1718832 (Refugee)

[2017] AATA 2896

1718832 (Refugee) [2017] AATA 2896 (16 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1718832

COUNTRY OF REFERENCE:                  India

MEMBER:Paul Millar

DATE:16 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 16 November 2017 at 11:04am

CATCHWORDS

Refugee – Protection Visa – India – Fear of violence – Perceived connection with a murder – Witness credibility – Significant inconsistencies in evidence – Significant delay in applying for protection

LEGISLATION

Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 376, 499

Migration Regulations 1994, Schedule 2

CASES

SZBYR v MIAC (2007) 235 ALR 609

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] August 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).  The applicant, who the Tribunal finds to be a citizen of India, applied for the visa [in] July 2017.[1]  The applicant appeared before the Tribunal on 10 November 2017 by way of videoconference to give evidence and present arguments in relation to the issues arising in the review.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

   [1] The Tribunal’s finding as to citizenship is based on the applicant’s evidence that he was born and lived in India.

   CRITERIA FOR A PROTECTION VISA

2. 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.

3. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

4. 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.

5. 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).

6. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration (‘the department’) – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.[2]

   [2] In this respect, the Tribunal has taken account of DFAT Country Information Report India 15 July 2015 but does not rely on it in determining this review.

   FINDINGS

7. For the following reasons, the Tribunal concludes that the decision under review should be affirmed.  According to his evidence to the department and the Tribunal, the applicant claims protection on the ground that members of a certain group in the Punjab will harm him due to his suspected involvement in the murder of a relative of a group member.[3]  The Tribunal holds the following concerns about the applicant’s credibility.

   Credibility concerns

   Delay in seeking protection

   [3] The applicant’s evidence to the department and Tribunal comprises the contents of his protection visa application forms; his evidence at his interview with the delegate for which there is an audio recording on the department file and to which the Tribunal has listened and his evidence at the Tribunal hearing. 

8. To the Tribunal, the applicant gave the following account of the basis on which he claims protection.  At some point, while still at school in the Punjab where the applicant lived, he met X.  They became friends and the applicant saw him regularly from that time.  X and his family or group were in a feud with another male, Y, and his family or group.  In 2013, X got into an altercation with Y’s [relative] and murdered him.  The applicant had no involvement in this incident, but, because he and X were friends and saw each other regularly, Y and his associates suspected that the applicant was involved.  On a few occasions, when he was with X and his associates, they were approached by Y and his group and fights broke out between them.  On these occasions, the applicant did not do anything except, on one occasion, when he tried to intervene and someone from Y’s group [hit him] with [an object] from which he sustained [an injury].  At that point he fell on the ground and these people [hit him].

9. After this, on another occasion, one member of Y’s group saw the applicant in the street and asserted that the applicant was with X.  He asked the applicant why he was with X and what his role was. He asked the applicant why he had intervened in the previous fight.  At this point blows were exchanged between the pair.  The applicant thought this person must have reported the incident to the rest of Y’s group because, after that incident, the applicant was on the street with a friend with whom he had been undertaking an [exam], when a car arrived with [a number of] people from Y’s group.  As those men were getting out of the car, the applicant and his friend escaped [using a vehicle]. At that same time, the men fired shots at the applicant.

10. The applicant and his friend went to a [location] where they remained for a few hours.  The pair then went their separate ways.  The applicant went to a different city, AA, where [his Relative A] lived and from there had contact with his parents who told him that Y’s group knew his whereabouts so he should go somewhere else.  For that reason, he went and stayed with [his Relative B] in a city in another part of India away from the Punjab.  He remained there for six or seven months.  He stopped living there because people he understood to be from Y’s group, went to his [Relative B]’s home while he was not there, wanting to know where he was. These people harassed and pushed his [Relative B] a few times.

11. That same day, the applicant went back to AA and stayed with [Relative A].  He remained in that area, staying with [Relative A] and friends, until leaving India and coming to Australia in mid-2014.  In this period, the applicant was told that people he understood to be from Y’s group had been asking others in his village where he was.  In early 2015, approximately seven months after his arrival in Australia, X, who had been arrested by police for the murder of Y’s [relative], was shot and killed by Y while in police custody.  The incident was reported in the newspaper and the applicant learned about it at that time. Approximately one year after he arrived in Australia, the applicant was told that people he understood to be from Y’s group were again asking different people in the village for his whereabouts.

12. The applicant claims to have left India to save his life, people from Y’s group having located his hiding place where he stayed with his [Relative B] away from the Punjab.  Even so and although, within one year of arriving in Australia in June 2014, he was told that Y had killed his friend X and people from Y’s group were looking for him in his village, he did not apply for protection until some three years after his arrival.  When asked what steps he took after arriving in Australia to find out how he could remain here permanently to be safe from the harm he claims to fear in India, the applicant said that he did not take any steps.  He thought that he would just complete his studies and then apply for permanent residence.  Throughout this period that he held the visa and while it was valid he was willing to see if he could obtain permanent residence through study.  He said that once his visa was cancelled in January 2017 he then focused on seeking protection. 

