1810383 (Refugee)

[2022] AATA 5212

1810383 (Refugee) [2022] AATA 5212 (8 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1810383

COUNTRY OF REFERENCE:                   India

MEMBER:Damian Creedon

DATE:8 February 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 8 February 2022 at 4:24pm

CATCHWORDS

REFUGEE – protection visa – India – religion – Muslim in Hindu-majority country – harassment, assault, threats and fear of harm from communal riots and government policies – vague and unpersuasive claims and evidence – no corroboration provided to support claim of being a Muslim activist – multiple returns – country information – low risk of harassment, discrimination and violence – members of family unit – Australian-born child has never travelled outside Australia – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65

Migration Regulations 1994 (Cth), Schedule 2

CASES

MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445

MIEA v Guo (1997) 191 CLR 559

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 March 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

   Background:

2. The applicants are citizens of India.  The primary applicant, the first-named applicant (applicant), arrived in Australia [in] March 2007 as the holder of a Student (TU572) visa.  The applicant was granted further temporary visas at the expiry of his Student visa, including a Temporary Graduate visa, and presently he holds a bridging visa. 

3. The second-named and third-named applicant are the applicant’s wife and son respectively.

4. The applicants applied for protection visas on 21 March 2017.

   Protection visa application:

5. In his protection visa application and supporting materials the applicant claims to fear returning to India on account of his identity as a Muslim and the policies and actions of the government in India in relation to Muslims.

6. The delegate refused to grant the visas on 19 March 2018 on the basis that the applicants are not refugees as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to their receiving country, there was a real risk they would suffer significant harm.

7. The applicants applied for a review of the delegate’s decision.

   Application for review:

8. The applicant appeared before the Tribunal on 22 December 2021 to give evidence and present arguments. The applicant was not represented in relation to the review. 

9. Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.

   consideration of claims and evidence

   The relevant law:

10. 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.

11. 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.

12. 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).

13. 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.

14. 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:

15. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection.

17. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Claims:

18. On his protection visa application forms the applicant made the following claims:

    a.He states that he is a Muslim and that the Central Government in India “completely” supports Hindus.

    b.He states that in 2002 Narendra Modi was the Chief Minister of Gujarat State and that he commanded riots and “killed thousands of Muslims”.

    c.He states that now that Modi is the Prime Minister of India, he is a “big threat” for Muslims in India, especially in the applicant’s state of Gujarat.

    d.As a Muslim he can be killed in “communal riots” in India.  He states that he and a friend were returning home and “Hindus” stopped them; he states that the Hindus killed his friend and that he ran away and was saved.  He states his fear that this could happen again.

    e.In 2002 he was “just saved” in the communal riots.

    f.He cannot move anywhere in India as Modi is now the Prime Minister and it is “very harmful for Muslims”.

    Evidence:

19. The Tribunal has before it a range of material, including, relevantly, copies of the following documents:

    a.The applicant’s protection visa application forms signed on 20 March 2017 (visa application);

    b.The applicant’s identity documents being a copy of his passport provided to the Tribunal at the hearing;

    c.The protection visa decision record dated 19 March 2018 (delegate’s decision record);

    d.The review application form which included a copy of the delegate’s decision record.

20. Prior to the hearing, in an email to the Tribunal dated 5 September 2018, the applicant made the following statement (uncorrected):

    As I have mentioned in my application that Narendra Modi who is Prime Minister of India is the biggest threat for me and my family if we go back to India. He is spreading hate rate in india on very larger scale and india is becoming very dangerous country for muslims to live. Narendra Modi was responsible for riots that took place in the Gujarat state and majorly in Ahmedabad city where I am from, he was actually chief minister of Gujarat at the time of riots. Gujarat state was definately very dangerous state for muslim and now same thing is happening across the country/India.

