1809750 (Refugee)
[2024] AATA 3043
•24 April 2024
1809750 (Refugee) [2024] AATA 3043 (24 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Rayan Hazim (MARN: 1685918)
CASE NUMBER: 1809750
COUNTRY OF REFERENCE: India
MEMBER:Scott Clarey
DATE:24 April 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 24 April 2024 at 5:12pm
CATCHWORDS
REFUGEE – protection visa – India – familial land dispute – brother’s marriage to poor family – threats from brother’s in-laws directed at applicant – applicant’s future inheritance of family assets – applicant married after marriage of younger brother – fear of harm due to my extended absence – mental health issues – long visa history in Australia – credibility issues – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
Kavan v MIMA [2000] FCA 370
MIAC v SZQRB [2013] FCAFC 33
Zhang v RRT & Anor [1997] FCA 423Any 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 dependants.
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 Home Affairs on 13 March 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, [the applicant], who is a citizen of India, applied for the visa on 7 November 2016. On 13 March 2018 the delegate refused to grant the visa on the basis that they were not satisfied [the applicant] was owed protection in Australia. On 9 April 2018 [the applicant] applied to the Tribunal for review of this decision. He provided the Tribunal with a copy of the delegate’s decision record. [The applicant] attended an interview conducted by the Department on 11 December 2017.
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.
[The applicant] is [an age]-year-old man who was born in [Village 1], India on [date]. According to information provided with the protection visa application form, [the applicant] is of Indian ethnicity and of the Hindu faith. He can speak the Hindi, Telugu and English languages. [The applicant] has a father and younger brother living in India. His mother passed away in April 2021. [The applicant] completed high school in India in [year] and he subsequently studied and completed (in [year]) a bachelor’s degree in [Course 1] at a university in India. He also studied a range of courses in Australia including a certificate in English, a diploma in [Course 2], and an advanced diploma of [Course 2] at education institutes in Melbourne. I accept these biographical details to be true.
I note that there were a series of delays in relation to the hearing of this case by the Tribunal. The case was previously constituted to a former Member of the Tribunal who invited the applicant to a video hearing on 25 February 2022, but this hearing was postponed at the applicant’s request. The former Member then held a hearing with the applicant on 17 March 2022 (herein the first hearing). Following the hearing, and prior to a decision being made by the Tribunal (as previously constituted), the Member (previously constituted to the case) left the Tribunal. The case was subsequently reconstituted to me. The applicant appeared before the Tribunal (as presently constituted) in person on 13 October 2022 to give evidence and present arguments (herein the second hearing). The applicant was represented in relation to the review. The representative attended both Tribunal hearings.
I note the following summary of [the applicant]’s extensive migration history in Australia that was drawn from the Department’s decision record. [The applicant] also provided a summary of this information in his statutory declaration (signed on 10 March 2022) that was provided to the Tribunal. I also discussed elements of this history with [the applicant] at the second hearing.
Date Event details [Date] February 2008 Arrived in Australia as the holder of a TU-572 Student visa [Date] June 2009 Departed Australia [Date] July 2009 Arrived in Australia as the holder of a TU-572 Student visa 16 April 2011 Lodged application for a TU-572 Student visa onshore 27 May 2011 Student visa (TU-572) granted onshore 26 April 2012 Lodged a further application for a TU-572 Student visa onshore 7 May 2012 Student visa (TU-572) granted onshore [Date] July 2012 Departed Australia [Date] September 2012 Arrived in Australia as the holder of a TU-572 Student visa 24 June 2013 Lodged a further application for a TU-572 Student visa onshore 2 August 2013 This application was refused 14 August 2013 Review commenced at the Migration Review Tribunal (MRT) 24 February 2014 The MRT review Set Aside, remitted with direction 14 October 2014 The Student visa application was refused 28 October 2014 Review commenced at the MRT 23 June 2015 The MRT affirmed the decision [Date] July 2015 Review commenced at the Federal Circuit Court [Date] April 2016 The anneal was dismissed [Date] April 2016 Review commenced at the Full Federal Court [Date] August 2016 The anneal was dismissed 21 September 2016 Requested Ministerial intervention 26 September 2016 The request was not referred 7 November 2016 Applied for a XA-866 Protection visa; associated Bridging visa granted
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.
For the reasons set out below, I have concluded that the decision under review should be affirmed.
Claims and evidence
I have had regard to all of the information on the Department’s file and the Tribunal’s file. I have thoroughly reviewed the recording of the first hearing and discussed various specific elements of it with [the applicant] at the second hearing.
[The applicant] set out his claims for protection in a statutory declaration (7 November 2016) provided with his protection visa application form that stated the following (unedited):
I, [applicant name], [address], [occupation], make the following declaration under the Statutory Declarations Act 1959:
1.I arrived in Australia in 2009 in order to study a diploma in [Course 2] at [College 1].
2.In March 2011, my younger brother [Brother 1]got married to [Ms A]. The couple had been dating for a number of years.
3.[Ms A]'s and our family have never gotten along in our town in India. Her family are corrupt and of bad character. This is a feeling felt by many in our community about her family. Accordingly, my brother's marriage reflects poorly onto our family in that we would have someone of such weak repute in our family.
4.We constantly expressed our concerns to my brother and informed him that we were of the belief that he could do much better in his choice for a wife.
5.Since the beginning of their involvement with each other, I and the rest of my family have disapproved of [Brother 1] and [Ms A]'s relationship. [Ms A]'s family is well aware of the fact that we do not approve of their union.
6.It is part of our culture that the eldest son, which is me in our family, be the first child to get married. The marriage of my brother, before I choose a wife is therefore viewed as disrespectful of the traditions and value which are very important to my family.
7.No members of my family attended the wedding of [Brother 1] and [Ms A], as we did not want to give our blessing to their marriage.
8.[Ms A]'s family contribute much of the blame of the non-acceptance of [Ms A] onto me as I as the eldest son in the family have not provided my blessing to their relationship.
9.A number of months before the marriage, whilst I was in Australia, my brother approached my parents and informed them that his future in laws had been making numerous threats that should I return to India that they would try and hurt me.
10.These threats also meant that my brother was beginning to have second thoughts about marrying [Ms A].
11.In early 2011 a few months before his marriage, [Brother 1] went on a trip with a few of his friends to Hyderbad. Unbeknown to my brother, these friends were close with [Ms A]'s family. The friends kidnapped him and took him away and began to make threats that he had no choice but to marry [Ms A] unless he wanted members of his family to be hurt. Out of fear of the safety of his family, [Brother 1] agreed to proceed with the wedding.
12.The reason for these threats is that they [Ms A]'s family are very poor. I however, as the eldest son in my family am entitled to ownership in our family's agricultural lands which produce [crops]. I alsohave ownership in our two houses in our village, [Village 1].
13.These two houses are multilevel properties which stand out as there are very few properties of this size in our area, which makes my family and our assets an easy target.
14.My brother's in laws are hoping that should I die, that the entitlements in these house would flow onto my brother and thus come into their family.
15.I revisited India in June 2012 to spend some time with my family. My parents had not told me abou}\ the threats that were being made as they did not did not want to concern me.
16.One day whilst I was at my house, six members of my brother's in laws came to the outside of our house and started threatening me. When we would not let them into our house they spent 30-45 minutes abusing me from the outside, threatening that they knew some 'very bad people' and that they were going to make sure I die. This resulted in a very public scene, which meant that our entire community now knows of the tensions between the families and the seriousness of the threats that have been directed towards us.
17.After the incident I questioned my parents as to whether this had happened before. It was at this time, that they revealed to me that they had been threatened on numerous occasions in the lead up to my visit.
18.These threats generated much concern for my personal safety and I feared that any trip I took outside of my family home could result in serious injury.
19.Accordingly, I spent the rest of my trip refusing to leave my house, except for visits to religious temples as I knew that my brother's in laws would not try to hurt me in a place of worship.
20.I was able to leave India unscathed as my refusal to enter public places meant that my brother's in laws were never provided an opportunity to inflict harm upon me.
21.My brother's in laws have connections with some very bad people and given the financial benefit they are at stake of receiving should I be killed, they will be willing to pay or engage with whatever or whoever is necessary in order to hurt me.
22.My brother's in laws continue to harass my family and ask about my whereabouts.
23.Should I return to India, even if I relocated, my brother's in laws would find out about my location, because they would keep questioning those close to me about my return. They have already engaged in bullying of people in my community about my whereabouts in case I have already returned to India, without their knowledge.
24.Our entire community knows of the issues and fights between my family and my brother's in laws. Should I return to India, there are many people who if they were to spot me would inform my brother's in laws in order to gain some financial reward or to carry favour with my brother's in laws. I camnot live the rest of my life in India in fear that I will be noticed by someone from my community.
25.My brother's in laws are hoping that by making these threats that I will relinquish my rights to my properties and just hand it over to my brother, which will mean as a result that [Ms A] will obtain rig ts and access to the property as well. These properties and lands have been in my family for a very long time. My grandfather and father worked very hard for decades to build up our family's asset pool and their hard work should not be forfeited because of the thuggery of my brother's in laws.
26.My brother can't divorce his wife because he lives in great fear of what his in laws will do to him and to other members of our family should he put an end to his marriage. He has been told by [Ms A] that her family will carry out revenge if he was to divorce her. My brother does not want to put my entire family's life in greater danger.
27.My family have reported these repeated threats to the police. However, the police have informed us that since we have not yet been attacked that they are powerless to assist in the matter, due to the high volume of cases that they are dealing with.
28.The matter was referred to community leaders but my brothers' in laws refused to take the matter seriously and made empty promises about stopping the threats.
29.My brother no longer lives with his wife but they do communicate on the phone due the tensions caused by their respective families fighting. My brother has been able to confirm in these phone calls that the threats that have been communicated towards me are stilling being made and that should I return to India I remain a target to be killed.
30.Recently in my village there has been a number of deaths resulting from family disputes about division of assets and property allocation. It is common for people in my village to lose their lives because of the property they own. I do not wish to become one of these murdered individuals.
31.I have not previously applied for protection in Australia as I was previously on a valid student visa which allowed me to stay legally in the country. This visa unfortunately expired when I was unable to stay enrolled in my course for a short period of time due to a racially fuelled attack which I was subject to.
32.I intend to submit a further supplementary statutory declaration.
I note that [the applicant] also submitted a further statutory declaration to the Tribunal (dated 10 March 2022) that stated the following:
I, [applicant name], [address], Unemployed, make the following declaration under the Statutory Declarations Act 1959:
1. I make this statement of claim to apprise the Administrative Appeals Tribunal of my circumstances since the refusal of my application for a Protection (Class XA) visa on 13 March 2018.
2. In this Statutory Declaration, I would like to address why I fear returning to India, on convention grounds of membership of the following particular social groups:
a. Men subject to harm for reasons of a familial land dispute.
b. Fear of harm due to my extended absence from India.
c. Sufferers of mental health issues unable to access treatment in India. I have been diagnosed as suffering from a very high level of psychological distress, including experiencing a severe level anxiety and an underlying fear of being murdered.
3. I refer to my previous statutory declaration dated 7 November 2016 and confirm its details to be true and correct. I reiterate the sentiments expressed in the aforementioned statement.
BACKGROUND
4. I was born on [date] in [Village 1], India. My family are Hindu and so am I and we are from the Telengana province. I have been living in Australia since December 2008.
5. My father[and] my [mother](born [date] and deceased [April] 2021) had two children together, namely:
a. My brother, [Brother 1]; and
b. Myself
6. My mother recently passed away after terminal illness [in] April 2021. Although I knew that my mother was ill, my parents did not advise me that her condition was terminal. I was very close to my mother and my mental health has suffered significantly since her passing. Before she passed away, she begged me not to return to India under any circumstances.
IMMIGRATION HSTORY
7. I arrived in Australia as the holder of a TU-572 Student visa [in] February 2008.
8. [In] June 2009, I departed Australia later returned [in] July 2009.
9. On 16 April 2011, I lodged an application for a further TU-572 Student visa which was granted on 27 May 2011.
10. On 26 April 2012, I applied for another TU-572 Student visa, which was granted on 7 May 2012. On 22
11. July 2012, I departed Australia, before returning [in] September 2012.
12. On 24 June 2013, I lodged a further application for a TU-572 Student visa, which was refused on 2 August 2013. I commenced a review at the Migration Review Tribunal on 14 August 2013.
13. On 24 February 2014, the MRT set aside the Department's decision to refuse my Student visa application.
14. On 14 October 2014, the application was refused.
15. An application for review affirmed the Department's decision. I commenced a review at the Federal Circuit Court [in] July 2015, which was dismissed [in] April 2016. An application for review before the Full Federal Court was dismissed [in] August 2016.
16. On 21 September 2016, I sought Ministerial Intervention, which was not referred on 26 September 2016.
17. On 7 November 2016, I applied for a Protection visa, and was granted a Bridging Visa E in association with such application.
18. I have not returned to India since 2012.
CLAIMS FOR PROTECTION
19. I originally arrived in Australia in 2009 to study [Course 2] at [College 1].
20. I now fear returning to India because I am a member of a particular social group, namely, young men at risk of being harmed or killed because of a family inheritance issue.
21. In March 2011, my younger brother [Brother 1] married [Ms A]. [Ms A]'s family does not get along with mine, particularly because [Ms A]'s family are corrupt and of bad character. My family and I did not agree to [Brother 1] and [Ms A]'s marriage. Moreover, based on cultural norms, I should have been married before my younger brother. It brought shame to my family that I was not married before [Brother 1], and it continues to bring shame to my family in the community. My brother's marriage reflects poorly on our family in that we would have someone of such weak repute in our family. We constantly expressed our concerns to my brother and informed him that we were of the belief that he could do much better in his choice for a wife.
22. [Ms A]'s family are aware of my dislike for their family and my disapproval of the marriage. My family did not attend their wedding to make our disapproval evident. [Ms A]'s family are aware that I am the main reason behind my family's disapproval of their marriage, as I am the eldest son in the family.
23. When I travelled to Australia, my brother approached my parents and informed them that [Ms A]'s family were making threats against me, and threatened to harm me if I ever returned to India. The behaviour of [Ms A]'s family made my brother second guess his decision to marry [Ms A], which obviously went against their interests. [Ms A]'s family is very poor, and sought to profit from [Brother 1]'s marriage to [Ms A].
24. In 2011, prior to their wedding, my brother was kidnapped by men he thought were his friends, during a trip to Hyderabad. These so-called friends were in fact close with [Ms A]'s family. They kidnapped my brother and took him away, threatening my brother that if he did not continue with the marriage, my family and myself to be harmed. The reason for these threats stemmed from [Ms A]'s family being poor, and they wanted to ensure that their family was financially secure following [Ms A]'s marriage to my brother. [Brother 1] felt as though he had no choice but to proceed with the wedding.
25. Being the eldest son in my family, I am entitled to ownership of my family's agricultural lands, which produce [crops]. I also am entitled to ownership in my family's two houses in our hometown of [Village 1]. These two houses are multilevel properties which stand out as there are very few properties of this size in our area, which makes my family and our assets an easy target.
26. [Ms A]'s family are waiting for me to die so that the entitlements will pass to my brother, and therefore onto their family.
27. In June 2012, I travelled to India to visit my family, as I was unaware of the threats and my brother's kidnapping at the time. My family did not tell me about the threats. One day, during the trip, I was at home when six members of [Ms A]'s family attended the house and began threatening me. When we would not let them into our house, they spent 30-45 minutes abusing me from the outside of my house threatening that they knew some 'very bad people' and that they were going to make sure I die. This resulted in a very public scene, which meant that our entire community now knows of the tensions between the families and the seriousness of the threats that have been directed towards us.
28. After the incident I questioned my parents as to whether this had happened before. It was at this time, that they revealed to me that they had been threatened on numerous occasions in the lead up to my visit.
29. These threats generated much concern for my personal safety and I feared that any trip I took outside of my family home could result in serious injury.
30. I spent the remainder of the trip in hiding, as I knew from their visit that they intended to threaten me into relinquishing my rights to the properties and assigning them to my brother so that they too could benefit from them. I was able to leave India unscathed as my refusal to enter public places meant that my brother's in laws were never provided an opportunity to inflict harm upon me.
31. Despite my family reporting the threats to police, the police have informed them that since they had not yet been the subject of a physical attack, they are powerless to assist in the matter, due to the high volume of cases they are investigating.
32. [Ms A]'s family have connections with some very bad people and given the financial benefit they are at stake of receiving should I be killed, they will be willing to pay or engage with whatever or whoever is necessary in order to hurt me.
33. [Ms A]'s family continue to harass my family and ask about my whereabouts. Should I return to India, even if l relocated, [Ms A]'s family would find out about my location because they would keep questioning those close to me about my return. They have already engaged in bullying of people in my community about my whereabouts in case I have already returned to India, without their knowledge. Our entire community knows of the issues and fights between my family and [Ms A]'s family.
34. Should I return to India, there are many people who if they were to spot me would inform [Ms A]'s family in order to gain some financial reward or to carry favour with [Ms A]'s family. I cannot live the rest of my life in India in fear that I will be noticed by someone from my community.
35. [Ms A]'s family are hoping that by making these threats that I will relinquish my rights to my property and just hand it over to my brother, which will mean as a result that [Ms A] will obtain rights and access to the property as well. These properties and lands have been in my family for a very long time. My grandfather and father worked very hard for decades to build up our family's asset pool and their hard work should not be forfeited because of the thuggery of [Ms A]'s family.
36. My brother can't divorce his wife because he lives in great fear of what his in laws will to do to him and to other members of our family should he put an end to his marriage. He has been told by [Ms A] that her family will carry out revenge if he was to divorce her. My brother does not want to put my entire family's life in danger.
37. My family have reported these repeated threats to the police. However, the police have informed us that since we have not yet been attacked that they are powerless to assist in the matter. The matter was also referred to community leaders but my brother in laws refused to take the matter and seriously and made empty promises about stopping the threats.
38. In 2011, my brother and his wife had marital problems and separated for a short period of time. They have since reconciled and resumed their relationship. My parents told me that they reconciled in 2012 when I returned to Australia.
39. In [Village 1], there have been a number of deaths resulting from family disputes about division of assets and property allocation. It is common for people in my village to lose their lives because of the property they own. I do not wish to become one of these murdered individuals.
40. Whilst I acknowledge that I have been present in Australia since 2008 and only applied for protection in Australia in 2016, I say that as I was previously on a valid student visa which allowed me to stay legally in the country, I did not think that I needed to seek another visa. This visa unfortunately expired when I was unable to stay enrolled in my course for a short period oftime due to a racially fuelled attack which I was subject to.
41. The threats from [Ms A]'s family have continued up until now. I used to speak with my parents consistently multiple times a day. Since my mother passed, I call my father multiple times a day. My parents regularly passed on messages, of [Ms A]' s family threatening to kill me to gain access to my property entitlements, especially since my mother passed away.
42. I am fearful of the Scheduled Castes, particularly [name deleted], who is close to my brother. My parents would regularly tell me that my brother was still friends with [that person] and they were waiting for me to return to India.
43. I fear that I will be persecuted by [Ms A]'s family, and neither my family nor the Indian authorities will be able to protect me. I will be unable to relocate in India as I have no savings or income available to me in India. Moreover, it is not possible to relocate freely within India because I speak Telugu, which precludes me moving to any other state in India as I will be unable to communicate. I will also struggle to survive in any area of India that I relocate to, as I will have no access to my support network, gainful employment, nor will I be able to speak the dialect. I am fearful of being trafficked for organs on the black market, as these gangs often target people who are newly moved and alone.
DEPARTMENTAL INTERVIEW AND DECISION RECORD
44. I recall that my Protection visa interview on 11 December 2017 only ran for approximately 10-15 minutes. The case officer did not ask me many questions at all. I thought my interview was supposed to take 2-3 hours, from my knowledge. I believe this is because I was unrepresented during the interview. I have genuine concerns that the case officer had already made up her mind about my application before I even began speaking. This was evident from her manner of questioning and the duration of the interview, as well as the brief decision record. I did not have access to an interpreter during the interview either.
45. I was not asked about my mental health by the case officer, despite me bringing this up during the interview.
46. Despite explaining how the properties were controlled by me by means of documents of General Power of Attorney, and providing her with it during the interview, the case officer didn't ask me anything about it. I now provide this document to the Tribunal again, as I do not believe the case officer took it into account when determining my application.
CHANGED CIRCUMSTANCES
47. On 2 June 2014, the state of Telengana was divided from Uttar Pradesh. The decision to do so significantly impacted property value in Telengana, and the properties I am entitled to have increased in value markedly.
48. I thought it pertinent to include a list of the properties I am entitled to, which my brother and [Ms A]'s family seek to acquire:
a. Agricultural land in [deleted] measuring 4 acres in [Village 1], [deleted] District; this property was owned by my mother.
b. Agricultural land in [deleted] to an extent of half an acre in [deleted] Urban District; this property was owned by my mother.
c. Agricultural land in [deleted] measuring 1 acre in[deleted] Rural District; this property was owned by my mother.
d. Agricultural land in [deleted] measuring 2 acres in [Village 1], [deleted] Rural District; this property was owned by my mother.
e. House No. [deleted] measuring 150 square yards in [deleted] Urban District; this property was owned by my mother.
f. House No [deleted] measuring 0.05 of an acre in [Village 1] village, [deleted] Rural District; this property was owned by my mother.
g. House No [deleted] measuring 300 square yards in [deleted] Rural District. This is the property where my father resides, and I lived there prior to moving to Australia. This property was owned by my mother.
49. Recently, I closed the home loan on my mother's account following her passing, and had to liaise [via] email in order to do so. This further demonstrates my control over the properties.
50. Since the decision to refuse my application for a Protection visa, my mental health has suffered significantly. I believe that I am at risk of suffering even more of a decline in my mental health in the event that I am returned to India.
51. I will not be able to access mental healthcare should I be returned to India.
CONCLUSION
52. I cannot return to India under any circumstances due to the high probability of being subjected to persecution. I fear that [Ms A]'s family will inflict serious harm upon me and kill me due to their perceived entitlement to my family's land. Such harm ought to be perceived in light of the death threats I continue to receive.
I have had regard to several other submissions that have been made to the Tribunal by [the applicant]. These include a legal submission from his representative dated 9 March 2022, a ‘declaration-cum-will’ signed by [the applicant]’s (now deceased) mother on 20 July 2020 and a ‘India Non-Judicial’ declaration dated 19 July 2016 from [the applicant]’s parents. Given the credibility concerns I have relating to [the applicant]’s claims (discussed below) and the close familial relationship of the declarants, I place little weight on this ‘India Non-Judicial’ declaration.
On 31 March 2022, [the applicant]’s representative made post (first) hearing submissions that included a ‘Psychosocial Report’ (dated 14 March 2022) relating to [the applicant] written by [Mr B] from ‘[name deleted]’ who claims to be a ‘certified neuropsychotherapist’ and an ‘accredited mental health social worker’. I note there was also another ‘Psychosocial Report’ (dated 6 August 2021) relating to [the applicant] written by [Mr B], submitted to the Tribunal on 9 September 2021. As was discussed with [the applicant] at the second hearing, as [Mr B] is not a registered psychologist and does not appear to hold any relevant tertiary qualifications in psychology, I have placed little weight on this ‘Psychosocial Report’ or any submissions from [Mr B] relating to [the applicant]’s claimed mental health issues. I note there is very little other documentary evidence from a qualified medical professional before the Tribunal relating to [the applicant]’s health (including mental health).
EVIDENCE BEFORE THE TRIBUNAL
[The applicant]’s claims have been thoroughly detailed in his various submissions to the Department and Tribunal, including in his two comprehensive statutory declarations reproduced above. This includes also his oral evidence at the first Tribunal hearing, a recording of which I had listened to in preparation for the second hearing. At the second Tribunal hearing I discussed at length with [the applicant] various aspects of his claims.
From the outset I note that there were significant credibility issues arising from specific information provided by [the applicant] at the second hearing. During the hearing I found [the applicant] to be frequently evasive, rambling, hesitant and vague when answering direct questions. He gave confused and at times incoherent explanations of a number of aspects of his claims. I note that significant time and effort was spent at the hearing to ensure that [the applicant] understood what was being asked of him, including rephrasing or repeating questions when required.
I discussed with [the applicant] issues relating to his family’s significant assets, primarily in land holdings. I accept that [the applicant]’s family has extensive assets (as listed in paragraph 48 of his statutory declaration dated 10 March 2022), primarily in the form of land, the combined value of which is likely more than $A1 million.
I discussed with [the applicant] at the second hearing why his brother and his in-laws would be targeting him in relation to these assets with a view to accessing this inheritance when his father was still alive. [The applicant] stated words to the effect that everything came under his name and this was an ‘automatic’ function of Indian law. When I questioned this, [the applicant] gave a vague and at times confused response. He said his father manages these assets and makes a return on the land through leases and other arrangements. He initially appeared to suggest that his father transferred all of the proceeds to him ([the applicant]) but then stated that over the last 12 months he had been transferred a few thousand dollars by his father on three to four separate occasions that roughly equalled half of the income from the family’s land holdings. Although his oral evidence on this was at times confused and hard to follow, [the applicant] appeared to state that the assets were still the legal property of his parent’s (or more accurately now his father since his mother had passed away in 2021) but that he had a legal claim to them.
I discussed with [the applicant] issues related to his brother’s claimed marriage in 2011, when and how this marriage came about and the timeline of when and where [the applicant] became aware of the claimed problems between the families and later the claimed threats. I note that [the applicant]’s evidence in relation to his brother’s relationship at the second hearing was at times vague, offpoint and confusing. [the applicant] stated that his brother became involved with a woman called [Ms A] in 2010 and they dated in secret for a period. [The applicant] claimed his brother was then threatened by [Ms A]’s family that if he didn’t marry her, they would kill him. He said his brother was forced to marry [Ms A] in March 2011 against his will by her family under threat of death. He said his parents at this stage did not know [Ms A] existed, and they were only told about the marriage approximately one week after the wedding had occurred. I asked [the applicant] when his parents had learned that his brother had only married [Ms A] under violent coercion and that he had not done so voluntarily. [The applicant] gave a rambling response, stating words to the effect that they learned her brother was being forced into the marriage against his will a few weeks after they were told of the wedding in 2011.
[The applicant] said his parents offered to take his brother back following the wedding but his brother was too scared to accept. He said his family then cut his brother off and refused to speak with him. I asked [the applicant] why his family would react this way by cutting his brother off if they understood that he was being forced into this relationship against his will through violent coercion and was essentially being held hostage by [Ms A]’s family. [The applicant] gave a confused and at times hard to follow response. He stated words to the effect that eventually his brother did consent to the marriage and took the side of [Ms A]’s family. I asked [the applicant] when his brother had gone from being coerced into the relationship at the threat of his life to being a willing participant in the arrangement. After a series of vague and confusing responses he said that his brother did not become a willing participant in the marriage until 2016, approximately four to five years after the wedding. Despite several attempts at trying to understand why his brother had eventually become a willing participant in the relationship, this question was never adequately answered by [the applicant].
I discussed with [the applicant] about when he claimed to have become aware of this situation with his brother. He said it was during a trip back to India he made in 2012. He said his parents didn’t tell him right away when he returned and eventually took him aside to tell him. He also said a cousin had told him about his brother’s situation and then he had discussed it with his mother. I discussed with [the applicant] the claimed incident in 2012 when a group of [Ms A]’s family members, including a brother-in-law, her mother and a sister and a thug who he said was a known murderer, came to [the applicant]’s family’s house where he was staying. [The applicant] stated that the group stood outside the house and shouted for him to come out of the house because they had an intent to kill him. He said they shouted their intent that they wished to kill him. He said he did not go outside the house and they did not attempt to get into the house, they just stood outside shouting the threats and stating their intention to kill him.
I asked [the applicant] again at this point why this group were targeting him specifically and threatening to murder him. He gave a vague and at times confused response stating words to the effect that it was because they believed he ([the applicant]) was behind his family’s disapproval of his brother’s marriage. He said they assumed he was standing with his family. I clarified with [the applicant] about whether the motivation for the mob trying to kill him was because of the family disapproval or because of the inheritance issue. [The applicant] then appeared to change his answer and stated words to the effect that it wasn’t about the family’s disapproval it was about the family’s wealth, which his brother and [Ms A]’s family wanted access to. I asked [the applicant] again why he would be the primary target given that he did was not the legal owner of the property and that killing him would not immediately or obviously secure his brother’s (or [Ms A]’s family’s) access to his family’s assets, which at that time were in his parents’ name. I note that [the applicant] struggled to provide an answer to the question of why he was their primary target.
I discussed at length with [the applicant] if the claimed incident at the family house in 2012 had been reported to the police. [The applicant] stated words to the effect that the family had told the police but the police had taken a note and didn’t file a case. They told the family that if the mob returned they will take action. He said this was because the police were too busy dealing with other crime and they don’t get involved in family matters. I discussed with [the applicant] comments he had made at the first hearing in relation to the same question. I reminded [the applicant] of his answer in the first hearing where he stated that his parents had gone to the police station and made a complaint about the people who had attended the house and threatened to kill him. He had said at the first hearing that the police gave the people a warning and let them go. In response to this question at the second hearing [the applicant] stated words to the effect that the police had made them sign a document where some agreement was made about the underlying dispute. I also brought to [the applicant]’s attention at the second hearing comments he made in his statutory declaration of 10 March 2022 related to the police report after this incident that stated:
Despite my family reporting the threats to police, the police have informed them that since they had not yet been the subject of a physical attack, they are powerless to assist in the matter, due to the high volume of cases they are investigating
I discussed with [the applicant] that these statements seemed to be inconsistent; at the second hearing and in his statutory declaration of 10 March 2022, he implied that the police had not responded because they were too busy to deal with ‘family matters’ but at the first hearing he had suggested that the police had responded and acted on the complaint by warning the family members who had attended his house before letting them go. [The applicant] responded with words to the effect that he didn’t ask his parents about what had happened after he left India in 2012. When I questioned [the applicant] further about this discrepancy he said that it was a long time ago and ‘maybe I might have forgot a few things’.
[The applicant] also mentioned an incident in July 2021 where he claimed his father was attacked by his brother and nearly killed by him. This claimed incident was also discussed at the first hearing. He said his brother attacked his father with a chair and broke his leg. He said there has been other violent incidents between his brother and father. When I asked [the applicant] if his father had reported these violent attacks to the police he said his father did not bother because the police ‘were helpless to assist’. I referred [the applicant] to his comments from the statutory declaration (quoted in paragraph 21 above) where he implied a violent attack would prompt police intervention. When I asked [the applicant] again why his father would not have reported these violent attacks to the police given the previous police advice he repeated that the police were helpless to assist in the matter.
I discussed with [the applicant] at the second hearing issues related to his mental health. He said he feared being killed and had nightmares about the claimed issues. I discussed with [the applicant]’s representative concerns I had about the reports about [the applicant]’s mental health that were provided by [Mr B], particularly in relation to [Mr B]’s lack of tertiary qualifications in psychology (outlined further above). I note that at the first hearing, when asked if he was on any medication prescribed by a doctor, [the applicant] said when he had consulted a doctor in the past he had been advised that he did not need medication because his issues at that time were not ‘high level’ or of significant severity and that he had been advised to do breath exercises and meditation instead.
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 (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.
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.
ANALYSIS OF EVIDENCE AND FINDINGS
Credibility
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
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 his younger brother and/or his brother’s wife’s family, including in relation to a dispute about inheritance. 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, generalised and/or off-point. This included evidence relating to the origins and reasons for the claimed dispute with his younger brother; when, why and how his brother had turned against the family; specific aspects of the claimed incident in India in 2012 where [the applicant] says his life was threatened; the general timeline of events that had given rise to the claimed dispute with his brother’s wife’s family; the specific threats made against him and the reasons why; issues relating to the police’s involvement after the claimed incident and the reasons why there had been such a long delay in him applying for protection after the incident had taken place (discussed in further detail below). As detailed above, I explained to [the applicant] at the hearing that I had significant, specific concerns about his credibility and various aspects of his evidence and gave him an opportunity to respond.
Delay in seeking protection
[The applicant] has a very long visa history in Australia. He first arrived in Australia in February 2008 on a student visa. He applied for a further student visa (Subclass TU-572) in April 2011 that was subsequently granted in May 2011. He applied for another student visa (Subclass TU-572) in April 2012 that was subsequently granted in May 2012. A further application by [the applicant] for yet another student visa (Subclass TU-572) was lodged with the Department in June 2013 but this was refused in August 2013. [The applicant] lodged a review of this refusal decision with the Migration Review Tribunal (MRT) in August 2013 (Tribunal case 1311681). Although the MRT set this decision aside in February 2014, the Department again refused the application in October 2014. [The applicant] again appealed this refusal decision to the MRT (Tribunal case 1417687), but the MRT affirmed the decision in June 2015. In July 2015 [the applicant] applied to the Federal Circuit Court for judicial review of the MRT’s decision. In April 2016 the judicial review was dismissed by the Federal Circuit Court. In April 2016 [the applicant] then appealed this decision to the Federal Court. In August 2016 the Federal Court dismissed the appeal. In September 2016, [the applicant] requested Ministerial intervention on his case but the request was not referred to the Minister. On 7 November 2016 [the applicant] applied for the protection visa under review.
I have serious concerns relating to the timing of the application for protection in considering the genuineness of [the applicant]’s claims to fear serious harm in India. I note that a delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm (see Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370).
I discussed with [the applicant] at length the issue of the delay in applying for protection of approximately four years between when he claimed to have first become aware of the threat to his life in 2012 and applying for protection in Australia in 2016, particularly given his very long engagement with Australia’s visa system with the Department, the Tribunal and the courts throughout the period in question. [The applicant] stated that he was studying and that ‘he didn’t focus much’ on the issues relating to the claimed threats to his life in India. I pressed [the applicant] on this point and asked why, if he had known murderers threatening to kill him, he would not take further steps to seek protection in Australia earlier than he did. [The applicant] responded that ‘at that time I wasn’t taking any legal advice’ and that he wasn’t aware he could apply for protection. I questioned [the applicant] further on this point and queried if he was taking legal advice relating to his various visa issues over that time period. He responded that ‘it was not legal advice just migration agent’. I clarified with [the applicant] directly if he was taking ‘migration/legal advice’ in relation to his various student visa applications and proceedings over this time or if he was handling these matters himself. [The applicant] responded ‘No I did myself I represent myself from memory and I just applied online myself’. I again clarified with [the applicant] and asked him if it was accurate that up until he engaged his current legal representative in 2016, he had not taken any legal advice in Australia in relation to any of his previous visa matters, that he was handling it all himself, that he had completed all of the visa forms himself. He said yes that was right.
Section 424AA
Potentially adverse information that was contained in the case records relating to [the applicant]’s previous MRT cases relating to student visa refusal matters (specifically Tribunal case number 1311681 lodged with the MRT on 14 August 2013 and Tribunal case number 1417687 lodged with the MRT on 28 October 2014) was discussed with [the applicant] at this point in the second hearing in accordance with s.424AA of the Act. I explained the relevance and the consequences of the information to [the applicant] and invited him to comment on or to respond to the information. Pursuant to s.424AA(1)(b)(iii), I advised [the applicant] that he may seek an adjournment to consult with his representative before responding to the information. [The applicant] took a brief adjournment to consult with his representative before responding orally at the hearing. He indicated he understood the relevance and the consequences of the information that had been put to him. [The applicant]’s specific responses are discussed below.
I put to [the applicant] information from the abovementioned Tribunal files that he had engaged a named representative who was his authorised recipient relating to both cases and who had corresponded multiple times to the Tribunal in both cases on [the applicant]’s behalf. I explained to [the applicant] that this could appear to contradict his oral evidence provided moments earlier that he had not had legal advice prior to engaging his current representative in 2016 and that he had handled the matters himself and completed all of the forms himself. [The applicant] responded by saying that he didn’t have a lawyer at the time, that he had a migration agent, but that the agent did not attend the Tribunal hearing. He said he believed legal advice to mean a lawyer not a migration agent. He said that the agent ‘was just helping to prepare the application and that’s it’. I discussed with [the applicant] further that it was in fact migration law in relation to his applications that the migration agent was assisting him with and I explained to him how this information may be relevant to my credibility assessment.
I also discussed with [the applicant] the broader issue not related to semantics, regarding the long delay of approximately four years between him claiming to have his life threatened in 2012 and ultimately applying for protection in Australia in 2016. I asked [the applicant], if he was paying for and receiving advice on Australian migration law from a migration agent throughout this time in relation to other visa issues and matters, how the issue of his life being at risk and the concept of protection was never discussed given the gravity of what he claimed was at stake for him. [The applicant] responded with words to the effect that it was a family issue and he had not discussed the issue of his life being under threat in India with his agent. I asked [the applicant] how, as a well-educated man who spoke close to fluent English, that he had not known, or sought to find out, anything about the protection visa system given his claimed circumstances with his life being at risk in India, and it was only when his other visa pathways had seemingly been exhausted in 2016 that he sought to find out about it. [The applicant] stated ‘I hide it in my brain I never expressed to anyone’. He reiterated that he did not start exploring those options until 2016 and wasn’t aware of the option of applying for protection prior to then.
I have considered [the applicant]’s responses but I am unconvinced by them and do not accept them. While I am willing to give [the applicant] the benefit of the doubt when it comes to the claimed misunderstanding between the use the terms ‘legal advice’ and advice from a migration agent, and while I accept that he did at one point mention a migration agent at the second hearing, [the applicant] repeatedly stated that he had handled his visa applications and matters all by himself. I clarified this point with him multiple times and he confirmed his answer. As is noted above, [the applicant] later admitted that the agent he had engaged over multiple years was ‘helping to prepare the application and that’s it’. I find [the applicant]’s initial answers in relation to not having received assistance with his visa matters and applications to be deliberately untruthful and misleading. I find that [the applicant] was consulting with a migration agent about aspects of Australian migration law relevant to his circumstances on multiple occasions in relation to multiple matters during the period between 2012 and 2016.
The broader, more salient issue on this point relates to why there was such a long delay in [the applicant] applying for the protection visa under review. I note that [the applicant] is a well-educated man who speaks close to fluent English who has had extensive experience of Australia’s migration system through multiple visa applications, reviews and appeals in the approximately eight years since he arrived in Australia in 2008 and him applying for the protection visa under review in 2016. I do not accept that he did not know until 2016, or had not sought to learn, anything about Australia’s protection visa system given the gravity of his claimed circumstances relating to him having had his life threatened in India from 2012 onwards. As is detailed above, I note that [the applicant] pursued various other visa avenues and applications during this period between 2012 and 2016 that were ultimately exhausted shortly prior to him applying for the protection visa under review in November 2016.
When this issue is considered in conjunction with my other credibility concerns (discussed further below), I find that this extended delay in applying for a protection visa of more than four years (between when he claimed to have learned his life was at risk in India in 2012 and lodging the protection visa under review in 2016) is not indicative of someone who fears for their physical safety. I do not accept that [the applicant] did not know about Australia’s protection visa system until 2016. I find that that [the applicant]’s persistence in pursuing various other (temporary) visa avenues rather than seeking protection earlier than he did, strongly suggests that he did not have a well-founded fear of persecution for the reasons claimed and that he made the protection visa application only when he had few other options to remain in Australia.
Conclusion on the claimed fear of harm from in relation to a dispute with his younger brother and/or his brother’s wife’s family
As noted above, I have serious concerns about the credibility of [the applicant]’s evidence relating to his claimed fear of harm from his younger brother and/or his brother’s wife’s family and/or their agents in India, including in relation inheritance issues. I note that [the applicant] provided evidence that was at various times hesitant, vague, evasive, incoherent and contradictory when questioned about specific details of his claims. As detailed above, this included evidence relating to the origins and reasons for the claimed dispute with his younger brother; when, why and how his brother had turned against the family; specific aspects of the claimed incident in India in 2012 where [the applicant] says his life was threatened; the general timeline of events that had given rise to the claimed dispute with his brother’s wife’s family; the reasons why specific threats were made against him; issues relating to the police’s involvement after the claimed incident and the reasons why there had been such a long delay in him applying for protection after the incident had taken place
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 regarding the serious threats he claimed to have been subjected to (and taking into account that [the applicant] is a tertiary educated man), 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 details relating to his claimed fear of harm in India.
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 note that there is very little documentary evidence to corroborate any of [the applicant]’s claims. I find various aspects of [the applicant]’s evidence in relation to having been threatened by his younger brother and/or his brother’s wife’s family and/or their agents in India, including in relation to an inheritance dispute, to be improbable, illogical, and ultimately, implausible. For these reasons, I do not accept that [the applicant] was ever threatened, harassed or pursued by his younger brother and/or his brother’s wife’s family and/or their agents in India and/or the Indian authorities or anybody else in relation to a family dispute or for any other reason. As is noted above, I find the long delay in applying for protection is not indicative of someone who has a well founded fear of persecution. It follows that I find that [the applicant] would not a face a real chance of serious harm amounting to persecution for reasons relating to a dispute with his younger brother and/or his brother’s wife’s family and/or their agents in India, or for any other reason, if he was to return to India in the reasonably foreseeable future. I find that [the applicant]’s fears of persecution on this basis are not well-founded.
Issues related to [the applicant]’s health
I accept that [the applicant] has previously claimed to suffer from mental health issues in the past. As noted above, I have placed little weight on any submissions made to the Tribunal by [Mr B] relating to [the applicant]’s claimed mental health issues because [Mr B] is not a registered psychologist and does not appear to hold any relevant tertiary qualifications in psychology. This was discussed with [the applicant] and his representative at the hearing. I note there is little other documentary evidence before the Tribunal from a qualified medical professional related to [the applicant]’s mental health. Given the available evidence, I am not satisfied that [the applicant] has any medical condition (including any condition relating to his mental health) that is relevant to the review at hand nor am I satisfied that [the applicant] would be unable to access any medical services and obtain medical treatment in India for any reason if it were required in the future. I do not consider that [the applicant] was hindered by his health in his ability to give evidence at the hearings.
Issues related to the return of failed asylum seekers
I note that in her submission of 9 March 2022, [the applicant]’s representative briefly raised the issue of Mr Muske potentially facing adverse treatment in India as a failed asylum seeker/returnee, although little evidence or justification was provided to support this claim. I note the following country information from the Department of Foreign Affairs and Trade country information report on India[3]:
DFAT is not aware of any evidence of mistreatment of returnees, including failed asylum seekers, by Indian authorities. The Australian Government through the Department of Home Affairs is required to notify Indian authorities prior to the arrival of escorted removals from Australia but does not track returnees after their arrival in India. Home Affairs does not routinely notify Indian authorities of unescorted returns and removals. UK Home Office reporting notes tracking and surveillance systems appear limited. DFAT assesses that failed asylum seekers are unlikely to encounter official discrimination upon return.
[3] DFAT Country Information Report India September 2023
Given the country information above, and after considering the personal circumstances of [the applicant], I find that he does not face a real chance of serious harm upon his return to India for reasons relating to him being a failed asylum seeker/returnee. I find that [the applicant]’s fears of persecution on this basis are not well founded.
I acknowledge that it may be difficult for [the applicant] to find work at least initially on return to India, given he has been out of the country for an extended period but I am not satisfied that such difficulties constitute a well-founded fear of persecution for a refugee reason. [The applicant] is a well-educated man with multiple qualifications. I also note his family holds significant wealth and assets that [the applicant] has stated he benefits from. [The applicant] did not indicate that he was ever prevented from obtaining work in India, or that he had been denied employment by anyone for any reason or that he feared he might be in the future. Taking into account these considerations, I do not accept that [the applicant] faces a real chance of serious harm including significant economic hardship that threatens his capacity to subsist; a denial of access to basic services, where the denial threatens his capacity to subsist; or denial of capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist (as per s 5J(5) of the Act). I find that any fears [the applicant] may hold in this regard are not well founded.
For the reasons outlined above I find there is not a real chance that [the applicant] would suffer persecution involving serious harm for reasons of his race, religion, nationality, political opinion (either actual or imputed), or his membership of a particular social group or for any other reason he has claimed, or can be distinguished on the information before me, by the his family, the authorities or anyone else if he returns to India now or in the reasonably foreseeable future. I find that he does not have a well-founded fear of persecution as defined in s 5J of the Act.
Conclusion – refugee grounds
Having considered [the applicant]’s claims both individually and cumulatively, all of the available evidence and relevant country information, I find that he 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.
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
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).
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.[4]
[4] 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].
[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 the Indian authorities, or anyone else, as a necessary and foreseeable consequence of him being removed from Australia to India.
Consequently, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that [the applicant] satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, [the applicant] does not satisfy the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Scott Clarey
MemberATTACHMENT - 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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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