1709288 (Refugee)

[2022] AATA 2497

1709288 (Refugee) [2022] AATA 2497 (16 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1709288

COUNTRY OF REFERENCE:                   India

MEMBER:Scott Clarey

DATE:16 June 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 16 June 2022 at 10:25am

CATCHWORDS
REFUGEE – protection visa – India – particular social group – inter-caste marriage – family and community disapproval – unpaid debts – threats of harm by unlicensed moneylender –– vague and inconsistent evidence – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 423A, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 April 2017 to refuse to grant the applicant [named], a citizen of India, a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate refused to grant the visa on the basis that they were not satisfied the applicant was owed protection in Australia. On 27 April 2022, [the applicant] applied to the Tribunal for review of this decision. He provided the Tribunal with a copy of the delegate’s decision record.

2. [The applicant] appeared before the Tribunal via teleconference on 17 February 2022 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Tamil (Indian) and English languages.

3. [The applicant] first arrived in Australia [in] November 2016 on a transit visa (subclass TX‑771) granted to him on 8 November 2016 that was valid until [date] November 2016. [The applicant] lodged the protection visa application on 21 February 2017 (that is the subject of this review) and was granted an associated bridging visa.

4. On the basis of the copy of [the applicant]’s Indian passport provided to the Department, I accept that he is a citizen of India and that his identity is as he claims it to be. I accept that India is [the applicant]’s country of nationality for the purposes of the refugee assessment and the receiving country for the purposes of the complementary protection assessment.

5. The issues in this review are whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J(1) of the Act, and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of India, there is a real risk he will suffer significant harm.

6. For the reasons set out below, I have concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence before the Department

7. [The applicant] set out his claims for protection in his application form as follows (unedited):

   Q88:     I am seeking protection in Australia so that I do not have to return to:

   A:INDIA

   Q89:     Why did you leave that country(s)? Provide specific details

   A:I WAS STRUGGLED IN A FINANCIAL ISSUE TO SUPPORT MY FAMILY WHICH LED ME TO LOAN SOME MONEY OF MONEY FROM AN UNLICENSED LOAN SHARK. THE THING IS THEY MADE THEIR OWN RULE AND BREACHED THE 1^ST AGREEMENT, MADE BETWEEN US. THINGS GET WORSE WHEN I HAD TO REPAY THE LOAN WITH SUCH A HUGE INTEREST THAT CLEARLY UNPAIR TO ME, THEN I DECIDED TO STOP REPAY THEM THE MONEY AT THAT TIME. I RECEIVED A MALICIOUS THREATS FROM THEM A WEEKS APTER NOT MAKING ANY REPAYMENT, FOR MY OWN SAFETY, I DECIDED TO LEAVE THE COUNTRY AND I CAME TO AUSTRALIA SEEK FOR PROTECTION.

   Q90:What do you think will happen to you if you return to that country(s)?

   A: IF I RETURN HOME AND UNABLE TO PAY THE REMAINING AMOUNT OF LOAN, I BELIEVE I’LL BE TORTURED AND WORSE I WOULD BE KILLED SINCE THERE WERE NUMBERS OF SIMILAR CASES LIKE THIS.

   Q91:Did you experience harm in that country(s)?

   A:I WAS HARMED AND RECEIVED A MALICIOUS THREATS, MY BELONGINGS WERE ALSO BEING SEIZED AS PART OF COMOPENSATION, THEY DID THAT BECAUSE I DID NOT REPAY THEM THEIR MONEY PLUS ABSURD INTERESTS.

   Q92:Did you seek help within the country(s) after the harm?

   A:I DID NOT SEEK HELP FROM ANY GOVERNING-BODY BECAUSE I LOANED A MONEY FROM UNLICENSED MONEYLENDER

   Q92:Did you seek help within the country(s) after the harm?

   A:I DID NOT SEEK HELP FROM ANY GOVERNING-BODY BECAUSE I LOANED A MONEY FROM UNLICENSED MONEYLENDER

   Q93:Did you move, or try to move, to another part of that country(s) to seek safety?

