1706465 (Refugee)

1706465 (Refugee) [2021] AATA 4315 (18 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1706465
COUNTRY OF REFERENCE:                   India
MEMBER:Damian Creedon
DATE:18 August 2021
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 18 August 2021 at 3:57pm
CATCHWORDS
REFUGEE – protection visa – India – imputed political opinion – perceived heir to family’s political dynasty – association with Congress party – politically motivated violence – ineffective state protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 17 March 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
Background
The applicants are citizens of India. The primary applicant, the first-named applicant (applicant), arrived in Australia [in] July 2007 holding a Student [visa]. The applicant was granted further temporary visas between 2008 and 2015.
The applicant applied for a protection visa on 11 June 2015.
Protection visa application
In his protection visa application and supporting materials the applicant claims to fear returning to India on account of threats he has received due to [various members of his family] having held elected office in India as a members of the Congress party, although [one of the relatives] has since switched his affiliation to the Bahujan Samaj Party (BSP).
The delegate refused to grant the visa on 17 March 2017 on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
The applicant applied for a review of the delegate’s decision.
Application for review.
The applicant appeared before the Tribunal (substantively) on 21 April 2021 and 26 July 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. The applicant was represented in relation to the review. His representative attended the hearing on 21 April 2021, but not the hearing on 26 July 2021.
Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.
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.
Country information
The applicant claims to fear violence as the perceived heir to a (minor) political dynasty in his home city of [City 1]. His claim for protection turns upon his assertions of persecution on account of his perceived political opinions as a member of that family. It is convenient to outline the relevant country information available to the Tribunal before considering the applicant’s evidence.
[City 1]
[City 1] is a city in north-western Uttar Pradesh state, northern India. [Geographic details redacted]. Encyclopaedia Britannica records that:
[Information deleted].[1]
[Committee 1]
[1] [Source deleted].
The focus of the applicant’s family’s political activity has been [a local committee in City 1] ([Committee 1]). The [Committee 1] is an administrative body within the Indian [central government] comprising ex officio and nominated representatives from the [government officials] stationed at [City 1], and elected members from the civilian population within its jurisdiction.
According to its website, [Committee 1] is:
[Information redacted].[2]
[2] [Source redacted].
[Committee 1]’s jurisdiction covers some [number] hectares of land with a total population of [number] comprising a civil population of [number] and a military population of [number] (as at the 2011 census).[3]
[3] Ibid.
As presently constituted [Committee 1] consists of six ex officio/nominated members and eight elected members. Each elected member represents a “Ward”. The Tribunal notes that the current elected member from “[specified Ward]” is the applicant’s [Relative A].[4] [Relative A] is presently serving as [Position 1] of [Committee 1].
Political landscape in India
[4] [Source redacted].
The DFAT Country Information Report for India dated 17 October 2018 describes India as having “a diverse political landscape, which represents different ethnic, religious, secular and political interests”.[5] The Republic of India is a federal constitutional democracy made up of 29 states and seven unions. The Constitution divides powers between the central government and the states with some areas of shared responsibility. There are also local governments. According to the Commission of India, India has more than 2000 registered political parties representing diverse political, ethnic and religious interests. Many of the parties have a regional focus.[6]
[5] DFAT Country Information Report for India dated 10 December 2020 at para [3.82].
[6] DFAT Country Information Report for India dated 10 December 2020 at para [2.55].
Since independence, politics in India has been dominated by the Congress Party however in the 2014 general election the BJP, a Hindu nationalist party, formed government in coalition and were again successful in the May 2019 elections. The various states of India have different political dynamics.
Political landscape in Uttar Pradesh
A recent article from the Carnegie Endowment for International Peace, entitled ‘As Uttar Pradesh Goes, So Goes India’, highlights the moving political landscape of Uttar Pradesh, stating that:
[Uttar Pradesh] has outsize electoral influence: accounting for eighty seats (out of 543 in India’s lower house of parliament, the Lok Sabha) and home to roughly 230 million residents, Uttar Pradesh (UP) is the single biggest prize in this spring’s national election. For both the ruling Bharatiya Janata Party (BJP) of Prime Minister Narendra Modi and a bevy of opposition forces, the state is make or break.
The article goes on to note that:
For the past few decades, political competition in UP has centered around two regional, caste-based parties—the [Bharatiya Janata Party (BSP)] and the [Samajwadi Party (SP)]. The BSP, founded by Dalit activist Kanshi Ram in 1984, is dedicated to uplifting India’s historically disadvantaged communities—Scheduled Castes (SCs), also called Dalits and formerly known as untouchables; Scheduled Tribes (STs), also termed Adivasis; and the Other Backward Classes (OBCs). In particular, the party has rallied to the cause of Dalits, a Hindu community of lower castes considered so impure that it did not even figure into the formal caste hierarchy. Since 2003, the party has been run by Kanshi Ram’s protégé, Mayawati, a four-time chief minister of UP.
For more than a quarter century, the BSP has jockeyed for political space with the SP. The SP initially formed as a splinter group of the Janata Dal—a center-left party that headed the central government between 1989 and 1991 before fracturing nearly a decade later. Like many Indian political parties, it is a dynastic party dominated by a single family. The party’s founder, Mulayam Singh Yadav (the family patriarch), is a veteran OBC leader from UP who has thrice served as the state’s chief minister. Between 2012 and 2017, Mulayam’s son Akhilesh Yadav served as UP chief minister, and he currently serves as party president. Today, all five members of parliament from the SP are members of the Yadav family.
The national parties—the BJP and the Congress—have been minor players in UP’s politics in recent years. After dominating UP for four decades after independence, the Congress Party’s fortunes have steadily declined (aside from a few moments of temporary resurrection, such as in 2009, when it captured twenty-one of UP’s eighty Lok Sabha seats). The last time a Congress chief minister presided over UP was in 1989. The BJP’s trajectory has been much more complicated. The party came to power twice in the 1990s on the back of pro-Hindu nationalist sentiment, but then vanished until 2014, when the Modi wave propelled its electoral sweep of the state’s parliamentary seats. Three years later, the party stunned political observers by securing a three-fourths majority in the state assembly on account of Modi’s unparalleled popularity. For the first time in fifteen years, the BJP claimed the government of India’s most populous state.
Shocked by the BJP’s sudden rise, the BSP and SP were compelled to join hands. In 2018, the two parties announced that they would contest Lok Sabha bypolls in Gorakhpur and Phulpur together in a concerted effort to keep the seats out of the BJP’s hands. They won both seats handily—an embarrassment to the BJP and its newly installed chief minister, Yogi Adityanath. [7]
[7] Vaishnav, M; Hintson, J; Carnegie Endowment for International Peace, As Uttar Pradesh Goes, So Goes India, (accessed 18 August 2021).
In respect of the 2019 Indian national elections, DFAT notes that:
In May 2019, securing a second election victory, Modi became the first non-Congress prime minister in India to return to power after a full five-year term. Official data from the Election Commission showed Modi's BJP winning 303 of 543 seats (up from the 282 it had won in 2014). The BJP formed government along with its National Democratic Alliance (NDA) partners, with the alliance winning 352 seats in total. The opposition Congress party won 52 seats in 2019, after having been reduced to 44 seats in 2014, its lowest ever performance at an election.[8]
[8] DFAT Country Information Report for India dated 10 December 2020 at para [2.56].
The Economic Times of India reports that the BJP ‘swept’ Uttar Pradesh in the 2019 elections:
Despite an aggressive and highly competitive campaign, the results show that the alliance could not make a dent; it won just 15 seats, the BSP 10 and the SP 5. The BJP won 62 seats, down from 71 earlier, but increased its vote share from 42.63% (2014) to 49.6%, while SP-BSP vote share dropped from 42.2% (2014) to 37.3%.[9]
Political violence in India
[9] (accessed 18 August 2021)
In a recent article entitled “The culture of political violence in India is not new”, Rajesh S Kharat, the Dean of Humanities at Mumbai University, notes that:[10]
The number of victims of political violence in our country is much higher than the number of deaths due to terror attacks
Politicians often capitalise on the emotions and beliefs of common people that can be regional, ethnic, and religious. They become an integral part of the political process. These values and beliefs become extremely intense and often lead to violence in the struggle for political supremacy. This phenomenon can be observed around the world as a means for gaining ultimate power. The issue of political violence has once again come to the fore in the wake of the recent Assembly elections in the five States, including West Bengal.
The struggle for existence has been marked by conflict, violence, oppression, and human rights abuses. In the 18th century, violence was considered almost the only way to achieve political goals. During the French Revolution, the Jacobin rebels tried to overthrow the established political set up by adopting the formula of political violence and change the power structure. In Colombia, the Marxist-Leninist organisations like FARC (Revolutionary Armed Forces of Colombia) resorted to violence for political change since 1964, in Peru, the Shining Path also followed the same tactics and its terror impact is still continues. Thus, one could observe that while some organisations advocate ideology motivated by political violence to achieve their goals, a few others use religion based political violence for their objectives, especially in the Arab-Asian countries.
In most of the developed and underdeveloped countries, the casualties and backlashes of political violence during the general elections or local conflicts is relatively low as compared to acts of terrorism. However, the situation in India is the opposite. The number of victims of political violence in the Gram Panchayat^[[11]] elections and right up to the General Elections or domestic conflicts like intra-State, inter-State or communal and sectorial and caste conflicts is much higher than the number of deaths due to the terrorist attacks.
[Tribunal’s emphasis]
[10] (accessed 17 August 2021)
[11] “Gram Panchayat” (English: Village council) is a basic village-governing institute in Indian villages.
Reports of political violence in India are generally associated with election periods and campaigns. DFAT assesses that:
… leaders and members of opposition parties do not face official or societal discrimination on a day-to-day basis. The risk of political violence between rival supporters increases during parliamentary and state elections, especially in states where results are tightly contested. However, in general, given the scale of the Indian election process, elections are conducted peacefully. DFAT assesses people who publicly express views critical of the government face a moderate risk of official discrimination. This may include arrest, harassment and prosecution.[12]
[12] DFAT Country Information Report for India dated 10 December 2020 at para [3.91].
In respect in Indian civic life, DFAT reports that corruption remains endemic, noting that:
GAN Integrity’s India Corruption Report claims corrupt practices such as facilitation payments and bribes persist in India, with corruption particularly prevalent in the judiciary, police, public services and public procurement sectors. The World Justice Project Rule of Law (WJP ROL) Index 2020 measured the rule of law based on a range of factors, including absence of corruption. Factors considered included bribery, improper influence by public or private interests, and misappropriation of public funds or other resources across the executive, judiciary, military, police and legislature (see also Police and Judiciary). In 2020, India ranked 85 out of 128 countries on the index for absence of corruption in government. Within this category, the report found the legislature the most corrupt, followed by the police/military and executive branch. The judiciary was perceived to be the least corrupt. Since 2014, India has consistently ranked low on the WJP ROL indices measuring absence of corruption across government. Similarly, India ranked 80 out of 198 countries on Transparency International’s Corruption Index, 2019 (down from 78th place in 2018).[13]
And further that:
The presence of corruption in India can lead to high levels of cynicism about new government initiatives and makes anti-corruption a common electoral theme. Access to justice, particularly dealing with Police, is a common complaint, although people’s experience varies greatly from state to state and within states. DFAT assesses corruption remains a part of daily life across India, with facilitation payments and bribes common, particularly at the local level.[14]
[13] Ibid, para [2.30].
[14] Iibid, para [2.31].
GAN Integrity’s “Risk and Compliance Portal” rated police in India as being at “high” risk of corruption, noting (citations omitted):
The police sector in India is susceptible to corruption and can thus carry high risks for businesses. The efficiency of the institution varies across the country, yet, on a general level, business executives report that the police is fairly reliable in protecting them from crime and in enforcing order. Notwithstanding, more than half of companies in India pay for security. Three-quarters of surveyed households in India perceive the police to be corrupt and citizens frequently encounter bribery demands when dealing with officers. The security forces are generally overworked, underpaid, and remain subject to political pressure, which leads to instances of corruption. Instance of security officials being held accountable for misconduct were reported throughout 2015, notwithstanding, impunity was widespread at all levels of the institution.[15]
[Tribunal’s emphasis]
[15]
Analysis reasons and findings
Material before the Tribunal

The applicant provided the Tribunal with a detailed written submission supported by some 21 attachments. In total the material comprised some 111 pages and falls into the following broad categories:
a.newspaper reports;
b.copies of [Committee 1] minutes and related documents;
c.copies of certificates of birth, death and marriage; and
d.general country information.