21. Prior to the hearing the applicant provided the Tribunal with a number of media reports including the following:

    a.Ayyub, R, (20 July 2018), “Mobs are killing Muslims in India. Why is no one stopping them?” The Guardian;

    b.Ayyub, R, (20 July 2018), “‘Fake news often goes viral’: WhatsApp ads warn India after mob lynchings” The Guardian;

    c.Bhowmick, N, (28 June 2017), “As India’s Muslims are lynched, Modi keeps silent” The Washington Post;

    d.Speetjens, P, (28 July 2016), “Muslims under Modi: The dark side to India's prime minster”, Middle East Eye; and

    e.a link to a YouTube video uploaded by a user named “Truth Seeker”;[1] the description of the video includes the following statements (uncorrected):

    Watch this video and see with your own eyes and hear with your own ears how this BJP leader openly admits and declares that he and his supporters saughtered over a thousand Muslims. He openly admits and declares how he and his BJP supporters killed muslims and dumped their bodies in wells. He tells of a huge muslim crowd who were trapped in a ditch and how he burnt the whole lot of them alive by pouring petrol on them and then adding tyres to the ensuing fire. He says how traders had supplied them with free petrol to burn the Muslims.

    [1] <

22. The applicant also provided a link to another YouTube video, which he claims shows a live television debate in which (uncorrected):[2]

    [A] hindu person asks muslim person to leave india and go to Pakistan because thats where they belong to.

    [2] The link provided by the applicant (<[deleted]>) appears as “unavailable”.

23. Following the hearing, on 29 December 2021, the applicant sent an email to the Tribunal in which he made the following additional claims (materially and uncorrected):

    You did Ask me at interview how do my family know back home i will be trck down as soon as i land there?

    I want to let you know in respond to this is,

    Last year they came down five times at my home looking for me twice as a police officers and twice as a immigration department people (Fake one) and ones real police department. It has been like this for last 5 to 6 years and this was the main reason when my mom passed away my family I did not wanted me to go back. Whenever any kind of political election comes in time gets even tougher.

    They are definitely looing for us even local government is involved and trying with their all power.

    Infect I was getting death threats here in australia as well over my phone and I made a complaint at [a] police station that I am getting death threats they did report my complain but they havent done anything on thta yet. I am sening you a copy of that police complaint.

    I am sending you documents of a corporator and and mosque preist which will tell you, I was muslim activist and helping people in my community even in riots.

24. As attachments to that email the applicant provided the Tribunal with copies of the following documents:

    a.A letter dated 24 February 2021 from the applicant to the Police Commissioner of Ahmedabad City; the letter states (materially and uncorrected):

    I am residing at above mentioned address at Australia with my wife and children and further I am belonging from Ahmedabad and further my family is also residing at Ahmedabad and further for last 10 years I have been residing at above mentioned address with my family and I am frequently visited India and further some unknown person had called me and given threat to kill me as well as to my wife and children for unknown reason and he has given threat that whenever I visit India he will kill me and my wife and children and therefore, I am very much worried about myself and my family and therefore, I am giving this complaint against unknown person for giving threat of my life.

    b.A letter dated 23 December 2021 from [Shaikh A], who is described as “Priest at [Mosque]”; the letter states (materially and uncorrected):

    I know [the applicant] for last 20 years, he is used to come at [Mosque] at Ahmedabad, Gujarat, India to perform Salath / Prayer and he sued to take part in every religious activity with much enthusiasm and further he is having good character and he came from good family background.  He help the poor family members and other peoples in riots.

    c.A letter dated 24 December 2021 from [Mr B], who is described as a “Municipal Councillor”; the letter states (materially and uncorrected):

    I know [the applicant] for the last 20 years and he is from a good reputed family and further he was also a companion in my political rallies and social works and further he was helping hand to poor and having good conscious towards everyone and always ready to help everyone.

25. The Tribunal has also read and had regard to the Department of Foreign Affairs and Trade’s Country Information Report India, published on 10 December 2020 (DFAT Report) and to other country information as referenced below.