   A:I MOVED TO OTHER PLACE HOPING TO SEEK SAFETY BUT I WAS NOT LIVED IN PEACE BECAUSE THEY STILL LOOKING AT ME

   Q94:Do you think you will be harmed or mistreated if you return to that country(s)?

   A:I WILL BE HARMED AND MISTREATED IF I STILL FAILED TO CLEAR OUT THE REMAINING BALANCE OF THE LOAN MONEY.

   Q95:Do you think the authorities of that country(s) can and will protect you if you go back?

   A:I AM UNCERTAIN ABOUT THIS. I’M APRAID I WILL BE ARRESTED FOR LOANING A MONEY FROM A LOAN SHARK INSTEAD OF THE LOAN SHARK BE ARRESTED FOR THREATENED ME.

   Q96:Do you think you would be able to relocate within that country(s)?

   A:I BELIEVE I CAN BE RELOCATE ANYWHERE WITHIN THE COUNTRY IF ONLY I AFFORD TO REPAY THEIR MONEY.

8. In making my decision, I have had regard to all of the information in the Tribunal’s file and in the Department’s file provided to the Tribunal.

   Evidence from the Tribunal hearing on 17 February 2022

9. At the hearing, [the applicant] stated that he had grown up in a town near Kerala, India. He said that he had a father and mother and one younger sister, but he was not sure where they lived now. [The applicant] stated that he had been married for 15 years and he had a son who was [age] years old. He said that he had been living in Chennai, India, for approximately five years before travelling to Australia in November 2016. In Chennai, he had worked a number of jobs, including [two occupations]. He said that he was of the Hindu ethnicity but was not religious.

10. At the beginning of the hearing, when asked an introductory question about whether the information he had supplied on the protection visa application form was true and correct as far as he knew, [the applicant] gave a vague and hard to follow response, stating words to the effect that at the time the form was completed he did not know much English and he was told by ‘a [Country 1] guy’ that he could get a work visa in Australia from the Australian government. When I questioned [the applicant] further about who had helped him complete the form and obtain the visa, he gave a vague and evasive response, saying that he only came to know the man a few months after arriving in Australia before the man went back to India. [The applicant] stated that he did not know what information had been put in the application form on his behalf. [The applicant] said that the [Country 1] man who completed the form and organised the visa told him that he would give him a copy of the form but he never did. When I asked [the applicant] what sort of Australian visa he had sought in India, he gave a vague response, stating words to the effect that the [Country 1] man who had organised it on his behalf had told him that if he applied for the visa he could stay in Australia and have the right to work.

11. I asked [the applicant] why he had signed a declaration on the protection visa application form that stated that the information was complete and correct, and he stated that he had made the declaration but did not know what was written in the form. When I clarified with [the applicant] whether it was his signature on the form, he stated that it was. When I asked him again why he would sign a form stating that the information was complete and correct without knowing what that information was, [the applicant] told the Tribunal that at the time the form was signed he did not have work rights and he needed money. He said the [Country 1] man had told him if he signed the form he would get work rights and he could tell his story later. I asked [the applicant] why, when given the opportunity to tell his story in person to the Department, he had failed to attend the scheduled interview. He stated that he had fallen over in the bathroom and didn’t know how to inform the Department he could not attend.

12. When I asked [the applicant] at the Tribunal hearing why he had decided to depart India and come to Australia, I note that he made new claims that had never been put before the Department or the Tribunal (this issue is discussed further below). [The applicant] stated that he had fallen in love with a girl from a different caste and married her but his parents had not approved of the relationship because of the claimed caste difference. He claimed that he was harassed by people in his hometown because of his relationship with his wife and he had decided to move to Chennai to get away from these issues. He said that he had still experienced ‘trouble’ in Chennai and it was then that he’d met somebody who told him he could get permanent residency in Australia. He claimed that his father was a high‑ranking member of a political party. When asked what the name of this political party was, [the applicant] stated that the name of the organisation had changed and he did not know what the current name of it was. He said people in this unnamed political organisation had found out about his ‘mixed caste’ marriage and had started to harass his father about it, and because of this his father had started to give [the applicant] a hard time about his marriage, which included verbal abuse.

