1820563 (Refugee)

[2019] AATA 6566

1820563 (Refugee) [2019] AATA 6566 (20 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1820563

COUNTRY OF REFERENCE:                   India

MEMBER:Paul Noonan

DATE:20 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 20 August 2019 at 2:49pm

CATCHWORDS
REFUGEE – protection visa – India – Federal Circuit Court remittal – religion – Muslim convert to Jehovah’s Witnesses – claimed to be the first such convert – fear of harm from Muslims and own family (as a convert) and Hindus (as a Christian) – status of Jehovah’s Witnesses in particular and Christians in general in India – lack of recent documented incidents of persecution of Jehovah’s Witnesses – reasonability of relocation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 36, 65, 91R
Migration Regulations 1994 (Cth), Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

Randhawa v MILGEA (1994) 52 FCR 437

SZATV v MIAC (2007) 233 CLR 18

SZFDV v MIAC (2007) 233 CLR 51

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of India, applied for the visa on 20 August 2012 and the delegate refused to grant the visa on 24 December 2012. There was no evidence before the Tribunal that the applicant is a national of any country other than India and a copy of his Indian passport is contained upon the Tribunal file. The Tribunal finds that India is the applicant’s country of reference with respect to the complementary protection criteria.

3. The history of this matter is as follows:

   ·On 19 December 2013 a previously constituted Tribunal affirmed the delegate’s decision of 24 December 2012.

   ·On 19 August 2014 the Federal Magistrates Court ordered that the matter be remitted for consideration by consent on the basis that the Tribunal failed to consider the claim that relocation was not reasonably practicable due to the risk of terrorism‑related violence.

   ·On 13 March 2015 the applicant appeared before a previously constituted Tribunal to give evidence. The presiding member was unable to finalise the decision prior to her appointment at the Tribunal ceasing.

   ·On 27 May 2016 the applicant appeared before a reconstituted Tribunal to give evidence. The reconstituted Tribunal affirmed the delegate’s decision of 24 December 2012.

   ·On 29 June 2018 the Federal Circuit Court ordered that the matter be remitted for consideration requiring the application to be determined according to law on the basis that the applicant had not been put on notice of issues before the Tribunal until after he had given evidence.

4. The applicant appeared before the Tribunal on 7 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A] (Jehovah’s Witness congregation elder). The applicant also appeared for a continuation of the hearing of 7 May 2019 on 8 August 2019. The Tribunal hearings were conducted with the assistance of an interpreter in the Malayalam and English languages.

5. The applicant was represented in relation to the review by his registered migration agent, Mr [B]. The representative attended the Tribunal hearings.

   RELEVANT LAW

6. 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.

   Refugee criterion

7. 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).

8. 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.

9. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

10. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

11. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

12. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

13. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

14. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

15. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

16. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

17. 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’).

18. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

19. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

20. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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

21. In this case the applicant seeks protection from Australia primarily on the basis that he is a Muslim convert to the Jehovah’s Witness faith who fears harm on return to India both because of his conversion and his faith. He fears he will be targeted for harm by Muslims and his own family because of his conversion and by members of other faiths due to his faith. The Tribunal was satisfied from the evidence of Mr [A], the applicant and, on the basis of the Jehovah’s Witness information web site JW.org, that Jehovah’s Witnesses consider themselves Christians and concluded that it is reasonable to conclude that they are perceived as such in India.[1] The Tribunal viewed country information pertaining to Christians in this light and neither the applicant nor his representative objected or questioned this when information pertaining to Christians in general was put to them.

    [1] >

    The Tribunal noted at the outset of this hearing that the applicant has received several previous decisions in respect to this matter from the delegate and previous differently constituted Tribunals. The Tribunal noted that the current hearing is a continuation of those hearings and it will have regard to evidence given and findings made in previous hearings.

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

23. The Tribunal has reviewed relevant country information and discussed this information with the applicant at hearing. The Tribunal considered the latest Department of Foreign Affairs and Trade (DFAT) report which set out, in respect to religion in general in India, that:

    3.4 Section 15 of the Constitution prohibits discrimination against any citizen on the grounds of religion. Section 25 guarantees the right to freely profess, practise and propagate religion, and section 26 guarantees every religious denomination or any sect the freedom to manage its own religious affairs. Federal law provides minority community status to six religious groups: Muslims, Sikhs, Christians, Parsis, Jains and Buddhists. State governments can grant minority status to religious groups that are minorities in a particular region.