13. The Tribunal put to the applicant that it had difficulty accepting that, in his claimed circumstances, he would be content to see if he could gain the right to remain in Australia permanently through undertaking study given that he would have to continue to pay tuition fees, obtain satisfactory results and do this while the visa in his possession allowed only temporary stay.  In response, the applicant said that his parents were paying his fees and he did not know what the system was.  When this same issue was explored with him by the delegate, he similarly responded that he did not apply for protection any earlier than he did because he knew nothing about it and needed to get help for it. He referred to his parents having to sell land to pay for his expenses.  He also referred to being in police custody [in] 2017 before being transferred to the custody of the department. 

14. None of the applicant’s responses to the delegate or the Tribunal satisfactorily explain the inordinate delay on his part in seeking protection.  The applicant took the significant step of not only leaving his native village, but, leaving his country, for his safety. The applicant attempted to live safely in another part of India but the people he claims to fear were able to locate him.  Not long after arriving in Australia he received news indicating danger still existed for him in India.  In all of these circumstances, if the applicant truly left India to save his life, the Tribunal does not believe that he would do nothing about seeking protection until so long after he first arrived here.   The Tribunal does not accept that somebody in his claimed circumstances would be content to rely on holding a temporary visa in the hope of eventually gaining permanent residence. 

    Inconsistent evidence about important events in his account

15. The applicant gave inconsistent evidence with respect to being attacked by members of Y’s group.  In this respect, to the delegate, the applicant said that he was with X and [a number of] others when members of Y’s group tried to shoot him.  The Tribunal put to the applicant that this was inconsistent with his evidence that, on this occasion, he was not with X but was with one other person, a friend with whom he was [studying] and who the applicant said knew X but was not part of his group.  In response, the applicant said that, at the time of the shooting, X and his associates were not present.  It was afterwards, at the place to which the applicant and his friend fled, that he made contact with X who came to that place and told him that he had to go elsewhere for his safety.

16. The applicant did not account for the evidence he gave to the delegate as to who was present in this incident in which shots were fired.[4]  Further, the Tribunal put to the applicant that when initially relating his account of where he went after the shooting incident and to whom he spoke before going to stay with his [Relative B] away from the Punjab, he made no mention of seeing X and X telling him to go elsewhere.  In his initial evidence, the only people who gave him that advice were his parents.  In response, the applicant said that meeting with X was a routine matter and he made a mistake in not mentioning that in his initial account. 

    [4] This inconsistency is not ‘adverse information’ within the meaning of the Act.  See SZBYR v MIAC (2007) 235 ALR 609 at [18].

17. Given his association with X lies at the core of the account on which his protection claims are based, were he relating a truthful account, the Tribunal could reasonably expect the applicant to also say, in his initial evidence, that X came to see him after this incident and told him to flee.  His reasons for failing to do so are not satisfactory.  This omission reflected poorly on his credibility and indicated that he was inventing evidence to conceal the initial discrepancy put to him about who was present at the shooting incident. 

18. The Tribunal also found inconsistency in his evidence as to his movements after the shooting incident.  In this respect, to the Tribunal, the applicant said that he stayed at the home of his [Relative B] away from the Punjab for six or seven months after the shooting incident. In stark contrast to this evidence, he told the delegate that in fact he stayed at the home of his [Relative B] for [less than one month].  In response, the applicant said that it could be an omission on his part. That is not a satisfactory reason for his divergent accounts of the period he stayed with his [Relative B].

19. The applicant also said that the interpreter at his interview with the delegate made mistakes.  When asked what those mistakes were, he said that the interpreter incorrectly translated the name of the place AA as well as the name of Y.  In addition, he said that he told the delegate that six or seven months after he arrived in Australia X was killed but this was translated as six or seven months before the interview. The applicant then said that there were other mistakes but he could not recall what they were.  The Tribunal does not accept that any of those matters demonstrate that the recording of the applicant stating to the delegate that he stayed with [Relative B] for [under a month] and not six or seven months as he had told the Tribunal was the mistake of the interpreter used at the interview with the delegate.

20. To the delegate, the applicant said that after he left [Relative B]’s home he went to the home of a friend.  The delegate asked the applicant the name of his friend and the applicant gave a name for that person (‘BB’).  The delegate asked the applicant where the friend lived and he said in the village of CC in the Punjab.  The delegate then asked the applicant how long he stayed with this friend and the applicant said that he stayed there about one month. The delegate asked the applicant what happened after he left that place and he said that he kept moving, staying at the home of [Relative A] in AA. 

21. The Tribunal reminded the applicant of this evidence to the delegate and put to him that it was inconsistent with his evidence to the Tribunal that after fleeing from the home of [Relative B] he went to the home of [Relative A] in AA.  He did not mention to the Tribunal staying anywhere else between leaving [Relative B]’s home and arriving at [Relative A]’s home.  In response, the applicant said that in fact the name BB was the name of a location not a person and after leaving [Relative B]’s home he went to the home of [Relative A], to a place he named as BB and other friends’ places.  He did not account for his failure to mention as he had claimed to the delegate that from the home of [Relative B] he went to the home of a friend for one month and then to [Relative A]’s home in AA.[5] 

    Conclusions on credibility

    [5] This inconsistency is not ‘adverse information’ within the meaning of the Act.  See SZBYR v MIAC (2007) 235 ALR 609 at [18].

22. Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false.  Accordingly, the Tribunal disbelieves the applicant’s claims about having a friend named X and his claims about being involved in altercations with X’s rival Y and that person’s group.  The Tribunal disbelieves his claims about people from Y’s group harming him, including assaulting him, shooting at him and enquiring with others as to his whereabouts.  The Tribunal does not believe that the applicant left his native village and lived in other places in India for his safety. 

23. At the conclusion of the hearing, the applicant asked the Tribunal if he could have time to produce a newspaper report as evidence that in [2015] Y shot X while X was in police custody.  The Tribunal refused that request as that would do no more than demonstrate that a certain individual in India was killed by another individual. That would not demonstrate that the applicant personally knew these people and that the account he has related about his dealings with them is true.

24. Then the applicant asked the Tribunal if he could provide a telephone number for a woman who he said was his [Relative A] with whom he stayed for a period in AA.  When asked what evidence she would provide, he said that she could state that he stayed with her before coming to Australia.  The Tribunal also declined this request as evidence of that nature would still not demonstrate that, even if the applicant did stay with that person, it was because of his fear of Y and his group.  The applicant made no claim that [Relative A] witnessed this group harming or holding any interest in him (unlike [Relative B] who he claimed was spoken to by this group at his home). 

25. Overall, the Tribunal considered that assertions by this person about the applicant staying with her and whatever he may have told her as to why he needed to stay there, would not overcome the concerns the Tribunal holds about the applicant’s credibility which significantly discredit him as a witness.  If the applicant had truly fled from India in fear of harm from these people and after being attacked and pursued by them in India, he would not have waited three years to apply to remain in Australia on that basis.  That issue combined with the areas of inconsistency in his evidence discussed above firmly demonstrates that his account is false.

26. To the delegate, the applicant claimed that Y had posted videos to an internet website in which he made threats to harm the applicant.  He provided no further information about that and even if such videos existed that would still not explain or overcome the consistencies in the applicant’s evidence and the inordinate delay on his part in applying for protection.  In the light of those matters, if such videos exist, the Tribunal could not give evidentiary weight to them nor regard their content as corroborative. 

1. The sole ground on which the applicant claims protection is his fear of harm from Y and his group. For the reasons given above, the Tribunal finds the applicant’s evidence about that to be false. In view of that finding, there is no credible evidence before the Tribunal as to why the applicant left India. There is no credible evidence as to why he does not want to return there. There is no credible evidence that the applicant suffered harm in India and there is no credible evidence that anyone in India seeks to harm him. Accordingly, there is not a real chance that the applicant will suffer serious harm in India. He does not hold a well-founded fear of persecution within the meaning of s.5J(1) of the Act.

2. The Tribunal had access to the department files relating to the application made by the applicant for a [visa]. The department issued a certificate under s.376 of the Act with respect to a file note made by an officer of the department containing assertions that a particular agent ‘linked’ to the application was ‘associated’ with the provision of false documents with respect to other applicants.[6]  However, the applicant was ultimately granted a [visa] indicating that the department was satisfied with the documents he produced.  There was no need for the Tribunal to disclose this information to the applicant as it is not relevant to the grounds on which this review has been determined.  The Tribunal determines this review on the basis of the applicant’s lack of credibility with respect to the delay in seeking protection and inconsistencies in his evidence about certain events he claims took place when he was in India.  The manner in which the applicant obtained a [visa] is not relevant to those matters.   

   Complementary protection

   [6] The exact same information appears on a different department file made available to the Tribunal and related to the same application but which was not the subject of any certificate for non-disclosure.

3. With respect to the complementary protection criterion, the Tribunal repeats its finding that the applicant is not a witness of truth and the account of events on which his protection claims are based is false. For the same reasons the Tribunal finds that there is not a real chance that the applicant will suffer serious harm in India, it also finds that there is not a real risk that he will suffer significant harm.  Accordingly, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to the receiving country, India, there is a real risk that he will suffer significant harm.

   CONCLUSIONS

4. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

5. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

6. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

   DECISION

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

   Paul Millar
   Member