13. I discussed with [the applicant] at the Tribunal hearing country information that suggested inter-caste marriage in India was relatively common and quite widely accepted. I asked him why he thought he would be harmed in a large city like Chennai, where he had lived with his family for five years prior to coming to Australia. [The applicant] gave a vague and generalised response, stating words to the effect that in his home town there were issues related to caste and that wherever he tried to find work his father made calls to make sure he didn’t get the job. When I asked [the applicant] how this could be possible, when Chennai was a large city with a population of more than 11 million people, and his father did not live there, [the applicant] stated briefly that his father knew everyone in the district. I note that after the hearing had concluded, [the applicant] submitted an email to the Tribunal (on 17 February 2022) that attached an official marriage certificate issued by the ‘Marriage Registrar Office, [Town 1]’. The certificate stated that [the applicant] had married a woman named [Ms A] (born on [date]) [in] October 2004 in [Town 1], India. I note that every section on the certificate labelled ‘caste’ (including those under the name of [the applicant] and his parents and [Ms A] and her parents) was blank, i.e. did not indicate any information related to their respective castes.

14. At the hearing, I went through the claims made on the original protection visa application form with [the applicant]. When I read out claims related to issues involving debts and loans, [the applicant] stated that when he was living in Chennai he had borrowed money and given it to the agent so he could leave India and come to Australia. He then gave a semi‑coherent and confused response, stating words the effect that he had spoken to his friend and told him his problems. I noted to  [the applicant] that he had told me earlier in the hearing that he did not know what was written in the protection visa application form, but now he was appearing to claim that the form contained information that he said was accurate. I asked [the applicant] to explain how he could not know what was in the form but also know that the form may contain some information that was accurate. [The applicant] gave a confused and vague explanation, stating words to the effect that the application was made by the [Country 1] man on his behalf, and because the two did not speak a common language (Tamil or English) [the applicant] had explained some things to him through gestures.

15. I asked [the applicant] specific details about the money he claimed to have borrowed in India. I note that his answers were at times vague and confused. [The applicant] stated that when he was in Chennai he was not working and borrowed money from unlicensed lenders so that he could come to Australia. He said these people had asked for interest and the interest began to accumulate. He said he did not know how to repay the money. He then stated that he had borrowed the money for day-to-day expenses. [The applicant] said that he had borrowed the money in 2011 or 2012. I asked [the applicant] why he would borrow money for the purpose of funding his travel to Australia but not travel to Australia for five years after receiving the funds ([the applicant] arrived in Australia in November 2016). [The applicant] gave a confused response, stating words to the effect that he had borrowed the money five years ago and given it to the agent. He said that he had borrowed the money thinking he would come to Australia immediately but did not explain why it had ultimately taken several years for him to leave India.

16. I note that when questioned about specific details of the claimed loan, and the threats he claimed to have received from the unlicensed moneylender, [the applicant] gave a series of vague and at times hard to follow responses. He stated that initially he had paid 5% interest but the interest rate had increased. He said that he had only paid interest for two months and after that he didn’t pay any interest at all. He said the unlicensed moneylender at first didn’t do anything, but in the third month they started to verbally abuse him for not having made the payments. He then said this escalated into abuse and threats of harm. He said the unlicensed moneylender would go to the police. [The applicant] stated that he had been giving these men excuses for five years since the loan had been taken out. He said that he had started to move houses and areas to avoid the men but they had found him after five months. He stated that he didn’t expect it would take five years for him to leave India, and he thought that he would leave sooner and be able to repay the loan while working in Australia.

17. I asked [the applicant] specifically about the threats of harm he claimed to have received in India from the unlicensed moneylender in relation to the claimed loan. He said that the threats had always been verbal, and that he had never been physically harmed or assaulted by the men. When I clarified this with him, [the applicant] said that nothing had ever been taken from his family and that they had never physically assaulted him (this issue is discussed in further detail below). I asked [the applicant] if he had ever reported these claimed threats to the police. I note that [the applicant] gave a series of vague, evasive and at times contradictory responses to this question (this issue is discussed in further detail below).

18. I asked [the applicant] what he feared if he were to return to India in the foreseeable future. He said that if he went back to India now, he would be facing ‘problems’ from the people he had borrowed money from. He said that he would face these problems until he had settled his debts. He said that his wife and children lived in Chennai, and they had no extended family there to help them. [The applicant] stated that his wife and children had never been threatened by the unlicensed moneylender and they had caused no trouble to his family.

19. When asked if there was any other basis upon which he feared harm if he were to return to India in the foreseeable future, other than the claimed issues relating to the loan and his marriage, [the applicant] said there was not.

    RELEVANT LAW

20. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

21. 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.

22. 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).

23. 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.

24. 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

25. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    ANALYSIS OF EVIDENCE AND FINDINGS

    Credibility

26. I acknowledge the importance of adopting a reasonable approach when making findings of credibility.[1] However 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. Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to accept uncritically any and all of the allegations made by an applicant.[2]

    [1] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court, Foster J at 482

    [2] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70

1. I note that there were significant credibility issues arising from specific information provided by [the applicant]. As a result, I have serious concerns about the reliability of [the applicant]’s evidence about his claims relating to his fear of harm from an unlicensed moneylender in India and/or their agents. I note that various aspects of his oral evidence differed markedly from his written claims made on the protection visa application. I note that [the applicant] provided hesitant, vague and at times inconsistent and contradictory evidence when questioned about specific details of his claims. His responses were often evasive, highly generalised and/or off-point. This included evidence related to specific details of the claimed loan in India, the nature of the threats of harm he had been subjected to, and if he’d reported his claimed issues to authorities. I also consider a number of aspects of his evidence to be internally inconsistent and/or highly generalised in nature, including his evidence relating to his claims relating to his claimed ‘mixed caste’ marriage (detailed further below). At the hearing, I explained to [the applicant] that I had significant, specific concerns about his credibility and various aspects of his evidence and gave him an opportunity to respond (detailed further below).

2. For the following reasons, I do not accept [the applicant]’s claims to have borrowed money from an unlicensed moneylender in India to be true. Firstly, I note that [the applicant] gave inconsistent and/or contradictory evidence in relation to key (and often elementary) aspects of his claims. For example:

   ·In his protection visa, in response to the question ‘did you seek help within the country(s) after the harm?’, [the applicant] stated ‘I did not seek help from any governing‑body because I loaned a money from unlicensed moneylender’. At the hearing, when asked if he had sought help from the police after the claimed threats he received from the unlicensed moneylender, [the applicant] initially stated that he did not know, that two people had come to his home in police uniform to ask questions, but he did not know if they were actual police or not. At one point, he said that he did make a complaint to the police but that the police only supported rich people. He then stated that he had gone to the police to report these threats. I raised this specific potential inconsistency with [the applicant] at the hearing, and asked why he stated that he had not sought help from authorities in relation to the claimed harm. [The applicant] gave a vague, confused and at times contradictory response, stating words to the effect that he could not go and make complaints about the loan because the authorities would ask for official receipts and documents that he did not have. He then said that he did complain to the police and tell them that these people were making threats against him. He then again said that he cannot go and make complaints related to the loan because he had no documents relating to it. He then said that he did go to the police to make a complaint that the people were harassing him. He said the police asked why the people were harassing him, and [the applicant] told them that he had borrowed money and this is why he was being threatened. He then said the police would not receive the complaint.

   ·In his protection visa, in response to the question ‘did you experience harm in that country(s)?’, [the applicant] stated ‘I was harmed and received a malicious threats. My belongings were also being seized as part of compensation, they did that because I did not repay them their money plus absurd interests’. When asked about the threats and harm he claimed to have experienced in India, [the applicant] stated that he was only subject to verbal threats and he was never physically harmed or assaulted. He said that nothing was taken from his family and that they never touched his body. I raised this specific potential inconsistency with [the applicant] at the hearing, and asked why he had stated in the protection visa application form that his belongings had been seized as compensation. [The applicant] responded he didn’t know why that was stated on the form, and that he didn’t know what had been included in the form that was completed, he claims, on his behalf.

3. Secondly, I found several aspects of [the applicant]’s claims to be vague, internally inconsistent and/or highly generalised in nature. For example:

   ·As outlined above, [the applicant]’s evidence relating to the particular threats he claimed to have received from the moneylender, and in particular the harm that he claimed to fear if he was to return to India in the future, was vague, unspecific, confused and, ultimately, unconvincing.

   ·As outlined above, [the applicant]’s evidence relating to why the claimed loan had been taken out in the first place was vague and incongruous. He initially stated that he had taken out a loan in 2011 or 2012 to fund his travel to Australia but could not explain why it had taken him approximately five years to eventually depart India, which he did in November 2016.

4. As noted above, I outlined each of these concerns to [the applicant] at the hearing and gave him an opportunity to comment. I noted various inconsistencies in his written and oral evidence and at times quoted relevant sections of his written claims from the protection visa application. I have considered the explanations [the applicant] gave for these inconsistencies, discrepancies, generalities and/or concerns. I found [the applicant]’s explanations for them to be unconvincing and I do not accept them. I do not accept [the applicant]’s general explanation that he had paid a [Country 1] man to complete the form and was unaware of what was ultimately written in the application and/or that he had not been provided with a copy of the application form before he signed a declaration stating that its contents were complete, correct and up to date. I do not accept that these inconsistencies, discrepancies, generalities and/or concerns can be explained by mistakes made by a person [the applicant] claimed to have helped him complete the form.

   Conclusion on claims related to loans

5. As noted above, I have serious concerns about the credibility of [the applicant]’s evidence relating to his claimed fear of harm from an unlicensed moneylender and/or their agents. I note that [the applicant] provided evidence that was at various times vague, evasive, inconsistent and/or highly generalised when questioned about specific details of his claims.

6. I am mindful that memories can be dimmed by the passage of time. I accept that it is not always possible or necessary for an applicant to remember specific details or dates. Even when making allowances for such factors, given the highly significant nature of the events being discussed and regarding the serious threats he claimed to have been subjected to, I have formed the view that it could be reasonably expected that [the applicant] would have had a more precise and coherent recollection of the specific terms and details relating to the claimed loan and his claimed fear of harm related to the loan in India.

7. I find various aspects of [the applicant]’s evidence in relation to having been threatened by an unlicensed moneylender and/or his agents in India to be vague, inconsistent, improbable and, ultimately, unpersuasive. I note that there is very little documentary evidence to corroborate any of [the applicant]’s claims. For the reasons outlined above, I do not accept [the applicant] took out a loan from an unlicensed moneylender in the past, nor do I accept he was unable to repay the loan. I do not accept [the applicant] was threatened, harassed, targeted or otherwise pursued by an unlicensed moneylender and/or his agents and/or anybody else for reasons relating to a loan/debt or for any other reason. I do not accept [the applicant] left his home in India and travelled to Australia to escape the illegal moneylender and/or his agents. It follows that I find [the applicant]’s fears of persecution on this basis are not well-founded.

   New claims related to [the applicant]’s marriage

8. I note that [the applicant]’s claims relating to his ‘mixed caste’ marriage were first made at the Tribunal hearing on 17 February 2022, despite having various prior opportunities to raise this issue ([the applicant] lodged his protection visa application in February 2017 and lodged his application for review with the Tribunal in April 2017). As noted above, these new claims were further discussed with [the applicant] at length at the hearing. As discussed above, I found these claims to be vague, hesitant, at times inconsistent and, ultimately, unreliable. I note that s 423A of the Act requires the Tribunal to draw an adverse inference as to the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made.