    3.5 According to the 2011 census, 79.8 per cent of Indians are Hindu, 14.2 per cent are Muslim, 2.3 per cent are Christian and 1.7 per cent are Sikh. Two per cent of Indians adhere to another religion including Buddhists, Jains, Zoroastrians, Jews, Baha’i and tribal religions.

    3.6 Anti-conversion laws exist in Arunachal Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Odisha, Rajasthan and Uttarakhand. Six of these states enforce the laws; there is no implementing legislation for the anti-conversion law in Arunachal Pradesh, Rajasthan and Jharkhand. The laws prohibit conversion based on force, allurement, inducement or fraud, but sources report that there are instances where the laws have applied to Muslims and Christians engaged in proselytization.[2]

    [2] Department of Foreign Affairs and Trade, Country Information report – India, 17 October 2018, p.13

24. DFAT also set out findings in respect to Christians as follows:

    3.11 Christians constitute approximately 2.3 per cent of the population. The largest Christian denominations today are Roman Catholics, Syro-Malabar Catholics, Malankara Orthodox Syrians and various Protestant denominations. Christianity is the majority religion in the north-eastern states of Mizoram, Nagaland and Meghalaya, and has a strong presence in the southern states of Goa, Kerala and Tamil Nadu.

    3.12 A rise in Hindu nationalism has coincided with increasing incidents of violence and discrimination against Christians. Christians have increasingly faced poorly founded legal proceedings and police reports, difficulties for churches and NGOs dealing with local government authorities, public statements by prominent officials denigrating Christians, and threats or acts of violence. In July 2017, attackers publicly murdered a Christian pastor in Punjab, allegedly for attempting to convert others.

    3.13 Authorities have disbanded or de-registered Christian charities and NGOs as part of a continuing trend limiting NGO activity. One of India’s largest Christian charities, the United States-based Compassion International, shut down after 48 years of operating in India when the government banned foreign donations to the organisation. The government claimed the charity, which operates child sponsorship programmes out of local Indian churches, was using its charity status to convert children to Christianity.

    3.14 On 2 August 2017, the Supreme Court asked the Odisha government to reinvestigate 315 cases pertaining to anti-Christian violence in 2008 in Kandhamal District. The 315 cases, from a total of 827 registered cases, had been closed on grounds of insufficient evidence against the accused. Charges were filed in the other 512 cases. Completed trials in 362 cases, resulted in 78 convictions. The Supreme Court also directed the state government to pay compensation for injury and property loss or damage.

    3.15 DFAT assesses that most Christians live day-to-day without societal discrimination or violence. Christians engaged in proselytising, or perceived to be proselytising, particularly to Hindus, face a moderate risk of official and societal discrimination, and a moderate risk of societal violence.[3]

    [3] Department of Foreign Affairs and Trade, Country Information report – India, 17 October 2018, p. 14-15

25. The Tribunal noted that DFAT sets out in its latest report that moderate risk is taken to mean that DFAT is aware of sufficient incidents to suggest a pattern of behaviour.[4]

    [4] Department of Foreign Affairs and Trade, Country Information report – India, 17 October 2018, p.4

26. The Tribunal also had regard to the 2019 United States Commission on International Religious Freedom report which states that:

    In 2018, religious freedom conditions in India continued a downward trend. India has a long history as a secular democracy where religious communities of every faith have thrived. The constitution guarantees the right to religious freedom, and the nation’s independent judiciary has often provided essential protections to religious minority communities through its jurisprudence. Yet, this history of religious freedom has come under attack in recent years with the growth of exclusionary extremist narratives—including, at times, the government’s allowance and encouragement of mob violence against religious minorities—that have facilitated an egregious and ongoing campaign of violence, intimidation, and harassment against non-Hindu and lower-caste Hindu minorities. Both public and private actors have engaged in this campaign. In 2018, approximately one-third of state governments increasingly enforced anti-conversion and/or anti-cow slaughter laws discriminatorily against non-Hindus and Dalits alike. Further, cow protection mobs engaged in violence predominantly targeting Muslims and Dalits, some of whom have been legally involved in the dairy, leather, or beef trades for generations. Mob violence was also carried out against Christians under accusations of forced or induced religious conversion. In cases involving mobs killing an individual based on false accusations of cow slaughter or forced conversion, police investigations and prosecutions often were not adequately pursued. Rules on the registration of foreign-funded nongovernmental organizations (NGOs) were discriminatorily implemented against religious minority groups. Religious freedom conditions varied dramatically from state to state, with some states continuing to be relatively open and free for religious minorities, while others—if taken on their own—had “systematic, ongoing, egregious” violations of religious freedom. In 2018, the Supreme Court of India highlighted the deteriorating conditions for religious freedom in some states, concluding that certain state governments were not doing enough to stop violence against religious minorities and, in some extreme instances, impunity was being granted to criminals engaged in communal violence. Prime Minister Narendra Modi seldom made statements decrying mob violence, and certain members of his political party have affiliations with Hindu extremist groups and used inflammatory language about religious minorities publicly. Victims of largescale attacks in recent years have not been granted justice, and reports of new crimes committed against religious minorities were not adequately accounted for or prosecuted. India’s substantial population both complicates and limits the ability of national and state institutions to address these issues.

    Based on these concerns, in 2019 USCIRF again places India on its Tier 2 for engaging in or tolerating religious freedom violations that meet at least one of the elements of the “systematic, ongoing, egregious” standard for designation as a “country of particular concern,” or CPC, under the International Religious Freedom Act (IRFA). While the Indian government repeatedly has denied USCIRF access to India, the Commission welcomes the opportunity to openly and candidly engage with the government—including the chance for a USCIRF delegation to visit India—to discuss shared values and interests, including international standards of freedom of religion or belief and related human rights.[5]

    [5] Annual Report of the U.S. Commission on International Religious Freedom, April 2019, p. 174

1. The Tribunal also had regard to the Jehovah’s Witness website JW.org, which maintains a list of human rights violations perpetrated against Jehovah’s Witnesses around the world. The Tribunal noted that the only highlighted article is a report dated 11 November 2014, which sets out that it was the 30^th anniversary of an Indian Supreme Court ruling involving Jehovah’s Witnesses which protected the human rights of all citizens of India.[6] The Tribunal noted that JW.org sets out that there are currently around 11 active Jehovah’s Witness congregations in Bangalore, Karnataka that meet at least twice a week.[7]

   [6]

2. The Tribunal also had regard to the 2018 report “Hate and Targeted Violence Against Christians in India”, produced by the Religious Liberty Commission of the Evangelical Fellowship of India and the “United Kingdom Home Office Country Policy and Information Note – India: Religious minorities”, dated May 2018. The Tribunal noted that the 2018 report of the Religious Liberty Commission of the Evangelical Fellowship of India sets out reported incidents of violence for reasons motivated by religion against Christians in India during 2018. This report sets out that the vast majority of such attacks occurred in Uttar Pradesh with 132 reported incidents representing 40% of all such incidents. This is followed by Tamil Nadu and then Telangana. The report sets out a rising trend of such incidents in India; however, this trend appears to be concentrated in particular states in which Christians form a small state-level minority.

3. The Tribunal had regard to various evidence submitted by the applicant’s representative and the applicant including, but not limited to, an extract from Wikipedia entitled “Violence against Christians in India”, an extract from WorldWatchMonitor.org entitled “India’s anti‑conversion law in five states, but proposed to go national”, an extract from CounterPuch.org entitled “The Darker Side of India: Religious Violence”, an extract from Forbes.com entitled “religious Freedom is on the decrease in India”, an extract from ADFInternational.org entitled “India and its Anti Conversion laws”, an extract from First Post entitled “How coastal Karnataka was saffronised”, an extract from MyNation entitled “Muslim-Hindu couple married for 13 years brutally killed in Karnataka”, an extract from Sabrang India entitled “How anti-Muslim crimes reached a village in Karnataka after Pulwana attacks”, an extract from Asia News entitled “Karnataka: No end to violence against Christians”, an extract from Persecution entitled “Violence against Christians as elections draw close in India’s Karnataka state”, and an extract from Wikipedia entitled “2008 attacks on Christians in Southern Karnataka”.

   Does the applicant have a well-founded fear of harm should he return to India?

4. The Tribunal has before it the Department file ([file number]), which includes a copy of the applicant’s protection visa application and the delegate’s reasons for decision. In his application the applicant states his religion as Jehovah’s Witness. He lists an upper primary school education. He speaks, reads and writes English, Malayalan and speaks Hindi. He was born in Kerala, India to the Muslim faith.

5. In response to the question as to why he left India, the applicant stated it was to study. He stated that he had not experienced harm in India. He stated that he now fears he will be seriously injured or killed should he be required to go back to India as he is a Jehovah’s Witness. He fears this harm will be perpetrated by the police, religious leaders, the common people, Muslims and his own family. He provided a statutory declaration in support of his claim. In this statement he states that the authorities will not protect him from religious leaders as the politicians need their support.

6. In respect to his current circumstances, the applicant gave evidence that he remains fully involved in the Jehovah’s Witness faith. An elder of the faith, Mr [A], gave evidence on the applicant’s behalf attesting to his consistent involvement in the practices of the faith and his adherence to its tenants. He submitted evidence of the applicant addressing the congregation and of other activities undertaken by the applicant in support of the faith. The Tribunal accepted the testimony of Mr [A] as an elder of the faith as having considerable weight in this matter. Mr [A] confirmed that a central tenant of the Jehovah’s Witness faith is to proselytise and the Tribunal accepted this to be the case.

7. The Tribunal questioned the applicant in respect to his faith and considered his evidence was given in a straightforward and considered manner that was reflective of a person well connected to their faith. The Tribunal noted that the applicant’s adherence to his new faith has now been pursued for many years. The Tribunal accepted that the applicant has genuinely converted from his previous Muslim faith to the Jehovah’s Witness faith. The Tribunal asked the applicant whether he would seek to proselytise should he return to India. The applicant confirmed that he would do so as he desires to follow the tenants of his faith. The Tribunal accepted that the applicant would seek to proselytise should he return to India.

8. In considering the country information before it, the Tribunal notes that country information assesses that there has been a recent increase in levels of religious intolerance in India; however, there are states within India where Christianity remains the majority religion. The Tribunal noted the DFAT assessment (as set out earlier in these reasons) that Christians engaged in proselytising, or perceived to be proselytising, particularly to Hindus, face a moderate risk of official and societal discrimination, and a moderate risk of societal violence. Further, that the 2019 United States Commission on International Religious Freedom report (as set out earlier in these reasons) found that mob violence was also carried out against Christians under accusations of forced or induced religious conversion. In cases involving mobs killing an individual based on false accusations of cow slaughter or forced conversion, police investigations and prosecutions often were not adequately pursued. However, the Tribunal noted that these incidents were largely confined to non-majority Christian states and in particular the states set out in the Religious Liberty Commission of the Evangelical Fellowship of India report as discussed earlier in these reasons.

9. The Tribunal accepted that in his home area it is plausible that the applicant may be easily identified as a Muslim convert to the Jehovah’s Witness faith and that members of his family may then seek to harm him for reasons of family shame and that indeed this conversion news is now widely known amongst his extended family. The Tribunal accepted the applicant’s evidence (and that of Mr [A]) that his first cousins had recently visited him in Australia and expressed their anger at his conversion. Further, that his father and potentially his local Imam (whom he has informed of his conversion), are angry about his conversion for reasons of shame and the difficulties this may cause the family. The Tribunal accepted as plausible that if he returns to his home located in Kerala, India, as a practising Jehovah’s Witness, that his father or other family members may now seek to harm him for reasons of his religion.

10. The Tribunal then considered whether it would be reasonable for the applicant to relocate to another area of India. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

11. The Tribunal noted that there are 48,615 registered Jehovah’s Witnesses in India attending 684 congregations.[8]  The Tribunal raised the lack of recent documented incidents of persecution against Jehovah’s Witnesses by JW.org (other than a police violation of Witnesses’ rights in Karnataka state in 2014). Mr [A] submitted this was because Jehovah’s Witnesses sought not to provoke further persecution and as they believe in turning a blind eye to set an example in making peace. The Tribunal did not accept this explanation as reasonable plausible. JW.org clearly sets out incidents of persecution in many countries around the world. The Tribunal did not accept that incidents in India would not be reported purely because they were in India. The Tribunal considered the above country information strongly indicates that Jehovah’s Witnesses are not currently subject to persecution in India, particularly with reference to Christian majority states that do not have anti-conversion laws. The Tribunal noted examples submitted by the applicant including a 2008 series of attacks against churches in 2008 by a Hindu extremist group[9], a 2009 incident in which Witnesses were abused by a mob at Bangalore University after being accused of trying to convert a woman,[10] and the arrest of four Witnesses in March 2010 on charges of blasphemy in Karnataka.[11] In addition, the Tribunal noted that the applicant conducted recent research on this matter, in preparation for this latest hearing, and submitted articles setting out recent violence relating to conversion in India. However, these incidents primarily highlight Hindu violence perpetrated against Hindu converts to Islam.

    [8] UNHCR 2010 International Religious Freedom Report, p.6

    [11] United States Department of State - International Religious Freedom Report for 2011, p.14

12. The Tribunal put to the applicant that there is a significant Jehovah’s Witness presence in Bangalore, Karnataka. The Tribunal put to the applicant that states in India, without anti-proselytising laws, (such as Karnataka) appear to offer him a viable alternative relocation option. The Tribunal put to the applicant that this significant presence, and the relative lack of recent incidents of reported attacks against Christians in this area, also may indicate that there is no real chance of serious harm or real risk of significant harm to him should he relocate there.

13. Post hearing, the applicant did submit a number of articles concerning violence against Christians in India and in Karnataka. These included a 2008 series of attacks against churches in 2008 by a Hindu extremist group[12], a 2009 incident in which Witnesses were abused by a mob at Bangalore University after being accused of trying to convert a woman,[13] and the arrest of four Witnesses in March 2010 on charges of blasphemy in Karnataka.[14] He also submitted three further articles, including an article dated 10 November 2013 from Asia News which reported that the Global Council of Indian Christians had asked for protection due to 21 anti‑Christian attacks carried out by Hindu extremists in the past four years.[15] The second was an article from Persecution.org dated 8 September 2019 which reported an attack, constituting vandalism, on a church of the Assembly of God in Karnataka which was linked to election tension.[16] The third article was from Wikipedia.org which stated there had been a series of attacks in churches in southern Karnataka during 2008.[17] 

    [12] UNHCR 2010 International Religious Freedom Report, p.6

    [14] United States Department of State - International Religious Freedom Report for 2011, p.14

    [15] >

    While the Tribunal has taken account of these articles, the Tribunal considered they also reflected very low levels of violence directed against Christians in recent years in Karnataka, as reflected by the country wide report by the Religious Liberty Commission of the Evangelical Fellowship of India, as cited earlier in these reasons.

14. The applicant agreed there is a significant Jehovah’s Witness presence in Bangalore. However he submitted that it is the fact that he is a Muslim convert that causes him to fear persecution. He will be compelled to tell his story. The Tribunal noted past evidence given by Mr [A] and himself that Jehovah’s Witness are cautious in respect to their proselytising in India and he is also cautious in his approach. The applicant agreed this is the case; however, he submitted that he is compelled to tell his story to everyone. He submitted that a Muslim, who may at first be receptive to listening to him, when he hears of his conversion, may well inform the local Imam. He submitted that if this occurred news of his conversion would quickly spread amongst the Muslim community.

15. The Tribunal noted that in general Muslims are considered to be moderate in India and there is no sharia law or other indicators of Islamic radicalism present in India and no recent recorded incidents of persecution by Muslims against Christians. The applicant submitted that his is a unique case as there has never been, as far as he is aware, a Muslim who has converted to the Jehovah’s Witness faith in India. He submitted that he feared that there are radicalised Muslims in India who would seek to persecute him if they found out about his conversion. He submitted an article from 2017 recounting an attack in 2010 by Muslim radicals upon a professor who was accused of making inflammatory remarks about the prophet Mohammed.[18] He further feared that news of his location would get back to his local area via the religious communication network and members of his family may seek him out with a view to seriously harming him.

    [18] This article was unattributed but the Tribunal accepted it as genuine

16. The Tribunal has carefully considered the arguments of the applicant in respect to his fears of persecution related to his claimed unique status as a Muslim convert and also in respect to the recent up swelling of Hindu nationalism and its impact upon Christians who proselytise. However, the available country information indicates that in Bangalore there are many active Jehovah’s Witnesses. Further, there is no documented evidence of persecution against Witnesses in the past five years before the Tribunal, anywhere in India, despite there currently being 48,615 registered Jehovah’s Witnesses in India. There is also extremely low current reports of persecution against Christians in Karnataka and other states in which Christians have a more significant presence. As noted earlier in these reasons, the up swelling in Hindu nationalist inspired persecution of Christians is also contained to a few states. The Tribunal noted that the applicant’s representative submitted an undated report of a militant Hindu nationalist proposing a nationalisation of anti-conversion laws by 2021.[19] There was no evidence before the Tribunal that this was the current policy of the Indian government and the Tribunal did not accept that that such isolated campaigning was indicative of a significant expansion of such laws to places such as Karnataka in the reasonably foreseeable future.

    [19] >

    The Tribunal has considered the evidence submitted by the applicant in respect to Muslim radicalised attacks and attacks of Jehovah’s Witnesses; however, these recount very isolated incidents that occurred some years ago. Overall, the Tribunal considered the country information does not indicate a radicalisation of the Muslim population or an intrinsic desire to persecute Christians, or converts to Christianity, such that they, or local Imams, would seek to broadcast news of his conversion or seek retribution for his conversion should they become aware of this. As such, the Tribunal did not accept that people in the applicant’s local area would come to know of his presence in a large urban area such as Bangalore either by the passing of news on the religious contact network or by random encounter.

17. The Tribunal has also considered the applicant’s fear of harm in respect to terrorist activity. The Tribunal noted in written submissions to a previously constituted Tribunal that the applicant asserted that the risk of terrorism attacks within India makes it unreasonable for the applicant to relocate within India. The Tribunal noted that the latest DFAT report makes no mention of the risk of terrorism attacks in India and there was no evidence before the Tribunal demonstrating terrorism attacks in the past five years in India.

18. After considering the above evidence both individually and cumulatively the Tribunal concluded that there is there is no real chance of serious harm to the applicant in Bangalore, Karnataka for reasons of his religion either by the police, religious leaders, Hindu nationalists, the common people, Muslims or any other group, including terrorists, because the chance is so exceedingly remote.

19. In respect to the reasonableness of the applicant relocating to this area, the Tribunal noted that the applicant is proficient in English and that the services of the translator were largely not required during the hearing. The Tribunal noted that while the local language in Bangalore is Kannada, country information indicates that English is also widely spoken and that nearly all of the younger generation speak English.[20] The Tribunal also noted that the applicant is relatively young and has employment experience, he has no dependents and has been able to successfully relocate to Australia in the past and that these factors may also suggest he would be able to successfully relocate to Bangalore. There was no suggestion the applicant would not be able to practically and legally access this area of India. Further, he is able to reach Bangalore without having to pass through his home area. The Tribunal has already noted the significant presence of his faith in the area and considered this will assist him in his relocation process. The applicant and his representative  reiterated his fears of harm in respect to this area but did not meaningfully argue that relocation would not be reasonable either during the hearing or in post hearing submissions. The Tribunal also considered the applicant’s previous submissions on this issue. Previously the applicant raised issues in respect to the applicant’s English skills and that he would miss the Australian Jehovah’s Witnesses and Mr [A]. After weighing these factors up, the Tribunal considered it reasonable to expect the applicant to relocate to a place like Bangalore, Karnataka within India.

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20. As the Tribunal has found that it is reasonable for the applicant to relocate to a place like Bangalore, Karnataka within India it follows that the Tribunal was not satisfied that he has a well-founded fear of persecution on his return to India by reason of his religion.

    Is there a real risk that the applicant will suffer significant harm upon his return to India?

21. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa), that being whether on the evidence there are 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 will suffer significant harm.

22. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. The Tribunal has found there is not a real chance of the applicant suffering serious harm due to his religious claims or because of terrorism. The applicant has not raised any other claims. As such the Tribunal finds that the applicant does not face a real risk of significant harm due to his religious claims or because of terrorism.

23. Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

24. The Tribunal has found that there is not a real chance of the applicant suffering serious harm should he relocate to an area such as Bangalore, Karnataka within India for reasons of his religion or terrorism acts and that it is reasonable for him to do so.

25. For the reasons that are set out above the Tribunal does not accept, based on the country information and his individual circumstances, that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India that there is a real risk that he will suffer significant harm for reasons arising from the applicant’s conversion to the Jehovah’s Witness faith or the combination of his faith and conversion or for terrorism related reasons should he relocate to Bangalore, Karnataka within India.

26. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

    DECISION

28. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Paul Noonan
    Member