Relevant documents will be referred to in detail as required.
Oral evidence
The applicant gave evidence that he is [age] years of age and was born in [City 1], India. He is one of three siblings; his elder [sibling] is resident in [Country 1]; his younger [sibling] suffered from diabetes and died in India in 2012 from kidney failure. The applicant’s parents are retired and reside in Hosur, India.
The contextual facts alleged by the applicant as supporting his claim for protection are within a relatively narrow compass. His evidence to the Tribunal is that [Relative B], a member of the Congress Party, was elected to the [Committee 1] in [year].[16] [Relative B] became [Position 1] of the [Committee 1] [in year]. [Relative B] held this position until [year] when [the position was] “passed” [to another member of the family] (that is, the applicant’s [relative]) [Relative C].
[16] The applicant provided documentary evidence of [Relative A]’s elected membership of [Committee 1], in particular he provided copies of minutes of [Committee 1]’s meetings showing [Relative A] as an elected member.
The applicant stated that [Relative C] held the Ward until [year] when [Relative C], in turn, “passed” the Ward to [yet another member of the family], the applicant’s [Relative A] who is the present incumbent.
The applicant provided substantial corroborative evidence of these events, including newspaper articles reporting upon the politics of the [Committee 1]. The Tribunal is satisfied, based upon this evidence and its own researches (some of which are outlined above) as to their veracity. It is within this context that the applicant’s claim for protection is to be assessed.
The applicant’s evidence is that the “passing” of the Ward from [Relative B] to [Relative C] and thence to [Relative A] established the perception (and perhaps the reality) of a dynastic transition within the [applicant’s] family; that is to say [Relative B] publicly endorsed [Relative C] to take over the seat and campaigned on [the relative’s] behalf. It was put to the Tribunal that this dynastic style is common in Indian politics at all levels. It was further put to the Tribunal that politics in India follows something of a “cult of personality”; it was submitted that electors look for a local “champion” and, once that status is earned, that person’s endorsement of a family member practically ensures the passing of the elected office, often in spite of the differing or changing party allegiances of the particular candidates of the broader political fortunes of the parties.
The applicant’s evidence is that, as an elected representative, [Relative B] “worked hard” for [the] constituents, earning their support to such an extent that [Relative B] continued to be elected to the [Committee 1] although the fortunes of the Congress party were waning across [City 1] and broader Uttar Pradesh state through [Relative A’s] time in office in favour of the BJP.
The applicant claim that, with his family connections, his own participation in his family’s political campaigns and an increasing profile, he became the target of politically motivated attacks; to corroborate this claim the applicant provided the Tribunal with copies of the following documents as evidence that he reported the respective attacks to the relevant authorities in India, and requested protection from them:
a.On [date] the applicant wrote to the Senior Superintendent of Police, [City 1], in the following terms (uncorrected):
The applicant family is a political family associated with Congress party of India. Applicant’s [Relative B] has been the Elected member of [Committee 1], [City 1] from [specified Ward]. [Relative C] has recently been elected as Member of [Committee 1], [City 1] from [specified Ward]. The family has strong root and position in [City 1] District. I have been playing active role in the Election of Ward, member Legislative Assembly, MP from Congress party. As a result thereof political enmity has been set up. On [date] the polling day of [Committee 1], [City 1], election fought by [Relative C], some miscreants political enemies attacked the applicant with the intention to cause injury and threat of life along with other members of the family. Applicant gracefully survived the attack. Information was sent to the concerned police station but the police did not lodge any report under political influence. The applicant fear threat to his life. The applicant seeks immediate intervention and diligence of the officers.[17]
[17] The applicant provided the Tribunal with a copy of the courier consignment note dated [date] for delivery of the letter.
b.On [date] the applicant wrote to “The DIC Police”, [City 1], concerning the events [on polling day], and his letter to the Senior Superintendent of Police, in the following terms (uncorrected):
[Having outlined the particulars of the events [on polling day] the applicant states] The political enemies attacked the applicant with the intention to cause injury and threat of life along with other members of the family. I had reported the matter to the S.S.P., [City 1] seeking protection but no notion has been taken in the matter till date. The police is treating it as small political disputes whereas factually speaking there is a serious threat to my life. My constitutional rights, independence and liberty is in danger. I have also apprised the District Civil Authorities in the matter along with respectable persons of the society. For past few months people are following me finding me alone. I am in constant fear and danger to my life. Some unknown miscreants are also being found moving around my dwelling place. [Relative B] and [Relative C] have also met with the police authorities but with no result. I am living a fearful life.[18]
[18] The applicant provided the Tribunal with a copy of the courier consignment note [date] for delivery of the letter.
c.On [date], the applicant wrote to the “District Magistrate” under the subject “[subject line redacted]” (uncorrected):
[Having outlined his family’s background, the applicant states] I, in the past, have made several written representations before the Higher authorities along with you but I have not been provided with help and protection. On two occasions some unknown people have tried to hit my [vehicle] from back with intention to put my life in danger, and they ran away. Recently last night when I was coming to my house, than a [car] without number colour white followed me with three persons inside the Car. As I reached near [location] they brought the Car adjacent to me and pillion driver was holding a Country Made Pistol (C.M.P.) in his hand who pointed in towards me. I stopped my vehicle and with great difficulty reached my house. I am again forced to write this letter to you to please protect my life. My family is living in fear. Political enmity may see my eventual death. If I am not given protection I will be forced to leave [City 1].
d.On [date], the applicant wrote to the “[named] Police Station, [City 1].” in the following terms (uncorrected):
[Having outlined his family’s background, the applicant states] Various incident have occurred where I have been followed and attacked and threat have been forwarded to [Relative B] to keep me oust from politics. On [date] at about [illegible]p.m. two people tried to assault me with knives. I have given various letters to your authorities but with no action.[19]
e.On [date], the applicant wrote to “The Inspector General of Police, [City 1] Region, [City 1]” in the following terms (uncorrected):
[Having outlined his family’s background, the applicant states] I had on previous occasions written letters dated [date], [date], [date] and [date] to the police authorities as well as local Civil Administration seeking protection but with no result. I have been recently appointed as [Position 2] of the [City 1] Youth Congress Committee. I now do not have keen interest in the politics, my family has also been restraining me from political activities in spite of that party has given me a Post. As a result thereof, rival political people and might be people in the party itself who bore grudge against me, are not happy. At around 7:30pm in the night on [date] when I was going towards [location], [City 1] along with my Cousin brother, [Mr D], 4 people on two motor bikes with their faces covered with clothes followed us and when I reached near [location], [City 1] one of the person sitting on the back of the bike opened fire on me. But with the kind grace of God I and my brother escaped. We took our vehicle in [location] situated on [a specified] road, as a result they ran away. I am in constant threat of my life. My family is already against my political career. If protection is not provided to me I will have to leave my country and settle myself abroad.[20]
[19] The applicant also wrote to the “Police Station, Civil Lines, [City 1]” on [date] in materially identical terms.
[20] The applicant provided the Tribunal with a copy of the courier consignment note [dated] for delivery of the letter.
The applicant confirmed in oral evidence that, in addition to reporting the events mentioned, the series of letters represented an escalation of matters to higher levels of authority due to apparent inaction. When pressed by the Tribunal as to whether any of the authorities responded to his letters, the applicant stated that in response to each letter he was met with an oral undertaking to provide protection, but with an excuse to the effect that the authorities were “waiting for central government” approval. Ultimately, he stated, no substantive action was taken by any of the authorities to provide him with protection.
The applicant stated his belief that such inaction on the part of the respective authorities was the result of political influence brought to bear upon the them, the “central government” being under the control of opposing political parties at all material times. When pressed by the Tribunal to substantiate this belief, the applicant referred the Tribunal to a (Hindi to English) translation of a newspaper article dated [in] November 2015 that he obtained from India, written by the relevant newspaper’s correspondent in [City 1]. In an article entitled [Title redacted] the author refers to two cases where political influence is alleged to have altered the outcome of police investigations:
a.“Case No.2” is reported in the following terms:
In the mishap of [name] sexual harassment the culprits have not been arrested till now while the incident has taken place 5 days earlier and out of the same, the 3 alleged persons are [name] and other two are of the other communities and it is expected all the parties have root in the administration and due to not arresting the culprits the S.P. leaders are making pressure over the same.
[Emphasis added.]
b.“Case No. 3” is reported in the following terms:
In the [specified] road, [location], owner Dr [name] from him 30 lacs amount was required from him and the names have come of the person related to the student who come under Sakshas leader, the doctor had recognised his photographs and the police has also admitted it but due to political pressure this matter has been kept pending and till the time the police as not nabbed them…
[Emphasis added.]
The applicant stated that as a young man he was motivated by [Relative B]’s example to enter politics. He stated that he joined the Congress party and in [year] he was elected as [Position 2] of the Youth Congress Committee. To corroborate this claim, the applicant provided the Tribunal with a copy of a letter dated [date] which he received from the [office bearer], [specified] Youth Congress Committee, [City 1], in which it is stated (materially):
…we are pleased to inform you that you are hereby appointed as a [Position 2] of [the specified] Youth Congress Committee.
When pressed by the Tribunal, the applicant described the position of “[Position 2]” as being an “active politician”, working in support of [Committee 1] ward elections, as well as State and National political candidates. He stated that he regularly attended party meetings in Lucknow, the capital city of Uttar Pradesh, and was involved in organising political campaigns.
In respect of the prospect of political violence generally in India, the Tribunal raised with the applicant the DFAT assessment set out at para [27] above, and in particular the proposition that election times were the most likely periods for politically motivated violence to occur. In response, the applicant stated to the effect that election times involved “ordinary people” and outright violence could occur between rival political supporters, but that, for persons active within politics such as himself, those motivated to bring political pressure upon rivals did so at any time; for example, ongoing harassment, threats and violence were regular occurrences. The applicant cited “Case No. 2” and “Case No. 3” outlined above as examples of police inaction motivated by political interests that were not related to election periods.
The applicant asserted that, being the only son of a successful politician in India, it was assumed in political circles that he would be the heir to his family’s political dynasty and eventually take an elected position either in the [Committee 1] or in State or National politics. He stated that rival parties were motivated to prevent him form doing so by exerting pressure through violence and intimidation and that they did so with impunity, being politically protected.
The Tribunal raised with the applicant its concern that the applicant had not reported any further attacks in the period after he had been appointed as [Position 2] in [year] and his arrival onshore in July 2007. The applicant stated that during this period he continued to receive regular verbal threats warning him to, in effect, stay out of political life. He stated that these threats were, on occasion, against his life. The applicant described himself as “living in a threat zone; a hostile environment”. The applicant stated that he received such threats, on average, twice a month. When pressed, the applicant stated that, as [Position 2] of the Youth Congress, he did not receive any enhanced protection or security measures; he stated that, had he progressed in political life, and become a member of [Committee 1], or State or National legislatures, he would then have been entitled to enhanced security. When further pressed, the applicant stated to the effect that, as [Position 2] of the Youth Congress, he was perceived to be under the protection of members of parliament and senior political figures and was, in effect, “too big a target” for direct physical intimidation.
The applicant’s evidence is that, were he to return to India now, or in the reasonably foreseeable future, he did not intend to resume political life or seek political office, but that he would be perceived by members of other parties, in particular the BJP, which is enjoying strong support in Uttar Pradesh at this time, to be the natural heir to his family’s dynasty and would be a target for violence.
Analysis
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.’
In giving his oral evidence, the applicant appeared to the Tribunal to do so honestly and truthfully. Overall, the Tribunal considers that the applicant provided a consistent account of his circumstances.
The Tribunal is satisfied from the available evidence that the applicant’s [Relative B], then [Relative C] and now [Relative A] have been, and are, ward representatives on [Committee 1]. The Tribunal has no reason to doubt that the applicant followed his family’s tradition of political life and was appointed as [Position 2] of the Youth Congress Committee in [year].
In respect of the applicant’s allegations of targeted political intimidation as outlined in his correspondence to the authorities in India, the Tribunal accepts that they amount to contemporaneous records of him having raised the issues outlined therein with the respective authorities to whom they were addressed.
The Tribunal acknowledges the applicant’s claims that the respective authorities failed to provide the protection promised to him. How the authorities responded remains uncorroborated and it is impossible for the Tribunal to be satisfied in respect of the applicant’s bare claims in this regard on balance of probabilities. The Tribunal therefore accepts that there may be doubt about the veracity of this aspect of the applicant’s claims.
The process of fact finding in circumstances where there may be doubt was discussed by the Federal Court in Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 (Sackville J) at [62] to [64]:
62 In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the [Refugee Review Tribunal (‘RRT’)] is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a "real substantial basis" for the applicant's claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant's case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.
63 Although the "What if I am wrong?" terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in [Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259] and [Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559] as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a "well-founded fear of being persecuted" for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute "an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found".
64 In my view, there is no reason in principle, and nothing in the reasoning of the High Court, supporting a general rule that the RRT must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that the findings are correct. In Guo itself, the findings were not expressed this way, yet the joint judgment considered it was enough that the RRT appeared to have no doubt that the probability of error was insignificant. Moreover, had the Court intended to impose such an extraordinary burden on the RRT, it might have been expected to say so.
[Emphasis in original]

While the Tribunal has some doubts about the veracity of the applicant’s claims concerning the specific responses of respective authorities in India, the surrounding evidence of his family’s political interests is generally supportive of the applicant experiencing the type of political intimidation he claims. Further, his claims are broadly consistent with country information which indicates that violence and intimidation are a part of Indian political culture and, notably, that the police and security forces there “remain subject to political pressure”.[21]
[21] See the extract from GAN Integrity’s “Risk and Compliance Portal” set out at [30] above.
Accordingly, the Tribunal accepts the possibility that the attacks as claimed by applicant occurred in the manner he has described and for the purpose that he claims, namely, to dissuade him from pursuing political office. It also accepts the possibility that the authorities he turned to for protection failed to act due to political pressure. Finally, the Tribunal accepts the possibility that, given his family’s political history, should he return to India now or in the reasonably foreseeable future, he may be perceived as intending to pursue political office there.
Overall, in light of the cumulative effect of these possibilities, the Tribunal considers that if he is returned to India now or in the reasonably foreseeable future, there is a real chance that the applicant will experience similar acts of violence or intimidation to those he has described and, given the political motive of those acts, he is unlikely to receive protection from the authorities there.
The Tribunal is, therefore, satisfied that there is a real chance that the applicant will face serious harm, and therefore persecution, in India. The Tribunal is satisfied that the essential and significant reason for the persecution feared is on the grounds of his (actual or perceived) political opinions. On the basis of the evidence before it, including the country information cited above, the Tribunal is not satisfied that state protection is available to the applicant in India. The Tribunal is not satisfied that the applicant would be able avoid the harm referred to by internally relocating within India. For these reasons the Tribunal accepts the applicant has a well-founded fear of persecution in all areas of India for the reasons stated.
It follows that the Tribunal accepts that the applicant has a well-founded fear of persecution for the purposes of s.5J. In considering whether he comes within the definition of a refugee contained in s.5H, it accepts that he is outside the country of his nationality and unable to return to it owing to his well-founded fear of persecution. Therefore, he meets the criteria in s.5H(1). There is no information before the Tribunal to indicate that any of the exclusions set out in s.5H(2) apply to the applicant. The Tribunal finds, therefore, that for the purposes of s.36(2)(a) of the Act, the applicant is a refugee.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Damian Creedon
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 4315

18 August 2021

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction

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Natural Justice