9. When asked why he had not sought to raise these claims relating to his claimed mixed caste marriage, [the applicant] gave a vague response, stating words to the effect that he had told the people who had helped him with the protection visa application the real story and he didn’t know why they had not put it in the form. [The applicant] also stated that he knew he would be invited for an interview and he could tell the interviewer his ‘real’ problems in person. As noted above, [the applicant] failed to attend a scheduled Departmental interview in April 2017 when invited. I told [the applicant] at the hearing that although my mind was not made up about these and other issues relating to his case, I may make negative inferences about this timing and the delay in raising these new claims relating to his marriage and that I may not accept his explanation for the delay.

10. After reviewing all of the evidence before me, including [the applicant]’s explanation for the delay in his making new claims relating to his marriage, I am not satisfied that [the applicant] has a reasonable explanation as to why the claims were not raised with, or evidence was not presented to, the primary decision-maker and/or the claim was not put forward prior to him attending the Tribunal hearing, despite having had opportunities to do so. When considered in the context of my other concerns relating to [the applicant]’s general credibility (as discussed above), I do not accept [the applicant]’s explanation that he had told the unnamed people who he claimed helped him with his protection visa application of these issues but they had failed to include the information on the form.

    Conclusion on issues related to marriage

11. I have serious concerns about the credibility of [the applicant]’s evidence about his claimed fear of harm relating to his marriage. These concerns were outlined to [the applicant] at the hearing. I note that [the applicant] provided evidence that was at various times hesitant, vague, incoherent and contradictory when questioned about specific details of his claims. This included evidence relating to the issues relating to the claimed loan from an unlicensed moneylender, reasons why apparent claims were not made on the protection visa application, reasons why he had not raised new claims related to his marriage prior to the Tribunal hearing, and the general details related to his claimed fears of harm related to his marriage (as detailed above). For the reasons set out above, I consider his evidence related to his claims to be both vague and internally inconsistent.

12. Considering all of the evidence cumulatively, and having regard to [the applicant]’s personal circumstances and narrative as a whole, I do not find him to be credible. I find [the applicant]’s evidence in relation to his claims relating to his marriage to be vague, improbable and, ultimately, unpersuasive. For the reasons outlined above, and after having carefully considered [the applicant]’s written and oral evidence, I do not accept that [the applicant] is in a mixed caste marriage as claimed nor do I accept his father is a member of a political party that has anti mixed-caste marriage views. I therefore find that [the applicant] does not face a real chance of suffering persecution involving serious harm on return to India from the Indian authorities, society, his family (including his father and/or his father’s associates) or anybody else for reasons relating to his marriage or for any other reason. I find that [the applicant]’s fears of persecution on this basis are not well-founded.

13. As [the applicant] has not claimed to fear harm for any other reason, I do not accept that he has a well-founded fear of persecution for any reason if he returns to India, now or in the reasonably foreseeable future, for any reason.

    Conclusion – refugee grounds

14. Having considered [the applicant]’s claims both individually and cumulatively, and all of the available evidence and relevant country information, I find that [the applicant] does not face a real chance of persecution on return to India for any reason in the reasonably foreseeable future and that his fear of persecution is not well-founded.

15. For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations. Therefore [the applicant] does not satisfy the criterion set out in s 36(2)(a).

    Complementary protection

16. Having concluded that [the applicant] does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).

17. In considering whether there is a real risk that the applicant would suffer significant harm if returned to India, I have noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[3]

    [3] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342]

18. [The applicant] has not advanced any claims indicating that he considers he would face a real risk of significant harm if returned to India other than for the reasons discussed above relating to his claims under the refugee criterion. Given I do not accept that [the applicant] faces a real chance of suffering persecution involving serious harm if he returns to India, I also find, having regard to the findings of fact set out above, that there are not 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 would suffer significant harm in the form of: being arbitrarily deprived of his life; having the death penalty carried out on him; being subjected to torture; being subjected to cruel and inhuman treatment and punishment; and/or being subjected to degrading treatment or punishment by anybody for any reason.

19. Consequently, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

20. 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 criteria in s 36(2).

    DECISION

21. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Scott Clarey
    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.

    …