    Country of reference / receiving country:

26. The applicants claim to be Indian nationals.  Based on the copies of their passports provided to the Tribunal by the applicants, and in the absence of any other evidence to the contrary, the Tribunal finds that India is their country of nationality and also their receiving country for the purposes of the Act.

    Assessment of Claims and evidence, and findings:

27. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

28. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

29. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. there are good reasons to the contrary, be given the benefit of the doubt’.  (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196).  However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

30. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

    Oral evidence:

    The applicant

31. In giving his oral evidence the applicant appeared to the Tribunal to do so honestly and truthfully. 

32. The applicant stated that he is [Age 1] years of age and was born in Ahmedabad in the state of Gujarat, India.  His father, [brother] and [sister] are still resident there.

33. The applicant’s mother died [in] May 2019; his father, now retired, was a “[Job title]” in the [Employer]. 

34. The applicant and his family (both in India and Australia) are of the Sunni Islamic faith.

35. The applicant completed his secondary schooling in India, and a Diploma of [Subject 1] there.  He applied for a Student visa to come to Australia in 2007 and he completed a series of qualifications culminating in a Diploma of [Subject 2].  He is presently employed as an [Occupation 1] at a well-known and reputable [Workplace] in Perth.

36. The applicant stated that, when he left India, he did not intend to return there permanently and that it was his intention to explore lawful pathways to migrate to Australia.  When pressed as to why he did not wish to return to India, the applicant stated that he feared the Prime Minister of India, Narendra Modi, and the Minister for Home Affairs, Amit Shah.  The applicant stated that Mr Modi had pursued anti-Muslim policies during his time as the Chief Minister of Gujarat and that he (Mr Modi) was, or was perceived as, pursuing those same policies as the Prime Minister of India.  During Mr Modi’s tenure as Chief Minister of Gujarat, Mr Shah served as Minister of State in the Government of Gujarat.

37. When pressed as to his fears, the applicant stated that there was “always prejudice” against Muslims in Gujarat and that there had been sporadic sectarian riots there “throughout his life”.

38. The applicant stated that when he began studying for his Diploma of [Subject 1], he joined a group of Muslim students at his college; the object of the group was, he stated, to:

    Raise our hand and put our opinion.

39. When pressed, the applicant stated that the group was a “very” informal association of Muslim students and would meet with the intention of advocating Muslim students’ interests to college authorities.  Within this context the applicant described himself as a “Muslim activist”. 

40. When further pressed as to his involvement in the group the applicant stated that he was physically assaulted on two occasions by non-Muslim students while he was standing up and giving a speech to the group.  He stated that on these occasions he was punched with a fist to the face and body and that there were altercations between Muslim and non-Muslim students which lasted around 10 minutes.  He stated that, as his father was [an Occupation], he was able to avoid arrest after these altercations.

41. When pressed as to his fear at returning to India now or in the reasonably foreseeable future, the applicant stated that, as he was a “Muslim activist”:

    They will track me down.

42. When pressed as to who “they” are, the applicant stated an organised crime group led by one [Mr C] on the orders of “the government”.  When further pressed as to why he personally would be targeted, the applicant stated:

    Because I was Muslim; I always raised my hand; [they] never liked me; [they were] always looking for me.

1. When asked why he personally would be singled out, the applicant stated to the effect that there are two types of Muslims in Gujarat:

   Either put [your] head down and do what [they] say; or if you put your hand up [you will be targeted].

2. He stated to the effect that he fell into the latter category.

3. The applicant stated that this was the case for every minority in India and that the ruling Bharatiya Janata Party (BJP) under Prime Minister Modi and Minister Shah was pursuing a policy of inflaming Hindu nationalism in an effort to secure electoral success.  He stated that if you “hate Muslims” in the BJP you progressed within the party.

4. When again asked why he personally would be targeted, the applicant stated:

   Because I’ve been an activist; they know me, they’ve been waiting for me.

5. When asked how this fear fitted with his having returned to India on a number of occasions since first arriving onshore in 2007, the applicant stated that his father’s [position] enabled gave him a degree of protection, but that now that he has retired that protection no longer exists.

   The second-named applicant

6. The second-named applicant was present at the hearing.  Despite being invited to provide oral evidence, the second-named applicant declined to do so, indicating that the first-named applicant’s experiences and evidence were the basis for the applicants’ claim for protection. 

   Country information:

7. Official statistics record that India’s Hindus comprise 79.8 per cent of the population, and Muslims comprise 14.2 per cent.[3]   The Muslim minority is dispersed throughout India, with the majority living in Uttar Pradesh, Bihar, West Bengal and Kerala, as well as Jammu and Kashmir.[4]

   [3] Minority Rights Group International, A Narrowing Space: Violence and Discrimination Against India’s Religious Minorities (29 June 2017), at p.5.

   [4] Ibid, p.5.

8. Despite the Constitution of India providing for freedom of conscience and the right freely to profess, practise and propagate religion, religious minorities have experienced heightened discrimination and violence.  Since the 2014 election victory of the BJP under the leadership of Prime Minister Modi, there have been rising Hindu nationalism and communal polarisation.  In a climate of relative impunity, right-wing groups have been emboldened to attack religious minorities.[5]  There have been discriminatory policies and laws, toleration of attacks on and discrimination against minorities, and incitement of hate speech and violence.[6]

   [5] Ibid, pp.2 and 6; and C Jaffrelot “Modi’s Next Five Years” Le Monde Diplomatique (July 2019).

   [6] Human Rights Watch World Report 2020: Events of 2019 (14 January 2020) (HRW’s 2020 report) at p270; and T Gjelten “Religious Freedom In India Takes ‘Drastic Turn Downward,’ U.S. Commission Says” NPR (28 April 2020).

9. In its World Report 2021: India (13 January 2021), Human Rights Watch reported on the treatment of the Muslim minority population of India, stating:

   At least 53 people were killed in communal violence that broke out in Delhi in February. Over 200 were injured, properties destroyed, and communities displaced in targeted attacks by Hindu mobs. While a policeman and some Hindus were also killed, the majority of victims were Muslim. The attacks came after weeks of peaceful protests against the Indian government’s discriminatory citizenship policies.

   Violence broke out soon after a local BJP politician, Kapil Mishra, demanded that the police clear the roads of protesters. Tensions had been building for weeks, with BJP leaders openly advocating violence against the protesters, whom some called ‘traitors’ to be shot. Witness accounts and video evidence showed police complicity in the violence. A July report by the Delhi Minorities Commission said the violence in Delhi was ‘planned and targeted,’ and found that the police were filing cases against Muslim victims for the violence, but not taking action against the BJP leaders who incited it.

10. L Maizland, in an article entitled “India’s Muslims: An Increasingly Marginalized Population”[7] reported:

    ·For decades, Muslim communities have faced discrimination in employment and education and encountered barriers to achieving wealth and political power. They are disproportionately the victims of communal violence.

    ·Prime Minister Narendra Modi and the ruling party have moved to limit Muslims’ rights, particularly through the Citizenship Amendment Act, which allows fast-tracked citizenship for non-Muslim migrants from nearby countries.

    [7] Council on Foreign Relations (20 August 2020).

11. The Department of Foreign Affairs and Trade (DFAT) reports that the Citizenship (Amendment) Act, 2019 (CAA) came into force on 10 January 2020. The CAA makes religion a criterion for citizenship for the first time. It provides a shorter residence period of five years for a citizenship application (instead of the normal 12 years) for persons who belong to the Hindu, Buddhist, Christian, Sikh, Jain or Parsi communities from Pakistan, Bangladesh and Afghanistan, and who had entered India illegally before 31 December 2014. Muslim communities are not included.[8]

    [8] Department of Foreign Affairs and Trade Report, DFAT Country Information Report: India (DFAT Report) (10 December 2020) at [2.76]–[2.78].

12. The National Register of Citizens (NRC) is a register of all Indian citizens mandated by the 2003 amendment of the Indian Citizenship Act, 1955.  Its purpose is to document all the legal citizens of India so that the illegal immigrants can be identified and deported. It has been implemented for the state of Assam, starting in 2013–2014, and the Government of India plans to implement it for the rest of the country in 2021. There are concerns that the upcoming compilation of the NRC might be used to deprive Muslims of Indian citizenship.[9]

    [9] Ibid, at [2.74]–[2.77]; “Assam Final NRC List Released: 19,06,657 People Excluded, 3.11 crore make It to Citizenship List” India Today (31 August 2019); S Guzman and K Salam “India Is Betraying Its Founding Fathers” Foreign Policy (17 December 2019); and “As Anti-CAA Pressure Builds, BJP Govt Goes Discernibly on the Backfoot” The Wire (21 December 2019).

13. However, DFAT also reports that Muslims in India face a low risk of official discrimination and that incidents of violence have not affected the day-to-day lives of most Muslims:[10]

    DFAT assesses many Muslims live day-to-day with low levels of societal discrimination and violence. Communal violence has occurred in India for many decades. The Muslim community has often been disproportionately affected and the February 2020 Delhi riots marked the latest episode. Hindu nationalist politics has heightened communal tensions in parts of India in recent years. In this climate, there are higher levels of fear in the Muslim community. The risk of societal discrimination and violence is higher for Muslims who are involved in cow slaughter; however, these incidents, while widely reported, have not affected the day-to-day lives of most Muslims.

    [10] DFAT Report at [3.53].

14. Consistent with this assessment, the United Kingdom Home Office (UKHO) states:[11]

    Religious minorities and members of Scheduled Castes may experience some local state discrimination, including police hostility and harassment. However, it is unlikely that this would, in general, be sufficiently serious by nature and repetition that would cause them to face a real risk of persecution or serious harm.

    [11] UKHO, Country Policy and Information Note India: Religious Minorities, Version 2.0, May 2018 at 2.3.5.

15. The UKHO also notes that:[12]

    Religious minorities live throughout India and information on the scale of the problem is vague, but Hindu nationalists are a small sub-set of the population and many issues in themselves would not give rise to a well founded fear of persecution. Whilst outbreaks of communal violence do occur, in general, religious minorities, those in interfaith marriages, and members of Scheduled Castes, although sometimes subject to discrimination and localised harassment, are in general not subject to treatment which is sufficiently serious by nature and repetition to be persecutory or cause serious harm.

    [12] Ibid, 2.3.13.

    Analysis:

16. The applicant’s oral evidence is that he and his family are of the Muslim faith.  This claim has been made consistently through the applicant’s protection visa application[13] and is corroborated by the letter he provided from [Shaikh A], a Priest at [Mosque] at Ahmedabad, Gujarat, who states that he has known the applicant as an observant Muslim for some 20 years.  The Tribunal accepts the weight of this evidence and finds that the applicant and his family are of the Muslim faith.

    [13] See answer 33 on the applicant’s protection visa application forms.

17. However, in respect of his claims to holding a well-founded fear of persecution on this basis, the Tribunal considers the applicant’s evidence to be vague and unpersuasive.  

18. Although the applicant’s written claims for protection included his experience during “communal riots” in 2002,[14] when he was around [Age 2] years of age, the only oral evidence he provided of personally experiencing religiously motivated harassment and violence were the incidents he described while a member of a Muslim student group while studying at college.  The Tribunal considers that, as described by the applicant, these incidents are broadly consistent with DFAT’s and the UKHO’s assessment of the nature of anti-Muslim sentiment in India, being relatively low-level in nature and it is prepared to accept the applicant’s evidence in this regard. 

    [14] The Tribunal notes that The Times of India reports that: “The 2002 Gujarat riots was a three-day of inter-communal violence in the Indian state of Gujarat. Following the initial mishap there were several outbreaks of violence in Ahmadabad for three months. These outbreaks of communal riots were mainly against the minority Muslims”; see < >

    However, when pressed as to his specific fears of being personally targeted on account of his religion, the Tribunal found the applicant’s evidence to be vague and lacking in detail.  For example, although the applicant claimed repeatedly in evidence to be a “Muslim activist”, he provided no persuasive corroboration of this claim.  The letters submitted by the applicant purportedly to corroborate the claim[15] do not do so.  Rather they state merely that the applicant was religiously observant and of good character, that he helped the poor, and that he was a “companion” on a councillor’s political rallies and social works.  These activities are relatively low-level in nature and do not, to the Tribunal’s mind, mark the applicant apart from the broader Muslim community in India as being a “Muslim activist”.

    [15] As described at para [23] above.

19. When further pressed by the Tribunal as to his specific fears of being personally targeted if he is returned to India, the applicant provided no further or other basis for his fears that did not amount to vague, subjective feelings of apprehension on account of his perceptions of the policies of the central government of India under Prime Minister Modi.  Although the applicant claimed that “they” will track him down because he is a Muslim, he provided no persuasive evidence to support this claim.  His contention that he would be specifically targeted for having been a member of a Muslim student group while at college, and having twice spoken at group meetings, did not persuade the Tribunal that the applicant had a sufficiently high profile to be so targeted.

20. In his email to the Tribunal of 29 December 2021, the applicant claimed that “they” have come to his home (in India), looking for him.  He states that he has also received death threats over the phone while resident in Australia.  These claims are, however, uncorroborated.  The Tribunal has read and had regard to the letter sent by the applicant to the Police Commissioner of Ahmedabad City.  The Tribunal is prepared to accept the letter as evidence that the applicant has made a complaint to the police in Ahmedabad City of oral threats to his life and the lives of his family.  The Tribunal notes from the terms of the complaint itself, however, that the threats were by an expressly “unknown person” for an expressly “unknown reason”.  Given the vague nature of these threats and the identity of the alleged perpetrator the Tribunal places minimal weight on the letter as evidencing a well-founded fear of persecution for the reasons claimed or for any reason, or of the applicant being at risk of suffering significant harm if he returns to India. 

21. Overall, the Tribunal is not persuaded on the evidence before it that the applicant is or was a “Muslim activist” or that he has engaged in activities or attained a profile sufficient to mark him apart from the broader Muslim community in India.

22. As to his more “general” fears, the applicant tended to speak from a generalised perception of negative social attitudes, discrimination, and violence in his home country on account of his religion: for example, “they” do not want Muslims to “raise our hand and put our opinion”.  Despite being pressed for detail, the applicant was ultimately unable to describe these fears other than in vague generalisations based upon his perception of societal attitudes in India to religious minorities in general, and Muslims in particular, and his fear of the central government of Prime Minister Modi.

23. In this regard, the Tribunal has read and had regard to the DFAT Report and notes in particular DFAT’s assessment that:

    a.many Muslims in India live day-to-day with low levels of societal discrimination and violence;

    b.communal violence has occurred in India for many decades, often disproportionately affecting the Muslim community;

    c.Hindu nationalist politics has heightened communal tensions in parts of India in recent years; and

    d.in this climate, there are higher levels of fear in the Muslim community.

24. The Tribunal therefore accepts that, as a member of the Muslim community, the applicant subjectively fears returning to India.  However, the Tribunal is required to be satisfied that the applicant has a well-founded fear of persecution.  

25. The Tribunal infers from the country information set out above that while there have been attacks against the Muslim community in India, when considered in the context of the size of the Muslim population in India, these attacks do not occur on a scale on which the Tribunal could find that there is a real chance that the applicant will suffer serious harm on this ground.  The Tribunal also infers that while Muslims may encounter both official and societal discrimination, this is low level and not to a degree that equates with a real chance of the applicant suffering serious harm on that basis.  Overall, the Tribunal infers that the risk of the applicant suffering serious harm in India on the ground of his religion is remote.

26. For these reasons, the Tribunal finds that 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 s5J(1) of the Act; and there are not substantial grounds for believing that as necessary and foreseeable consequence of removal to India there is a real risk of his suffering significant ham within the meaning of s36(2A) of the Act. 

    The second-named applicant and the third-named applicant

27. The second-named applicant expressly declined to give evidence at the hearing, indicating that she was content to rely upon the first-named applicant’s oral evidence.  The third-named applicant is some [Age 3] years old, was born in Australia and has never travelled outside Australia.

28. In their protection visa application forms the second-named and third-named applicants raised similar claims to the first-named applicant, stating in essence that they feared returning to India on account of their Muslim faith and the polices of the central government of India under Prime Minister Modi.

29. For the reasons set out above, the Tribunal finds that the risk of the second-named applicant or third-named applicant suffering serious harm in India on the ground of their religion is remote not amounting to a well-founded fear of persecution or a real risk of significant harm.

    Cumulative claims

30. Having considered all of the applicants’ claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicants as contained in their application and as discussed in the hearing, the Tribunal finds that there is no real chance that the applicants will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if they return to India now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicants do not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if they return to India.  Accordingly, the Tribunal finds that they do not satisfy the criterion in s.36(2)(a) of the Act. 

    Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm

31. The Tribunal has considered the applicants’ claims under complementary protection. 

32. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicants will suffer significant harm for any of the reasons claimed if they return to India now or in the reasonably foreseeable future.

33. The Tribunal is satisfied there is no real risk that the applicants will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflected on the applicants, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment.  It is also not satisfied that there is a real risk they will suffer arbitrary deprivation of their life or the death penalty. The Tribunal finds no grounds that suggest the applicants will be subject to significant harm for any reason if they return to India.  Therefore, the Tribunal finds that the applicants do not satisfy the criterion in s.36(2)(aa) of the Act.

    Conclusion: Refugee Criterion

34. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicants will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group).  Their fear of persecution is not well-founded as required by the Act and therefore they are not refugees.

    Conclusion: Complementary Protection

35. Considering the applicants’ individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to India that there is a real risk that they will suffer significant harm.

    Overall conclusion:

36. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations.  Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa.  It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.

37. Having concluded that the applicants do 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 applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).

    decision

1. The Tribunal affirms the decision not to grant the applicants protection visas.

   Damian Creedon
   Member

   
   

   Attachment  -  Extract from Migration Act 1958

   5 (1) Interpretation

   …

   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)     that is not inconsistent with Article 7 of the Covenant; or

   (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)     that is not inconsistent with Article 7 of the Covenant; or

   (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)     for the purpose of intimidating or coercing the person or a third person; or

   (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   receiving country,  in relation to a non-citizen, means:

   (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   5H    Meaning of refugee

   (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

   …

   5J     Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:     For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:     For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   5K    Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)     disregard any fear of persecution, or any persecution, that:

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L    Membership of a particular social group other than family

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)     a characteristic is shared by each member of the group; and

   (b)     the person shares, or is perceived as sharing, the characteristic; and

   (c)     any of the following apply:

   (i)the characteristic is an innate or immutable characteristic;

   (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)the characteristic distinguishes the group from society; and

   (d)     the characteristic is not a fear of persecution.

   5LA Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

   …

   36     Protection visas – criteria provided for by this Act

   …

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

   (2A)A non‑citizen will suffer significant harm if:

   (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)     the death penalty will be carried out on the non‑citizen; or

   (c)     the non‑citizen will be subjected to torture; or

   (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)     the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   …