house and threatened my relatives to give me to them. My relatives told them that I left the house and [Mr A] left the place with his colleagues. After that, on my father's advice I decided to leave the country. My father told despite being a police office, he is unable to protect me and said that the criminal gang is so powerful and they have connections with other criminal gangs in other places as well. I fear if I returned to India, I would be abducted, tortured and killed by the criminal gangs to take revenge against my father. I fear I can not get protection because the criminal network is so powerful. See my detailed statement to follow. [No further statement was provided]
The applicant’s representative provided submissions to the Tribunal in advance of the hearing. The submissions indicated that the applicant would be targeted by members of criminal gangs to take revenge against the applicant’s father. It is submitted that criminal gangs operate in a number of states of India including the Punjab and Haryana. It is submitted that the applicant would face a real risk of significant harm if he returned to India due to his profile as ‘family members of police officers involved in criminal gangs.’
A statement is provided from the applicant’s father [who] indicates that he is posted as [a certain rank]. He indicates that he was assigned the task of bringing prisoners from jail to court for trial and back to jail. During this time he took [Mr A] to court many times. This person is from [the applicant’s father]’s village. He is a hardened criminal with many cases against him including robbery, murder and arms issues. [Mr A] asked [the applicant’s father] to free him which [the applicant’s father] refused. [Mr A] threatened to harm the applicant, to have him kidnapped or murdered. [Mr A] was aware of the school that the applicant went to and what year he was in. [Mr A] absconded from police custody but [the applicant’s father] was not on duty that day. After that, [Mr A] attacked the applicant while he was on his way to school. The applicant cried out. Many people were assembled as it was school time. The applicant escaped.
After that, the applicant was left with relatives but [Mr A] attacked his son there also. During this time, [the applicant’s father] was on medical leave and was unable to give protection to the applicant. The applicant was sent to Australia to save his life. [The applicant’s father] could not accompany the applicant due to his illness. Instead he sent his wife.
The applicant’s representative provided a number of media reports concerning the activity of criminal gangs and gang wars in India, including in the Punjab and in Haryana. The reports indicate that gangs are responsible for various crimes, including killings and are a challenge for the government.
Hearing, credibility, findings and assessment
In considering overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of India and his claims will therefore be assessed against India.
The Tribunal has numerous and significant credibility concerns with the applicant’s claims to have been attacked, searched for, and threatened by [Mr A] or associated criminals or gangs or that there is a vendetta against the applicant’s police officer father that creates a risk of harm to the applicant.
Firstly, there are inconsistent accounts as to where the applicant was attacked by [Mr A] and his colleagues [in] July 2015. In the hearing, the applicant confirmed his written statement that he was in the market when the attack happened. In the hearing, the applicant said that it was not a school day. The incident occurred on a Saturday at about 4pm. In contrast, [the applicant’s father] gave evidence that the attack happened while the applicant was riding his bike to school.
The Tribunal notes that [July] 2015 was a Wednesday.
In response to this inconsistency in the hearing, the applicant indicated that he lacks maturity (implying that this could affect his memory). He said that he was at the market but, in fact, on his way to school.
In the written response following the hearing the applicant said that he mistakenly told the Tribunal that the incident happened on a Saturday. He knew that it happened at the market because he went to the market before going to school. The applicant asked the Tribunal to consider his mental state due to the events that happened to him. The applicant indicates that he is seeking medical help in detention and requests that the Tribunal to contact detention officials to obtain documents relating to the applicant’s health issues.
Subsequently, the applicant provided to the Tribunal a report of a Mental Health Consultation undertaken by a psychologist at [the detention centre]. The report is dated [June] 2017. The report provides no diagnosis. It indicates that the applicant reports ruminating and worrying about his future. It reports that he goes to bed early when he is feeling stressed and stays in bed. He is more stressed after speaking on the phone with his family. He was advised of the importance of social support. Praying helps the applicant. Relaxation techniques were discussed with the applicant.
The report does not diagnose any psychological condition that would support a claim of significant impairment by the applicant in providing responses to key details of his claims in the hearing. The Tribunal can well appreciate that the applicant may be uncertain and stressed as a result of both his detention and as to the outcome of his Protection visa application. However, anxiety and stress of that nature is in a different category than a psychological condition that would affect the ability of the applicant to recall key details of his claims. The Tribunal also notes that at the commencement of the hearing the applicant indicated that he had no difficulties in answering the Tribunal’s questions.
The Tribunal is not satisfied that psychological conditions of the applicant explain the discrepancy in relation to this evidence or other credibility concerns identified in this decision.
The Tribunal does not accept the applicant’s other explanations as to the inconsistencies in evidence as to the surrounding circumstances of this attack. Being attacked, as claimed, would be an extremely impactful event, and the Tribunal does not consider that the applicant would be confused as to the surrounding circumstances, including whether he was on his way to school or not, or whether it occurred in the morning or in the afternoon.
The Tribunal does not accept the applicant’s explanation that he was at the market but, in fact, on his way to school as true. This directly contradicts the applicant’s initial account that the attack did not happen on a school day. It does not make sense that the applicant would be on his way to school at 4pm. The Tribunal considers that this was a constructed claim to seek to explain inconsistency.
The Tribunal does not think the applicant’s age would prevent him remembering or be so confused in relation to the surrounding details of such an impactful event.
The stark inconsistencies in relation to the surrounding circumstances of the claimed attack [in] July 2015 are undermining of the truth of the applicant’s claims.
Secondly, the applicant has provided inconsistent evidence as to on how many occasions he was attacked by [Mr A] in his home area. The Tribunal asked the applicant in the hearing if there was any other incident in his home area involving [Mr A] after the incident [in] July 2015, prior to him going to live with his relatives for his safety. The applicant said that there was not.
In contrast, the applicant’s written claims indicate that there was a second incident in his home area in which [Mr A] tried to abduct him. In response to this inconsistency in the hearing, the applicant indicated that he was, in fact, referring to the incident where [Mr A] came looking for him at his relatives home. The Tribunal notes that the wording of the applicant’s written claims (which were prepared with the assistance of his representative) clearly state that there was a second incident in his home area, before he moved to his relatives. The applicant then responded in the hearing that [Mr A] did subsequently come looking for him at his home and spoke to his mother. The Tribunal noted to the applicant that he made no mention of that in prior questioning as to other events involving [Mr A] after the [July] 2015 incident, but prior to him leaving for his relatives. The applicant responded that he was only answering specifically what he was asked.
In the written response provided following the hearing the applicant claimed that his father is suffering from an illness to explain the fact that he did not mention the second incident either. The applicant refers to his mental health issues which caused him to forget the second incident.
As indicated, the Tribunal is not satisfied there is any evidence that the applicant is suffering from significant mental health issues that would explain inconsistencies in evidence.
The Tribunal considers that the applicant has been inconsistent on this issue and does not accept his explanations. The written claims make clear that there were two incidents involving [Mr A] in his home area. The Tribunal fully explored with the applicant in the hearing incidents affecting him involving [Mr A] prior to him leaving for his relatives. The Tribunal does not consider that the applicant would have failed to have mentioned, in exploring difficulties from [Mr A] in this period, a subsequent visit looking for him at his home and talking to his mother. This would be a very important incident. In any event, the claim of this visit by [Mr A] remains different from the written claims in which the applicant indicates that there was another attempt to abduct him from which he escaped. The Tribunal considers that the applicant’s explanation of the visit by [Mr A] to his home and talking to his mother a constructed claim to seek to explain the inconsistency.
Thirdly, the applicant and his father gave conflicting evidence as to the timing of the visit by [Mr A] looking for the applicant at the home of his relatives. The applicant indicated that this occurred about a week after he moved there. In contrast, [the applicant’s father] indicated that this attack occurred a month after the applicant moved to his relatives, give or take a few days.
In response to this inconsistency in the hearing, the applicant referred to his father having been unwell and this affecting his recollection. He also indicated that his father might not have remembered because he was distant from what occurred. In the written response provided following the hearing the applicant indicated that his father did not know exactly when [Mr A] came.
The Tribunal does not accept that the applicant’s father would not have a reasonably good idea as to how soon [Mr A] came looking for the applicant at the home of his relatives. The Tribunal considers that the issue of his son’s safety would likely be a paramount concern and the timing of this incident would be impactful and stay in the applicant’s father’s mind.
The Tribunal has taken note of claims of illness of the applicant’s father affecting his memory. However, if the applicant’s father had been unclear as to the timing because of any illness the Tribunal considers that he would have told the Tribunal that he could not remember the timing of this event. The Tribunal is not persuaded that illness by the applicant’s father is the reason for inconsistency.

Fourthly, the applicant has been inconsistent in evidence as to whether his relatives told [Mr A], when he visited looking for the applicant, that the applicant had been staying there. The applicant’s written claims indicate that his relatives told [Mr A] that the applicant had left the house (suggesting that he had been there). In contrast, in the hearing, the applicant indicated that his relatives had denied that he had been living there. In response to this issue in the hearing, the applicant indicated that it was when [Mr A] visited these relatives after the applicant had come to Australia that they told him that the applicant was not living there.
The Tribunal does not accept this explanation. The written claims are clear that the relatives told [Mr A], when he first visited looking for the applicant, that the applicant had left, not that he had not been living there. The Tribunal acknowledges that this is a point of reasonably minor detail. Whilst not a major inconsistency but does buttress more significant credibility concerns.
Fifthly, claims of the applicant facing a real chance of serious or significant harm from [Mr A], or criminals or gangs associated with him, are not consistent with the failure by the applicant to suffer any difficulties in the more than five months he stayed with his relatives until he came to Australia, after the visit by [Mr A] looking for the applicant at this location.
The Tribunal put to the applicant in the hearing that it did not make sense, if [Mr A] knew that he was living with his relatives and wished to harm him, why he could have not done so sometime between his first visit to the home of his relatives in July 2015 and December 2015, when the applicant was living there. The applicant had also indicated in the hearing that associates of [Mr A] were watching the house. This emphasised to the Tribunal that [Mr A] would have known that the applicant was living there and taken further action against the applicant if he had wished to harm him.
In response, the applicant indicated that he stayed inside all the time. The Tribunal does not accept that the applicant staying inside all of the time would have dissuaded the criminal and violent [Mr A] or his associates to enter the house and take action against the applicant if there was mission to harm him as a vendetta against his father.
The lack of any difficulties suffered by the applicant from the first visit by [Mr A] until December 2015, during which time the applicant remained living with his relatives, is undermining of claims that the applicant is at real chance of serious or significant harm from [Mr A] or his associates.
Sixthly, it would seem very likely that if [Mr A] had a vendetta against the applicant’s father, and could not find the applicant to harm him to take revenge on [the applicant’s father], that [Mr A] would have inflicted direct harm on the applicant’s father, or on the applicant’s mother or [sibling] instead. As it was, the applicant gave evidence in the hearing that the remainder of his family had suffered no problems from [Mr A] or his associates. It was explained that the applicant’s [sibling] and mother stayed at home to avoid difficulties. The Tribunal does not consider that this would prevent them being harmed, particularly noting evidence by the applicant that [Mr A] had visited the family home on one occasion and talked to his mother. Further, the Tribunal has plausibility concerns that the mother and [sibling] would never leave their home. There remains the fact of [the applicant’s father] himself suffering no difficulties from [Mr A] or his associates.
The failure of the remainder of the applicant’s family to suffer any difficulties from [Mr A] or his associates is undermining of claims that the applicant himself is at threat.
Seventhly, the applicant and his father have given inconsistent evidence as to the circumstances in which [Mr A] escaped from detention prior to the applicant being attacked [in] July 2015. The applicant gave evidence in the hearing that [Mr A] escaped from prison during a riot. In contrast, [the applicant’s father] gave evidence that he escaped from court. Further, the applicant indicated that he escaped about a week before the incident [in] July 2015. In contrast, [the applicant’s father] indicated that it was a month before.
As noted, the applicant has claimed that his father could be confused because of his illness. The Tribunal considers that, if the applicant’s father was confused, he would have said this to the Tribunal rather than providing specific circumstances for the escape and its timing.
In the written response provided following the hearing the applicant indicated that the applicant was not present at the escape and that he only heard that [Mr A] had escaped and was not sure where he escaped. That does not explain why the applicant would not have told the Tribunal that he did not know where [Mr A] escaped from rather than telling it that he escaped from prison.
Eighthly, if there had been a risk of harm from [Mr A], evidence by the applicant’s father in the hearing that [Mr A] is now in detention could suggest that there is no longer a risk of harm to the applicant from this person. [The applicant’s father] gave evidence to the Tribunal that [Mr A] was recaptured six or seven months after he escaped (ie. around the end of 2015). [The applicant’s father] indicated, however, that [Mr A] is still a risk to the applicant because he is always escaping from custody and might escape again. The evidence of the applicant’s father that [Mr A] is in detention was put to the applicant in the hearing pursuant to the procedural requirements of s.424AA of the Act as undermining of claims that the applicant faces a real chance of serious or significant harm from [Mr A]. The applicant elected to provide a written response. In that response it is indicated that [Mr A] has very significant issues with the police as a dreaded criminal. He has a criminal network with political connections. Politicians passively support criminal gangs to establish that power. [Mr A] is able to come and go from prison due to his political connections. Even if the applicant returns, [Mr A] will soon come out of prison and target the applicant for revenge. The applicant’s father is sick and will not be able to protect him and the police have connections with criminal gangs.
The Tribunal accepts this response as to why the applicant may still be in danger from [Mr A] even if he is in prison if, indeed, [Mr A] does have a specific desire to harm the applicant to get back at the applicant’s father.
The Tribunal considers the issue of a request by the applicant at the beginning of the hearing to provide further documents following the hearing in support of his claims. The applicant indicated that he wished to provide further documents concerning allegations against [Mr A] and the police reports in relation to the incidents that he faced. He indicated that these would take a month to provide. The Tribunal indicated it would consider the provision of these documents later in hearing.
At the end of the hearing, the Tribunal noted that the applicant had had a long period from making the application for the Protection visa to provide these documents, and asked why they had not previously been provided. The applicant indicated that it was because his father was unwell. The Tribunal was not satisfied in the hearing that this explained the delay. [The applicant’s father] was a police officer and would have had ready access to official documents relating to [Mr A] and incidents involving the applicant. He had had the capability to provide a written statement to the Tribunal and to give oral evidence. The Tribunal notes that the applicant’s mother travelled with him to Australia to facilitate his Protection visa application and the Tribunal saw no reason why she could not have facilitated the provision of relevant documents, if the applicant’s father was unable to.
At the end of the hearing the Tribunal indicated that it would not be providing the applicant with time to provide documents. In making this comment, the Tribunal was referring to providing an additional month to provide the documents which the applicant indicated was needed at the commencement of the hearing. In other words the Tribunal was not prepared to wait to finalise its decision to receive the documents.
As indicated in the hearing, the Tribunal also took into account, in not allowing extra time for the provision of documents overall credibility concerns with the applicant’s claims that the Tribunal had assessed by the end of the hearing, a number of which were put to the applicant for explanation. Those concerns were so seriously undermining as to the truth of the applicant’s claims that the provision of official documents would not likely overcome those concerns in light of the ready ability to obtain fraudulent documents in India, as set out in the DFAT report as provided[1], as noted to the applicant in the hearing.
[1] DFAT Country Report – India, 15 July 2015, para.5.27-5.28
On 12 June 2017, 10 days after the hearing, the applicant’s representative provided untranslated documents and requested 21 days to have the documents translated. Given that those documents were provided prior to the Tribunal finalising its decision, the Tribunal agreed to the time period requested to have the documents translated.
In addition, the applicant indicated that he had not provided the documents previously as he did not think that his hearing would occur as early as it did and thought that he had another eight to ten months to obtain the documents. He also referred his father being sick in India. The applicant indicated that the Tribunal, in stating in the hearing that it would not accept documents, was in breach of its obligation to accept any documents up until the time it made its decision. He indicated that the Tribunal had already formed a negative view on the case and therefore the Tribunal would not consider any documents provided since it had already formed an adverse view which was contrary to the applicant’s basic right to produce documents before the Tribunal makes the decision. He claimed that the Tribunal conducted hearing with a closed mind and already decided to refuse the applicant’s case.
In a subsequent submission the applicant indicated that the statement by the Tribunal in the hearing that it would not accept documents greatly influenced his evidence during the course of the hearing.
In relation to this last point, the Tribunal notes that it was only at the very end of the hearing that the Tribunal indicated that it would not allow additional time to provide documents. Therefore, the applicant had given his substantive evidence prior to this statement being made and therefore the statement could not have upset the applicant such as to affect the giving of his evidence. At the beginning of the hearing, the Tribunal indicated it would consider the request to provide the documents in a month’s time at a later point in the hearing.
The Tribunal acknowledges that it had an obligation to consider all documents provided by the applicant prior to making its decision. As indicated, in stating at the end of the hearing that the Tribunal would not provide time for the provision of documents it was stating this in the context of not delaying its decision to wait for documents in a month’s time.
The Tribunal had assessed by the end of the hearing many of the numerous credibility concerns identified in this decision which it considered significantly ‘poisoned the well’ of the applicant’s claims. In light of the ability to readily obtain fraudulent documents in India the Tribunal considered it unlikely that any documents provided by the applicant would overcome the significant cumulative impact of those credibility concerns. However, in saying that, the Tribunal was not ultimately closed to considering with an open mind any documents that might have be provided prior to making its decision, even if the many concerns created a significant credibility bar that the documents would need to overcome.
Translated documents were provided by the applicant on 12 July 2017. The documents contain three First Information Reports. One of the reports relates to [Mr A] escaping from police custody with complicity from officers [in] February 2015. There is a First Information Report dated [October] 2010 which sets out an incident where there was an attack perpetrated by individuals on motorbikes. It is not clear how this relates to the applicant’s claims. Although it is not clear, the Tribunal is willing to accept that one of alleged perpetrators is [Mr A]. Another First Information Report outlines an event [in] December 2015 which appears to allege [Mr A] being found with an illegal pistol.
These documents are consistent with claims of [Mr A] escaping from custody in February 2015 and of being allegedly involved in criminal acts. There is no reference in the documents to the claimed incidents involving the applicant and [Mr A] nor do the documents provide any indication that the applicant is at risk from [Mr A].
The first seven credibility concerns, considered cumulatively, are seriously undermining as to the truth of the claims by both the applicant and [the applicant’s father]. Those credibility issues result in the Tribunal not being satisfied as to the substantive claims made by them both as to the basis on which the applicant faces harm.
The limit of the Tribunal’s belief of the applicant’s claims is that [Mr A] is a known criminal in the applicant’s area who escaped from prison in February 2015. The Tribunal is prepared to accept that the applicant’s father is a police officer and had some interaction with [Mr A] in that capacity.
However, considering all the evidence, and the seven credibility concerns identified, the Tribunal is not satisfied that the applicant’s father was subject to a vendetta by [Mr A] or criminals or gangs associated with him which involved a focused desire to harm the applicant as revenge on the applicant’s father. The Tribunal is not satisfied that [Mr A] told the applicant’s father of his intention to harm the applicant. The Tribunal is not satisfied that [Mr A] or his associates attacked the applicant [in] July 2015, tried to abduct him on another occasion in his village, visited the applicant’s mother in his village and spoke to his mother, or visited and threatened relatives where the applicant was subsequently staying looking for the applicant, or visited and those relatives looking for the applicant after the applicant came to Australia. The Tribunal is not satisfied that [Mr A], or associated criminals or gangs, have an intention to harm the applicant should he return to India.
Given those findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed. Absent the risk from [Mr A] or associated gangs to take revenge on the applicant’s father, the Tribunal does not have independent evidence before it that would establish that relatives of police officers in India face a real chance of serious or significant harm from criminal gangs merely because of that relationship. The Tribunal is therefore not satisfied that the applicant faces a real chance of serious or significant harm from criminal gangs simply on the basis of being a relative of a police officer.
In summary, in relation to the refugee criterion, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a refugee criterion reason, for any of the reasons claimed, or for any other reasons.
In summary, in relation to the complementary protection criterion, 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 for the reasons claimed, or for any other reasons.
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.
David McCulloch
Member to the

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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2017] AATA 1312

20 July 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction