1819418 (Refugee)

1819418 (Refugee) [2021] AATA 4481 (8 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1819418
COUNTRY OF REFERENCE:                   India
MEMBER:Sean Baker
DATE:8 October 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the first and second applicants Protection visas.
The Tribunal does not have jurisdiction for the third applicant

Statement made on 8 October 2021 at 4:30pm
CATCHWORDS
REFUGEE – Protection visa – India – supporters of the Indian National Congress Party – targeted for harm by local rival families and local authorities –willingness to allow infant daughter to remain in India– voluntary return to India – failure to mention attack in statutory declaration – symptoms of PTSD and associated depression and anxiety– delay in lodging the visa application – inconsistent evidence – acquiring of Australian citizenship of the applicants’ daughter – strong compassionate circumstances –children’s best interests – referred for ministerial intervention – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 36, 65, 351, 417, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of India, applied for the visas on 10 December 2013 and the delegate refused to grant the visas on 31 October 2014.
The Tribunal, differently constituted, affirmed the decision of the delegate on the basis of credibility concerns. The applicants sought judicial review of that decision and the Federal Circuit Court dismissed that application. On appeal to the Full Federal Court a majority of the Court found that the Tribunal had overlooked, failed to consider, or disregarded the two corroborative witness statements. If accepted, the Court held, the witness statements were capable of supporting the factual allegations made by the appellant in support of his claim. It is possible that the Tribunal could have assessed the appellant’s credibility differently had it been conscious of the content of the statements at the time that it engaged in its reasoning process.
The applicants appeared before the Tribunal on 30 April and 13 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr [A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicants were represented in relation to the review by their registered migration agent.
Having regard to their evidence and the copies of their Republic of India passports on the Department file, I accept that the first and second applicants are Nationals of India.
Having regard to the information provided to me, I accept that [the] third applicant’s application was withdrawn on 23 April 2021. This was on the basis that [the third applicant] acquired Australian citizenship on her 10^th birthday [date deleted]. I find that I have no jurisdiction in relation to the third applicant, [on] the basis that her application has been withdrawn.
The second child of applicants one and two, [name deleted] was born after the primary decision in this case. He therefore is not party to this application.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
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 a protection 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 the applicant 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’).
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.
The issue in this case is whether any of the applicants face a real chance of persecution or, if not, there is a real risk they will suffer significant harm if returned from Australia to India.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background and Migration History of the applicants
The first applicant (also herein ‘the applicant’) is male born [date] in [Village 1], District Ludhiana, Punjab India. He is a [age]-year-old citizen of India.
The second applicant is female born [date] in [a Village], District Ludhiana, Punjab, India. She is a [age]-year-old citizen of India.
The first and second applicants were married in Punjab India [in] January 2009.
The second applicant was granted a [Student] visa to travel to Australia [in] July 2009, the first applicant was granted a visa of the same class as a member of the same family unit. The first and second applicant initially arrived in Australia [in] July 2009.
The third applicant, a female born [date] in Australia is the first child of the first and second applicants. The child is now [age] years old and acquired Australian Citizenship on her 10^th birthday.
A second child of the first and second applicants, a male born [date] in Australia is not a party to this application.
The second and third applicant departed Australia for India [in] December 2010. The second applicant returned [in] January 2011 while the third applicant remained in India.
The first applicant departed Australia for India [in] February 2011 and returned with the third applicant [in] March 2011.
The second applicant lodged an application for a subsequent [student visa] on 17 August 2011.
The applicant’s initial [visas] expired on 18 September 2011. The remained in Australia lawfully as holders of Bridging Visas A at the time.
The second applicants subsequent [visa] was refused by a delegate of the Minister on 28 October 2011. An application for review was lodged with the then Migration Review Tribunal who affirmed the decision on 8 July 2013. The applicants sought the intervention of the Minister pursuant to s.351 of the Act. The then Assistant Minister for Immigration and Border Protection declined to consider the matter on 9 November 2013.
The applicants lodged the present application for a Protection Visa on 10 December 2013. The procedural history of this application is set out above.
Outline of the applicants claims
The applicant’s claims are primarily, but not exclusively, based upon the claims of the first applicant [to] fear harm on return to India. His claims in the protection visa application, and statutory declaration dated 24 January 2014 can be summarised as follows.
·     The applicant was born, raised, and lived until 2003 in [Village 1], [Town 1] District in Punjab.
·     On [date] May 2003 the police found the body of [Mr D], son of [Mr E]. [Mr E] was an old rival of the applicant and his family based in local politics; the first applicant and his family are Congress workers and supporters. [Mr E] and his family Shiromani Akali Dal activist and support
·     [Mr E] framed the applicant for the death of his son. The applicant was not named in the police report (known as a First Information Report or FIR) but was picked up and detained by the police from his house on [date] May 2003 along with his two friends [Mr F] and [Mr G] at the behest of [Mr E] or the applications family’s political rivals, he suggests the police may have been paid to facilitate this.
·     The applicant, [Mr F] and [Mr G] were detained for three months in various locations, tortured, beaten, and denied food. On several occasions they were hospitalised after being rendered unconscious.
·     The applicant was released after his father was able to pay the local police 2 lakh.
·     The matter got silent for about 5 years and they were occasionally called to the police station in [Town 1].
·     On [date] April 2009, the police raided his home and arrested him. He was taken to the [Town 1] police station and beaten over several days in the presence of [Mr E] and his ally [Mr H] and the applicant was hospitalised later.
·     Before this he was falsely framed in another criminal case and beaten and humiliated but was compromised on request of elders of the village. Later in his application he claims he was falsely framed in another criminal matter at the behest of [Mr H] and was tortured by the police in 2008.
·     During 2009 his friend [Mr G] was detained, tortured, and killed in custody. In his application he stated that this occurred in June 2009 but amended this to March 2009 in a notification of incorrect answer form to the Department in January 2014.
·     He was afraid and planned with his family to flee abroad to save his life as his opponents threatened to shoot him.
·     They returned to visit their parents for short periods in 2010 and 2011.
·     On his travel in 2011, on either [date] or [date] March the police raided his house. He was not there, and he escaped back to Australia shortly after.
·     Around [January] 2013 the police picked up his friend [Mr F] who was beaten and died. No action was taken following his death.
·     The applicant was due to travel to India at this time but postponed his plans due to his fears that he would be in danger.
·      The week prior to lodging his protection application (10 December 2013), the applicant’s father was picked up and beaten to pressure the applicant to return. Following his release, the applicant’s father called the applicant and warned him not to return to India.
·     His father and his brother have been harassed since that time in an effort to locate the applicant. The applicant’s brother returned to India from abroad in approximately 2015 or 2016 and they thought his brother was the applicant and attacked the family home.
·     The applicant claims that his family have had arguments in the past with [Mr I], who is associated with the Akali Dal party.
·     He fears he will be killed or framed by Punjab police or his opponents/enemies in [Village 1]. They have links with other gangsters in other parts of India.
The applicants have also been interviewed by the Department and attended one hearing before the previous Tribunal.
Credibility
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
The difficulties are that the first applicant has not been consistent in his claims, aspects of the claims are inconsistent with some of the evidence the applicants have provided, and the claims overall are implausible in the light of the subsequent behaviour of the applicants. This leads me to have doubts about the credibility of the first applicants’ claims and whether those claims are true.
The applicants presented their claims to the present Tribunal over the course of two hearings. They were provided with a number of opportunities to discuss concerns with their claims. Despite, this, for the reasons below, my concerns remain. I have set out below the most significant of the difficulties I have with the claims made by the applicants, which lead me to find those claims not to be credible.
Evidence before the Tribunal
The present Tribunal has considered evidence available in Department File [which] includes
·Form 866 application for a Protection visa (inclusive of Forms 866B, C & d) for all applicants
·Copies of all applicants’ Indian passports
·A copy of the first and secondary applicant’s marriage certificate
·Copies of Indian education records for the first and second applicants.
·A copy of the secondary applicants’ Australian qualifications.
·Form 1023 notification of incorrect answers dated 23 January 2014 signed by the first and secondary applicants.
·A statutory declaration made by the first applicant stating his claims for protection dated 23 January 2014
·Statement by Ex-member Panchayat [Mr J] of [Village 1], date 16 January 2014
·Statement by the applicant’s father [Mr K] dated 16 January 2014
·Translated statement of [Mr E] to [Town 1] Police dated 2 May 2003 in relation to the disappearance of his son [Mr D] [in] May 2003.
·Translated schedule of transfer from Regional Magistrate [Town 1] issuing summons dated [date] June 2003, particulars handwritten and some illegible
·Translated First Information Report of [Town 1] Police dated [February] 2007, complaint of [Mr H] against first applicant & others.
·Translated Media Reports relating to the disappearance of [Mr D] dated 3 May
·Translated death certificate issued in [Town 1] for [Mr G] deceased [date]April 2009 dated 27 April 2009
·A death certificate issued by the Government of Punjab on 21 January 2013 with relevant particulars in Punjabi with no translation available
·Pamphlets translated from Punjabi in relation to Police [Hooliganism]
·Medico Legal Reports relating to the first applicant dated 2007 with particulars handwritten and unclear
The present Tribunal has considered evidence available in previous Tribunal File 148598 which among information already present on the Department file include
·Death Certificate issued in Ludhiana for [Mr F] deceased [date] January 2013
·Handwritten Medical reports dated approximately [July] 2007, many particulars in Punjabi
The present Tribunal has been presented with further copies of documents that had been submitted to the Department and previous Tribunal. In addition to these further documents have been presented to the Tribunal and include
·Documents confirming the grant of citizenship to the third applicant
·Legal submissions made by the representative dated 23 April 2021 with supporting documents
·Country information including media reports
·Letters of support including from Mr [A]
·Mental health report relevant to the first applicant dated 23 January 2018 from Doctor [L]
·Post hearing submissions made by the representative dated 3 June 2021
·Report from [the Consultant Psychologist] dated 24 May 2021
·Transcript of hearing before the previous Tribunal
·Legal opinion of [a named person] in relation to the ability of an accused to gain access to a FIR of which they are the subject (accused).
Mental health
The first applicant claims to have PTSD, depression and memory loss associated with these conditions.
I have before me reports from Dr [L] dated 23 January 2018 and [the psychologist] dated 24 May 2021.
At the hearing the applicant confirmed that he had visited Dr [L] once at [a] hospital. I noted the medications Dr [L] had advised but the applicant said at the hearing the only medications he was taking was Panadol. I have carefully considered the report from Dr [L]. This confirms the claims of the applicant to be suffering symptoms of PTSD and that the applicant had reported issues of forgetfulness. However, the report does not support his claims to be suffering memory loss as a specific symptom of the diagnosis of PTSD. As raised with the applicant at hearing, I had some doubts that this report supported his claims to suffer memory loss in relation to his claims and the identified deficiencies with those claims.
The report from [the psychologist] does not give a diagnosis, per se, but rather concurs with the opinion of Dr [L]. The report details the claims of the applicants in the form of self-reporting of the applicants. In this context [the psychologist] states that he concurs with the opinion of Dr [L] that the first applicant is suffering symptoms of PTSD and states that the applicants claimed memory issues are commonly seen amongst those with PTSD. [The psychologist] states that the applicant’s memory loss:
‘may be a function of the intrusive nature of his symptoms impacting upon his cognition. In individuals who have been exposed to life threatening and highly traumatic events, they can either repress the memories of the incident or in the alternative, experience a constant replaying of the incident. Certainly, in the both scenarios, the accuracy of the recollection can be impacted.’
The report goes on to state that the family would suffer harm on return to India. I have considered [the psychologist]’s report to the extent that it provides a professional psychological opinion. I do not accept the reporting of the applicant’s claims as in any way strengthening their claims, given these are self-reports of the applicants, and for the same reason I do not accept the conclusion of [the psychologist] that the applicants will be harmed on return to India, this being outside the area of his professional competence.
I note that neither report definitively identifies that the applicant is suffering memory loss and relies on his self-reporting of his memory loss. I note that the medical reports are both dated after the first Tribunal hearing, where considerable inconsistencies with the applicant’s claims were identified to him. I have some doubts with whether the applicant is suffering memory loss, certainly to the extent he has claimed.

But I do accept the diagnosis, within their professional experience, of Dr [L] and the concurrence of [the psychologist] that the applicant is suffering symptoms consistent with PTSD and associated depression and anxiety, and I accept the professional opinion of [the psychologist] that accuracy of recollections can be impacted. Due to this, I have carefully assessed the credibility concerns I have with the applicants claims and I have placed weight on those concerns which do not rely solely on inconsistencies in the applicant’s recollection of events which I am prepared to accept my be impacted by his symptoms of PTSD.
I note also that the report from [the psychologist] details that [the] second applicant has also reported anxiety and depression. I accept that the second applicant is suffering anxiety and depression.
I do not accept that the fact that both applicants are suffering psychological symptoms confirms their claims to be true. I note that psychological symptoms may have a range of cause and for the reasons below I do not accept that the central claims made by the applicants are true. In particular whilst accepting the first applicant has symptoms of PTSD, I do not accept that this confirms that the trauma which has caused this stress is the trauma he has claimed resulted from the events in India, which I have rejected for the reasons below.
Due to what I have accepted of the first applicant’s mental health symptoms, I have discounted my concerns, even very serious concerns, which deal solely with inconsistencies in his evidence. What I have focused on are the most significant concerns which consist of concerns either with contemporaneous documents such as the statements of the first applicant’s father and [Mr J], or inconsistencies from multiple persons, such as the claim which the applicants and their witness Mr [A] all repeated of the detention of the applicant 2-3 days after his wedding. I have focused on these concerns because they do not rely on the first applicant’s recollections of events solely.
Having regard to their ability to detail their claims and to respond appropriately to questions and concerns raised at the hearings, and to the opportunity afforded them in two hearings as well as their competent representation, I am satisfied that in the context of their mental health symptoms as accepted that the applicants were given a real and meaningful opportunity to appear before the Tribunal to give evidence and present arguments.
Concerns with claims
The documents provided
I have carefully considered the documents provided by the applicants.
I have carefully considered the statement of the applicant’s father, [Mr K], and the statement of [Mr J] dated 16 January 2014. These documents, prima facie, support the main claims of the first named applicant. However, on closer examination, as set out in detail below, these statements do not identify key events which the applicant claims happened to him, including an assault in 2007 so serious that the applicant was hospitalised, and a detention and beating 2-3 days after his wedding. These significant events are not mentioned in either statement. When asked why that was, the applicant said that he had asked his father and [Mr J] to relate the events of 2003, so maybe they forgot these events. I do not accept this explanation because both statements identify other events that occurred after 2003, such as the detentions and deaths of the applicant’s friends.
Given these serious deficiencies with these statements I give them no weight in supporting the applicant’s claims.
I have carefully considered the First information Report – dated [Feb] 2007 and the medico legal report from approximately the same time in 2007 which are said to support the assault on the applicant that occurred in 2007. As below, despite these documents being provided to the Department, I am unable to reconcile this with the applicant not mentioning the 2007 attack until the previous Tribunal., and as noted below, the 2007 attack is not mentioned in the statements of his father and [Mr J]. The applicant claimed that he did not mention this earlier because he did not have the help of his lawyer when preparing his application. As below I do not accept this explanation. Given my concerns in the disparity between these documents and the applicant’s claims to the Department I give these documents no weight. My weighting of these documents is also affected by my reading of the country information, raised with the applicants at hearing, that document fraud is prevalent in India, including police records and medical records.[1] They responded that these records could be checked and that they did not know how these records were obtained by their families. Given my concerns with the credibility of the 2007 claim and its absence from their earlier claims, as well as the concerns expressed in the country information that verification may not be helpful and I would be unable to check that those I was seeking verification from were who they claimed to be, I did not seek to have the records checked.
[1] Immigration and Refugee Board of Canada, India: Availability and prevalence of fraudulent identity documents, including membership cards of political parties (2011-April 2014)
I am prepared to accept on the documents provided in relation to this event that a person named [Mr D], son of [Mr E] may have disappeared, and his body was later found around May 2003. As the applicant has conceded, he is not mentioned in the FIR that [Mr E] filed in relation to the disappearance.
The applicant has provided death certificates of [Mr F] and [Mr G] (alias ‘[alias of Mr G]’), who he claims are his two friends. I accept that these are the death certificates of these two individuals. But the certificates do not establish the cause of death. Nor do they establish that these people were known to the applicant and his friends as he has claimed. I give these documents no weight in establishing the applicant’s claims.
The applicants also provided a range of news articles, most of these are dated 2003 and relate to the disappearance and death of [Mr D], son of [Mr E]. They do not mention the applicants. I give these documents no weight in establishing the applicant’s claims.
There is a leaflet in Punjabi relating to Police [Hooliganism]. I accept the general proposition supported by country information, including that provided in the submission from the applicant’s representative, that the police in India have been credibly accused of numerous and various human rights violations. However, again this document does not identify the applicants, nor does it support their specific claims. I give this document no weight.
To the previous Tribunal a summary of claims and copies of the documents above were provided on 6 August 2015.
To this Tribunal, a detailed submission was provided prior to the hearing setting out the claims of the applicants in detail along with supporting information.
This includes country information on the political situation in the applicant’s village and more generally, credible reports of corrupt behaviour by police in India as well as credible allegations of human rights abuses carried out by police.
The pre-hearing submissions, being on instruction from the applicants, do not mention the claimed detention arrest and beating of the applicant 2-3 days after his wedding on [date] January 2009. Instead the submission details the claims relating [to] April 2009.
The pre-hearing submission acknowledges the prevalence of document fraud in India but cautions that unless there is evidence the documents provided are non-genuine they should be considered genuine.
The pre-hearing submission attempted to address the deficiencies in the applicant’s evidence to the previous Tribunal.
The submission also includes a large amount of information for the purpose of a referral for Ministerial Intervention, which I have considered and detailed below.
Delay in seeking protection
The applicants arrived in Australia in July 2009. The first applicant, as noted above, claimed that he fled to Australia to save his life.
They did not apply for protection for many years after arriving in Australia. I am aware that there are a multitude of plausible and credible reasons why applicants may not seek protection as soon as they arrive in Australia. However, it is well established that a decision maker may consider the question of delay between an applicant arriving in Australia and seeking protection.
This issue was raised by the delegate, according to the Department decision, when the question of delay was raised, the first applicant responded that he and his wife planned for her to finish her studies and then settle here and open their own restaurant.
Before me the first applicant said much the same thing. He said that they had thought they would get permanent residency based on his wife’s student visa. When I pointed out that student visas are temporary visas, and provided on the basis that an applicant generally must declare they are willing to return to their country, the first applicant said that many, but not all, of their friends had gained permanent residency on the basis of their student visas.
I noted that according to the Department decision record, the second applicant’s subsequent student visa was refused on 28 October 2011, she sought review of that refusal before the Migration Review Tribunal, which affirmed the refusal on 11 June 2013. The applicants then made a section 351 Ministerial Intervention request. This was declined on 1 November 2013, a little more than a month before they then lodged their protection visa application.
I noted that this concerned me that they had not explored and sought protection, a more permanent option, sooner, given the first applicant claimed to have been detained, arrested, and harmed multiple times and to have fled India. The applicant said they had been told it might be hard to get protection and if they were refused they would have no other option. I noted that the second applicant had been refused a visa and had pursued review of this rather than them seeking a protection visa. The applicant’s responded that they thought they would gain the student visa.
I understand the claims of the applicants, but I do not accept that they explain their delay in applying for protection if their claims are true. The applicant claims to have been falsely detained and seriously harmed by the local police as well as other people in his local area in India. He claims that he fled to Australia in fear in 2009. In this context, the claims that they thought they had a pathway to permanence are not, I find, plausible. The student visa which they held was a temporary visa. And while many of their friends may have gained permanent residence this way, it was, as they admitted, not all of them. They would have been aware therefore, that this was not certain. In the context of the claimed harm and fear the applicant had, the considerable delay is concerning. What is then of further concern is that the second applicant’s application for a further student visa was refused. Rather than seeking protection at this point, the applicant’s pursued the temporary student visa through the tribunal and to ministerial intervention before applying for protection. I consider that this behaviour is not explained by the applicants if their claims are true, but rather, if the applicants were genuinely in fear of return, and believed that the first applicant at least would be harmed if they returned, they would have sought protection at some point earlier than the more than four years later when they did apply. I find that their reasons for this delay are implausible.
The very significant delay in the applicants seeking protection causes me to doubt their claims to fear harm on return. I do not accept that persons genuinely in fear of being harmed on return in the manner claimed by the applicants, and given the applicant claimed to have fled India after being detained and beaten by police, would not seek a more permanent option to remain in Australia earlier than the applicants did.
Applicants’ return to India 2010-2011
Prior to seeking protection, the applicants returned to India. The second applicant [returned] to India with the couple’s daughter in December 2010 – January 2011. The daughter remained in India in the care of relatives. Then in February - March 2011 the first applicant travelled to India to perform ceremonies for his recently deceased grandmother and returned to Australia with their daughter.
There were several points about this history which puzzled me. Firstly, why the applicants had chosen to allow their daughter to remain in India where the first applicant claimed his family (his father and brother) had been targeted for harassment by the local authorities because of him.
When I raised this at the hearing the second applicant said that no one was aware that their daughter was there, they had not had a plan to leave their daughter there but the first applicant’s grandmother was ailing and when they visited, the first applicant’s family asked to have some time with the daughter, so they decided to leave their daughter there. The first applicant said that when his wife had travelled there, his grandmother was not doing well and wanted to see their daughter. Then he went to perform the rites for his grandmother and pick up their daughter. When I asked him why he thought it was safe for their daughter to remain there given he claimed he and his family had been targeted, he said that his daughter was living in his wife’s village and they didn’t go there and did not know she was there. I pointed out that the point of the daughter remaining in India was, they had claimed, so that the first applicant’s grandmother could see the daughter, so this would suggest the daughter had gone to the first applicant’s village to see the grandmother. The applicants did not comment further.
I found the applicants’ responses to this concern to be unhelpful in clarifying why they would have allowed their daughter to remain in India if the claims of the feared harm to the first applicant and his family were true. I find that their willingness to allow their infant daughter to remain in India without them is strongly indictive that these claims are not true and they did not have any concerns about the safety of their daughter or the potential for her being targeted by local people or local authorities.
Secondly, given the first applicant claimed to have fled India in 2009 after being detained and beaten by local police, it seemed concerning that he was willing to return in 2011. He claimed that this was to perform ceremonies for his grandmother and to bring his daughter back. He said nothing had happened to him and he did not stay in his village and did not see them and went for two weeks only. I asked if he had stayed in his village at all and he said only for the last ritual ceremony for his grandmother, he was there only for that day. He said he did not think anything had happened with the police or authorities in 2011 when he returned.
I appreciate that there would have been strong personal and cultural reasons for the applicant to return to do the ceremonies for his grandmother. The applicant did not provide further information or justification than this. However, the applicant has claimed to have been targeted by local families who have political connections and to have been detained and beaten by local police on more than one occasion. He has claimed that his family including his father and brother have been targeted as a result of the issue with him. Given this, I have very considerable concerns with the applicant having chosen to return. I note the applicant also provided as part of his explanation that he had to get his daughter. But the second applicant could have returned, and as above I have concerns with the leaving of the daughter there in any event
The actions of the applicants, in returning to India and leaving their daughter in the care of relatives there, and in the first applicant returning, even if, as he claimed, he was only in his village for a short period of time, lead me to doubt the claims of the applicants to fear harm on return and to doubt that the claims of the applicants are true.
The 2007 attack
At the hearing before the previous Tribunal, the applicant claimed that he had been in hiding from the time of the May 2003 incident until 2007, when he said he had returned to his village because he thought things had settled down. However, 20 days to a month after he returned to his village, on his way to the family farm he was attacked by men the opposition had sent to attack him. They beat him with bats and rods. He was then taken to hospital. The applicant claimed to have been injured on his head and hand and was hospitalised for approximately 10 days. Despite making a complaint to the police they refused to investigate. After this his family told him to return to hiding and he remained in hiding until his wedding and then his departure for Australia.
I have considerable concerns with this claim. The first concern is that the applicant did not include this 2007 attack in his application or the statutory declaration accompanying it, only making this claim before the previous Tribunal. The applicant claimed this was because he did his application without the help of a lawyer, and he did not have enough knowledge. But as is clear from his application, he provided a reasonable level of detail in relation to other claimed events in this application and the statutory declaration. Further, he has claimed that the 2007 attack was so serious that it required him being hospitalised, and he has not credibly explained why such a serious event would have been omitted from an otherwise detailed application and statutory declaration.
A further concern is the lack of any mention of the 2007 attack in the support letters from his father or [Mr J], despite these support letters detailing claimed events in 2003 and 2009. When I noted that I was concerned that it was not mentioned by either of them he said that he had asked them to send him information about what had happened to him, and he thought they may have forgotten about the 2007 incident. This appears implausible given the apparent seriousness of the claimed attack, which required hospitalisation of the applicant, and the fact that the support letters detail events which occurred prior to and after this claimed 2007 attack.
I have had regard to the documents provided by the applicant - the FIR that is said to be about this incident and the medico legal report and diagrams. I note that these documents were provided at the Department stage, which might tend to support the claims of the applicant about why he did not include this claim earlier. However, even given this, I am unable to reconcile the apparent gravity of this attack with its absence from not only his protection application and accompanying statutory declaration, but also the letters from his father and [Mr J] which otherwise provide detail about incidents against the applicant but do not mention this claimed incident at all. This is particularly of concern because the claimed 2007 incident resulted in the applicant being hospitalised. I would expect the applicant and the applicant’s father to consider this worth mentioning in his letter.
The applicant claims to have been seriously injured, sufficient to require hospitalisation. His failure in putting this in his statutory declaration causes me to doubt that the event has occurred. Even with the documents said to evidence this event being provided by the applicant, I cannot reconcile his failure to mention it in his statutory declaration, nor that it is not mentioned by his father or [Mr J] in their letters. This causes me to have concerns with whether this event occurred and, further, to have concerns with the documents said to support this claim, as discussed in more detail below.
Detained 2-3 days after wedding in January 2009

In 2009 the applicant returned to his village to be married. The marriage took place at [a place] on [date] January 2009. During the first hearing he told me that 2 -3 days after the wedding, he was detained by the police and he was beaten again and released after he gave them money. I explored this claim with the applicant, and he confirmed this happened only a few days after his marriage.
After speaking with the applicant, I spoke with his wife, the second applicant. She also confirmed that the applicant had been taken away by the police and held for some time and mistreated 2-3 days after their wedding.
The witness, Mr [A], also confirmed this event in his evidence.
I asked the applicant in several different ways in order to confirm that his evidence was that he was detained and beaten by the police 2-3 days after his wedding, and that after this event, he had not been arrested or detained and nothing else had happened to him until his departure for Australia in July 2009, because he had returned to hiding after this detention.
This evidence given to me appears materially different to the evidence given prior to the hearing before me - the applicant having claimed prior to the hearing before me that he was arrested and detained by the police on [date] April 2009, that is, exactly three months after his wedding. The protection application states: ‘Again on [date]/04/2009 police raided my home and arrested me on the same account.’ He goes on to describe being beaten and then released. While he does claim he was falsely framed in another criminal case and beaten and humiliated before this, he gives no detail or timeframe and refers later (in question 44) to being falsely framed in year 2008.
In the statutory declaration made 23 January 2014, the applicant claims his friend [alias of Mr G] was picked up in March 2009 and tortured and killed in custody, and later they arrested and beat the applicant mercilessly. After he was released he fled to Australia in July 2009 to save his life. (I note here that the applicant amended the date of [alias of Mr G]’s death. In his protection application the applicant claimed [alias of Mr G]’s death occurred in June 2009 but by way of a notification of incorrect answers form provided to the Department on 24 January 2014, the applicant amended this claim to say that [alias of Mr G]’s death occurred in March 2009).
In neither document does the applicant mention at all that anything happened 2-3 days after his wedding.
The statement of [Mr K], the applicant’s father, states that during the year 2009, police again raided his house on 28-04-2009 and arrested his son, the applicant, and beat him mercilessly. The statement does not mention at all that anything happening 2-3 days after the applicants’ wedding. The statement of [Mr J] also does not mention anything happening 2-3 days after the applicants’ wedding.
These matters and the apparent inconsistencies in the evidence about whether he was picked up by the police 2-3 days after his wedding, or on [date] April 2009 do not appear to have been raised and discussed at the Department stage nor before the first Tribunal.
When I put these apparent inconsistencies to the applicants at the hearing they claimed that they had made this claim before the previous Tribunal. I noted that even if this was the case they had not mentioned it earlier in their application form or statutory declaration, nor was it mentioned in the letter from the applicant’s father. They responded that they had just written what came into their mind and their father had written just what had come to his mind.
In the post hearing submission, the representative provided a copy of the transcript with the previous Tribunal and highlighted an area where it is claimed the applicants had made this claim.
However, even on the most beneficial interpretation of what was said to the previous tribunal, I do not accept that the applicant claimed at that point that he was taken away by the police 2-3 days after his wedding, which was the clear evidence that he, his wife and their witness, Mr [A] gave before me.
The previous Tribunal member situated her questions by placing them in a time reference of two months after the death of the applicant’s friend. We know from the applicant’s amendment of claims provided to the Department that his friend [Mr G] was taken away in March 2009. So, the previous Tribunal member is situating her questions two months after this, that is, approximately the end of April 2009. The applicant does not contradict this time frame, nor does he refer to a timeframe of 2-3 days after his wedding. Rather, he says he was newly married, and after marriage there are some ceremonies. He goes on to say he lived with his in-laws but then that day went back to the village to have some ceremonies. I do not accept that the applicant is claiming here that this happened 2-3 days after his wedding.
But even if this is the case, there is an additional problem with this claim. In the pre-hearing submissions of April 2021, the representative, on instructions from the applicants, details the claimed incident of [date] April 2009. There is no mention, in the April 2021 submission, of any event 2-3 days after the wedding. So, for this additional reason, I do not accept that the applicants have claimed the applicant was detained 2-3 days after his wedding at any time prior to the hearing before me.
Nor do I accept their claims that they did not put this in their application or the statutory declaration provided to the Department because they only put down what came into their heads, and that the applicants’ father did not include this in his letter because he only put what came into his head. The detention of the applicant only days after his wedding would, I consider, have been a significant event for the applicants, newly married, and their families. I do not accept that this event would have not been remarkable or would not have come into their heads to mention if it had in fact happened.
I have carefully considered the fact that the wedding occurred 12 years ago. I accept that this is a considerable period in the past and that people’s recollections of events can be affected by the passage of time. However, I consider that their marriage would have been a significant event against which to measure other events such as the claimed detention of the applicant, and so to situate that claim as either 2-3 days after the wedding or three months after the wedding in April 2009, and in this context I do not accept the explanations for why this claim is inconsistent with earlier claims. I have also carefully considered what I have accepted of the applicants’ mental health in weighing their evidence of this matter. But I note that their evidence at the hearing was consistent with that of Mr [A] about the claimed event occurring 2-3 days after the wedding, but inconsistent with other evidence including their earlier claims and the support letter from the applicant’s father, which mentions the applicant being detained in April 2009 but not 2-3 days after his wedding. So, I do not accept that any mental health or memory issues of the applicants can squarely explain the inconsistencies between these different pieces of evidence.
I find that the applicant, the applicant’s wife and their witness, Mr [A], have invented the claim that the applicant was detained 2-3 days after his wedding. I do not accept this claim and I find that this impinges significantly on the credibility of the applicants and the claim that the applicant was detained in April 2009 or at any time. Further, I find that my concern with this claim leads me to place less weight on the evidence of Mr [A].
Implausibility of claim
The previous Tribunal noted that the first named applicant’s explanations for why he had been falsely accused of being involved in the disappearance and death of [Mr D] had changed over time. He has variously claimed that it was due to his family and the family of the murdered boy being old rivals, that it was due to political rivalries associated with local elections, and that it was because the applicant was a noted [sport] [player] and good players such as himself had a good reputation in the villages. The applicant said that he no longer played [sport] as his shoulder had been dislocated during the beatings by local police in 2003.
The applicant, despite me trying to approach this in multiple different ways, was unable to explain why he would have been targeted for harm as opposed to primarily his father, the head of [organisation] and therefore a person of some influence locally, or his brother. Despite the applicant claiming variously that it was family rivalry between his family and the family of [Mr E], or that it was because of the political allegiances of the two families, he was not able to explain why his father or brother were not targeted for harm as members of the family, but rather, he claimed that his father and brother were targeted only in order to attempt to locate him. He was not able to explain why he would have been the focus of the intent and desire to harm him. In relation to the [sport] explanation, if the applicant is claiming that players have some standing in communities, then he was unable to explain why he would have had standing and therefore been a target after his shoulder was dislocated in 2003 and he ceased to play.

100. This is in the context where the applicant claims to have been harmed in 2003, to have then been in hiding for four years, harmed again in 2007, again gone into hiding, been harmed in 2009 and then fled, and that his brother and father have been harassed not to target them, but in an attempt to determine the applicant’s whereabouts since that time. The applicant was singularly unable to provide any coherent information that would allow me to assess whether the alleged persecutors had indeed targeted the applicant for harm as claimed. If this was family rivalry, political affiliation, and/ or his past [sport] playing and associated local influence, the applicant could not explain in relation to the first two reasons proffered, why this would be only against him, not also targeting his family, and in relation to all three reasons given, why it would persist for so long.
101. I do not expect an applicant to be able to provide insight into the minds of their persecutor, but in this case the first named applicant has singularly failed to provide a coherent, intelligible and plausible explanation for why he claims to have been targeted for harm over a period of many many years and to still be of interest to the claimed persecutors.
Conclusions on credibility
102. I have carefully weighed the claims made by the first named applicant against my concerns above. I find that the inconsistent claims and the behaviour of the applicants as outlined above lead me to disbelieve the claims of the first named applicant to have been targeted for harm by local rival families and local authorities following the disappearance and suspected murder of a local man and the first named applicant being accused of being involved.
103. Importantly, the concerns I have highlighted above are not solely reliant on the applicant’s memory or his mental health status. Rather, they are tied to key pieces of evidence provided at the beginning of this process which are irreconcilable with other parts of his evidence, or the actions of the applicants.
104. Having carefully considered the claims of the first named applicant, the documents provided, and the actions of the applicants, I find that I consider the applicant’s claims not to be credible. I find that the first named applicant has invented the claims to have been harmed in the past, and his claims to fear harm if he returns to India.
105. I find that the applicant’s claims of harm are lacking in plausibility and credibility.
106. On the basis of the lack of credibility and plausibility, I do not accept that the applicant was accused of being involved in the disappearance and death of [Mr D], son of [Mr E] . I do not accept that the family of [Mr E] framed him for political or any other reasons. I do not accept that the applicant and his two friends [Mr F] and [Mr G] were picked up and detained by the police [in] May 2003 and detained for three months in various locations, beaten, and denied food and hospitalised on several occasions. I do not accept that the family of [Mr E] used their influence with the police to frame them. I do not accept that the applicant’s father bribed the police to release the applicant.
107. I do not accept that the matter got silent nor that the applicant was in hiding for about five years. Nor do I accept that the applicant and his friends were occasionally called to the police station.
108. I do not accept that the applicant was detained by the police in 2007, noting as above that this claim has been inconsistent and was not mentioned in the supporting statements of the applicant’s father and [Mr J].
109. I do not accept that 2-3 days after his marriage on [date] January 2009, the applicant was detained by the police and beaten, noting as above that this claim has been inconsistent and was not mentioned in the supporting statements of the applicant’s father and [Mr J].
110. I do not accept that on [date] April 2009, the police raided his home and arrested him, that he was taken to the [Town 1] police station and beaten over several days in the presence of [Mr E] and his ally [Mr H] and the applicant was hospitalised later. I note that at the hearing the applicant claimed that he was detained 2-3 days after his wedding and was adamant that he had not been detained or harmed after this. I note that the second named applicant claimed her husband had been detained 2-3 days after their marriage and again in approximately April 2009. I do not accept any of these claims as true.
111. I do not accept that before this he was falsely framed in another criminal case and beaten and humiliated, either in 2008 or at any other time.
112. I do not accept that the applicant’s friend [Mr G] ([alias of Mr G]) was detained, tortured, and killed in custody either in March or June 2009 or at any other time. Nor do I accept that the applicant was attacked soon after the death of [alias of Mr G] – either in April 2009 as claimed or at any other time.
113. I do not accept that the family of [Mr E] or anyone else has threatened to shoot the applicant at any time.
114. I do not accept that, on his return to India in March 2011 that the police raided the applicant’s house.
115. I do not accept that around 5 January 2013 or at any time his friend [Mr F] was picked up by the police, was beaten and then died.
116. I do not accept that the police or anyone else has harassed the applicant’s father. I do not accept that the applicant’s father was picked up and beaten by the police at any time. I do not accept that the applicant’s brother has been harmed due to the applicant. I do not accept that they thought his brother was the applicant and attacked the family home. I do not accept that any of his family members have been detained or threatened or harmed in any way as a result of the applicant’s claims.
117. I do not accept that the applicant has come to the attention of the local police or anyone else for any reason.
118. I do not accept that the applicant, his father, or anyone else in his family are workers, members, or supporters of the Indian National Congress Party.
119. I do not accept that the applicant or his family have had arguments with [Mr I] or anyone else associated with the Akali Dal party at any time.
120. Whilst I am prepared to accept that the applicant has stitches on his head, because he was able to show scars which may or may not be the result of stitches there, I do not accept that these were caused by an assault from the police or have any connection to or assist in establishing his claims.
121. I have considered the evidence of [the] second applicant. In considering what weight to give that evidence I note her claim which was inconsistent with prior evidence and which I have comprehensively disbelieved above that the first applicant was detained 2-3 days after their wedding. Given she said she was not able to be aware of what had happened to the applicant prior to this (because it was an arranged marriage), this was a central part of her evidence about what the first applicant claimed had happened to him. Therefore, my disbelieving her evidence on this, a significant portion of her evidence of what has happened to the applicant leads me to doubt and disbelieve her evidence on other things she has claimed have happened to the applicant. Given my concerns with the claims above, I give her evidence in relation to the claims of what happened to her husband no weight as establishing or supporting his claims.
122. I have considered the evidence of Mr [A]. Given my concerns with the claims above, I give his evidence in relation to the claims of what happened to the applicants no weight as establishing or supporting their claims. I have considered his statement and his evidence at the hearing. whilst I accept that he lived in [Village 1] and had a friendship with [Mr D]. But given my concerns with the claims of the applicant set our above, and in particular the claim of detention of the applicant 2-3 days after his wedding which Mr [A] also stated, I give no weight to Mr [A]’s evidence of the harm he claimed the applicant experienced.
Findings in relation to other applicants
123. The second named applicant’s claims relate to those of her husband. Given what I have found above about the claimed harm against the first named applicant, and the lack of any interest or targeting of him by a rival family, the local police or anyone else, I do not accept that [the] second applicant had to hide or be discreet in any way when she returned with the couple’s daughter in 2010.
124. Both applicants have claimed that something bad may happen to their kids. When pressed they claimed that those who would harm the first named applicant would harm their children to get at him. I note that in the report from [the psychologist] [the second applicant] claimed the children could be shot by those targeting the first named applicant or be more or less under house arrest. I do not accept this claim given that I have rejected the claims of the first named applicant above.
What is accepted?
125. I accept that applicants one and two are nationals of India, as is their son. I accept that their daughter is now an Australian citizen.
126. I accept that the applicants would return to India to [Village 1], [Town 1]. I accept that they will return with their two young children, their daughter being an Australian citizen.
127. I accept that the first language of the two children is English and that if they were to return to India they would be negatively impacted by language barriers and by the dislocation of their schooling and friendships.
128. I accept that the applicants have worked in a variety of roles in Australia and that the second named applicant has acquired some training in Australia
129. I accept that the first named applicant is suffering symptoms of PTSD and associated depression and anxiety. I accept that the second named applicant is suffering anxiety and depression.
130. I accept that the first named applicant has stitches on his head. I accept that his shoulder may have been dislocated in 2003 which meant he could no longer play [sport]. But I do not accept, given my concerns above, that these physical injuries are as a result of any of the things he claims have happened to him. I note that such physical injuries could have been sustained in a variety of accidents. I give these physical injuries no weight in supporting his claims.
Is there a real chance any of the applicants will suffer serious harm amounting to persecution if they return to India?

131. On the basis of my findings above I find that if the applicants return to India they will return as a family. They will return to [Village 1], where they have family support and the applicant’s father is head of [organisation]. I find they will have family support to establish themselves. While I accept that the family, and in particular the children will have difficulties adjusting to living in India, I find that this family support will ameliorate much of this difficulty.
132. As above, I have rejected the claims of the applicant to have been harmed and targeted by [Mr E], his family, or local police either independently or at the behest of the [Mr E] or anyone else. Considering my credibility findings and what I have accepted of the applicant’s claims, I find that, having rejected the claims of the applicant to have been accused of or targeted because of the death of [Mr D], son of [Mr E], having rejected his claims that the family of [Mr E] framed him for political or any other reasons, I find that there is no real chance that the first named applicant will be harmed by [Mr E], [Mr I] from the Akali Dal party, the family of [Mr E], gangsters associated with [Mr E] , the local police, anyone associated with Akali Dal, or anyone else for reasons of his claimed political opinion as a worker, member or supporter of the Indian National Congress Party or a family member of a worker, member or supporter of the Indian National Congress Party or for any other reason, on return to [Village 1] now or in the reasonably foreseeable future.
133. I have rejected the claims of the second named applicant to have had to act discreetly when she and their daughter returned in 2010. The second named applicant has not claimed to fear harm herself on any other basis. I find that there is no real chance the second named applicant will be harmed by anyone for reasons of her membership of her husband’s family or for any other reason on return to [Village 1] now or in the reasonably foreseeable future.
134. I have carefully considered the situation for the applicant’s children, who while not applicants (after the withdrawal of the third named applicant’s application), I have accepted will return with them. The second named applicant claims that the children will have difficulty adjusting to life in India. I accept this, I accept that the children may speak English as a first language and would have to learn to speak Punjabi. I accept that they would miss their friends and school and would have to adjust to schooling and make friends in India. I accept that this would be difficult for them. I do not accept that such circumstances can be considered to reach the threshold of serious harm because these adjustments the children would have to make would not be and have not been characterised as harming or causing damage to the children so serious as to elevate that harm to the level of serious harm.
135. I note that the second named applicant expressed concern that the children would be shot by those targeting her husband, and the children would have to stay inside the house and not be able to visit playgrounds. I do not accept these claims, given I have rejected the claims of the first named applicant to have suffered harm or to face harm in the future.
136. The second named applicant expressed to the previous tribunal that there is a level of violence in India, that there is a level of violence against women especially rapes, and she feared for her daughter in particular in this regard.
137. The country information indicates that much of the violence perpetrated against women and girls is from their family members.[2] This is not the violence that the second named applicant claimed to fear for her or her daughter. I accept that there is violence in Indian society against women and children. But I do not accept on the evidence before me that there is a real chance that either the second named applicant, or the two children, face a real chance of being harmed in the reasonably foreseeable future because of this violence. This is because the violence the second named applicant claimed to fear and that would occur is that outside the home and family unit. I have found however that the applicants will return to their home village, where they have protection and support of their family members. I find that such family support ameliorates the chance of harm outside the family home to the second named applicant and to their daughter. I note in making this finding that the daughter lived in [Village 1] for some months as a baby in 2010 – 2011. In making this finding I have considered the effect that any harm would have on the second applicant given I have accepted she suffers symptoms of anxiety and depression. But I do not accept that there is a real chance of her suffering the harm she claims will occur to her or her daughter, and therefore I do not accept that she will suffer harm which may, even with the impact of her mental health, amount to serious harm.
[2] DFAT Country Information Report – India, 10 December 2020,3.113 - 3.133.
138. I have considered the situation for the applicants together. I find that there is no real chance of the applicants either individually or as a family suffering serious harm if they return to [Village 1] now or in the reasonably foreseeable future.
Is there a real risk of any of the applicants being subjected to significant harm if they are removed from Australia to India?
139. As above I have found that there is no real chance of the first named applicant being harmed by [Mr E], [Mr I] from the Akali Dal party, the family of [Mr E], gangsters associated with [Mr E], the local police, anyone associated with Akali Dal, or anyone else for reasons of his claimed political opinion as a worker, member or supporter of the Indian National Congress Party or a family member of a worker, member or supporter of the Indian National Congress Party or for any other reason, on return to [Village 1] now or in the reasonably foreseeable future.
140. On the basis of the same of the same reasoning I find that there is no real risk the first named applicant will suffer significant harm from any of those identified if he is removed from Australia to [Village 1], India.
141. When asked if there was any other basis on which the applicant thought he might be harmed he said that [Mr I] would harm him as [Mr I] is very vengeful. As above I have not accepted that [Mr I] would harm the applicant on return.
142. I have considered the situation for the second named applicant. She did not make any further claims that she would be harmed other than those I have rejected above on the basis of her membership of her husband’s family. On the same reasoning as above I do not accept that the second named applicant, nor the applicants’ children who would return with them, will be shot by those targeting the first named applicant, nor do I accept that the children would have to stay inside the house or visit playgrounds.
143. I do accept as above that the applicants’ daughter and son would have to readjust to life in India and this would cause them some difficulty in learning Punjabi and making friends and going to a different school. I do not accept that these adjustments to life in a different country constitute any of the defined forms of significant harm, they will not have the effect of nor are they intended to cause degrading treatment or any other form of significant harm.
144. I have carefully considered the claims that there is a level of violence in India, that there is a level of violence against women especially rapes, and that the second named applicant feared for her daughter in particular in this regard.
145. The country information indicates that much of the violence perpetrated against women and girls is from their family members.[3] This is not the violence that the second named applicant claimed to fear for her or her daughter. I accept that there is violence in Indian society against women and children. But I do not accept on the evidence before me that there is a real risk that either the second named applicant, or the two children, face a real risk of being harmed in the reasonably foreseeable future because of this violence. This is because the violence the second named applicant claimed to fear and that would occur is that outside the home and family unit. I have found however that the applicants will return to their home village, where they have protection and support of their family members. I find that such family support ameliorates the chance of harm outside the family home to the second named applicant and to their daughter. I note in making this finding that the daughter lived in [Village 1] for some months as a baby in 2010 – 2011. In making this finding I have considered the effect that any harm would have on the second applicant given I have accepted she suffers symptoms of anxiety and depression. But I do not accept that there is a real risk of her suffering the harm she claims will occur to her or her daughter, and therefore I do not accept that she will suffer harm which may, even with the impact of her mental health, amount to significant harm.
[3] DFAT Country Information Report – India, 10 December 2020,3.113 - 3.133.
146. I have considered the situation for the applicants together. I find that there is no real risk of the applicants either individually or as a family suffering significant harm if they return to [Village 1] now or in the reasonably foreseeable future.
Referral for consideration of Ministerial Intervention
147. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
148. A considerable amount of information has been provided in relation to the request for a referral to the Minister for consideration of their non-delegable power under s. 417.
149. The first question is whether I am able to refer this matter for consideration, given that the second named applicant made a s351 request which included all of the family at that time.
150. However, I am satisfied that there has been a material change in circumstances, being the acquiring of Australian citizenship of the applicants’ daughter [the third applicant].
151. Such a change in circumstances appears to me, on studying the Ministerial guidelines, to be an appropriate matter to refer the case.
152. I have had regard to the report of [the psychologist] in particular. He opines that [the third applicant] will suffer significant hardship if returned to India. Having carefully considered his report, I agree that [the third applicant] in particular, but also the applicants’ son [would] suffer hardship if returned to India. I note also that the first and second named applicants are suffering a range of psychological symptoms.
153. Having to relocate to India the children would suffer from being removed from their school, friendship, and community groups. Whilst above I have not accepted that his amounts to serious or significant hardship, it is a level of hardship that would appear would have an impact on the children at their age. The children are enjoying a good standard of education as well as other advantages of being part of the Australian community. Their best interests might appear best served to remain in Australia to continue to go to school, be with their friends and community. Such might be construed as strong compassionate circumstances that if not recognised would be in serious, ongoing, and irreversible harm and continuing hardship to an Australian citizen and to her family.
154. I further note the letters of support from friends of the family as well as teachers of the children and other support people. It is clear that the family and the children are respected and valued members of their local community in Australia and are well integrated into that community.
155. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417 and s501J)’ and will refer the matter to the Department.
Conclusions
156. 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). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
DECISION
157. The Tribunal affirms the decision not to grant the first and second applicants Protection visas.
158. The Tribunal does not have jurisdiction for the third applicant.
Sean Baker
Member

Research Directorate, Immigration and Refugee Board of Canada, Ottawa, 5 May 2014, IND104839.E; DFAT Country Information Report – India, 10 December 2020, 5.62 – 5.65.

[2021] AATA 4481

8 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction