1821974 (Refugee)

1821974 (Refugee) [2024] AATA 3445 (23 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1821974
COUNTRY OF REFERENCE:                   India
MEMBER:Tony Caravella
DATE:23 May 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 May 2024 at 1:35pm
CATCHWORDS
REFUGEE – protection visa – India – fear of harm from neighbour – applicant and friend scuffled with neighbour’s father, who fell and later died in hospital – threatened, blackmailed and assaulted by neighbour and family, and their payments to police and strong political ties – late claim of conviction for murder and release within months after neighbours withdrew case – previous travel to other countries without applying for protection – inconsistent and improbable claims and no credible or persuasive evidence – applicant decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (5), 36(2)(a), (aa), (2A), 65
Migration Regulation 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
MIMA v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 July 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of India, applied for the visa on 7 May 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. The delegate also found the applicant is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
The applicant appeared before the Tribunal on 15 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
Background
The applicant claims he was born in [Location], Haryana, India in [Year]. He declares he is a citizen of India. He also declares that he is not currently a citizen or national of any other country. He declares he has no right to enter or reside in, whether temporarily or permanently, any other country other than India.
The Department of Home Affairs records show the applicant first arrived in Australia [in] January 2017 as the holder of a [Specified] visa to attend [an Event] in Brisbane. He entered Australia at Sydney.
The applicant declares he married in [Year] in Haryana. He declares his wife and his [children] live in India, as do his mother and father. He also claims his sibling also lives in India.
He claims he completed secondary school in Haryana and claims he worked as a farmer while in India.
He declares he has not travelled to any country outside of India in the last 30 years.
Protection visa application
In his Application for a protection visa (Form 866), the applicant declares, “I found my life under threat in India so I decided to leave the country.” I summarise the applicant’s claims for that Form 866 as follows: In particular, he claims he had a fight with his neighbours. He claims he and his friend bashed the neighbour’s father who was admitted to hospital. He claims they, that is his neighbour, paid the hospital to kill the father and the hospital gave the wrong medicine. The applicant claims the hospital gave a certificate to the family certifying the person, presumably the father, had internal injuries and passed away. He claims the family started to blackmail him to pay money.
The applicant claims that in the beginning they did not agree to pay the money because the fight was not that serious such as to kill a person. However, the neighbours lodged a First Information Report and threatened the applicant’s family. The applicant’s father decided to compromise and they paid money and the complaint was withdrawn, however the neighbours continued to ask for money.
In relation to seeking help in his country, the applicant claims his neighbours paid money to the authorities not to take action against them.
In response to the question on the Form 866 asking whether the applicant moved, or tried to move, to another part of India, the applicant declares he did not and explains the reason for not relocating was because he had to go to the police station “for reporting.”
The applicant claims he was assaulted several times by his claimed enemies; however, he adds, no one took action against them.
He claims he thinks the authorities in India cannot and will not protect him if he returns because his enemies paid money to the police and because of their strong political ties.
Application for review
The applicant was not represented in relation to the review.
Evidence
I have the following evidence before me in considering this application for review of the delegate’s refusal decision. This includes:
a)A copy of the applicant’s Indian passport issued to him [in] 2010;
b)A digital recording of an interview between the applicant and an officer of the Department held on 30 May 2018;
c)The applicant’s Application for a protection visa (Form 866);
d)The delegate’s decision record issued on 13 July 2018, a copy of which was provided to the Tribunal by the applicant;
e)The review application form lodged online with the Tribunal by the applicant on 30 July 2018; and
f)Country-of-origin information (COI) from the Department of Foreign Affairs and Trade (DFAT).
Tribunal hearing
I summarise the applicant’s claims and oral evidence given at the hearing as follows:
The applicant confirmed he was fit and able to participate fully in the Tribunal hearing. He confirmed his biographical details, including his place and date of birth, are correct as declared on the Form 866.
The applicant told me he married in [Year] but has not been in contact with his wife for 6 years. He said he is not divorced. When I asked if he lived with his wife before leaving India to come to Australia, he told me he did not as he worked on farms in India.
Upon asking the applicant to describe his life in India before travelling to Australia, he told me that from 2012 to 2018 there was a murder case and he was in gaol for part of this time. He told me that “everything is in the documents”. I pointed out that I was concerned the documents may be inaccurate because, for example, he declares in his Form 866 that he has never been found guilty or convicted of any offence in any country,[1] whereas he had just told me that he spent some time in gaol in the period 2012 to 2018 for murder. He then told me he spent only 3 or 6 months in gaol for murder. He told me “I did not commit the murder, someone else did but my name came into it.” When I asked him to explain what he meant by this, he said “He kept me tied up in a small room for many days. His son kept me tied up, the father died.”
[1] See question 73 in the Form 866.
When I asked whether he has travelled to any other country outside of India, he told me he travelled to [Countries 1 and 2]. He told me he went there but he cannot remember when. He then said it was about 2013 and confirmed it was after he spent time in prison in relation to the murder.
I asked the applicant to tell me what the fight was about with his neighbours. The applicant told me his grandfather was old and his neighbour’s son hit the applicant’s father. When the applicant went to the neighbour’s house to ask why he hit his father, a scuffle began resulting in the neighbour’s son pushing his own father who then fell in a gutter and broke his neck. The name of the deceased is [Mr A]. He confirmed that the son pushed the father. He told me the neighbour’s sons names are [Mr B and C]. [Mr B] was the one who pushed the father and caused him to fall. He told me this incident happened sometime around 2005 to 2007. He then told me he was imprisoned sometime in around 2005 to 2007.
I read out the applicant’s statement written in the Form 866[2] where he claims he had a fight with his neighbours, and where he claims that he and his friend bashed the neighbour’s father who was admitted to hospital. I pointed out that this appears to read differently to the claim he was making at the hearing. The applicant replied saying “No, it is the same.” When I asked him to explain more clearly, he said the boy attacked his grandfather so the applicant and his friends went to the neighbour’s house and [Mr B]’s father tried to protect the applicant but in doing this caused [Mr B]’s father to fall and break his neck. The applicant told me they took [Mr B]’s father to hospital at Kuruk Shetra and Patiala.
[2] At question 77 of the Form 866.
When I asked the applicant to confirm when this incident occurred, he told me it was around 2005 to 2006. He told me he went to gaol the day after the incident where his neighbour fell and broke his neck and died. He said the police arrested him the following day.
When I asked whether the applicant was ever charged and appeared in court, he told me he was charged and he was convicted of murder. When I asked how it was that he spent only 3 to 6 months in prison for a murder, he told me the neighbour’s son withdrew the case out of revenge.
Upon asking whether the applicant had any contact with [Mr B or C] after the death of their father, he told me they confronted him after he was released from prison and they tried to kill him. He said he was able to escape.
The applicant told me that [Mr B and C] did not do anything against him until he married, however, after he married, they began threatening him. He told me he therefore went to live in another part of India. He said he first moved to Gurgaon in Haryana, and then went to Punjab, then in 2018 he came to Australia. He told me he worked on farms that were in the Gurgaon area. I put it to the applicant that his written application indicates that he did not move anywhere and asked him to explain this inconsistency. The applicant told me in 2013 he went to [Countries 1 and 2] to see these places and to seek protection. When I asked whether in fact, he sought protection when in [Countries 1 and 2], he said, “I did not meet anyone there and did not have any money.” I put it to the applicant that it appears he failed to seek protection in [Country 1 or 2], and that his failure to make reference to travel in his Form 866, and his failure to seek protection in [Country 1 or 2], undermines the credibility of his claim to fear serious imminent harm faced with the prospect of returning to India. He told me he was depressed and his brain was not working so he went back to India and then applied to come to Australia.
When I asked why he did not travel to some other part of India if he was worried about being seriously harmed in his home area, the applicant said they kept a watch on him, and he found big cities are daunting and he worked on farms. When I asked whether he thinks he could move and live in some other city, he told me, “No, never, because he is waiting at the airport to kill me. His sons are waiting.” I put it to him that I doubted that [Mr B and C] would be able to monitor all the airports in India. The applicant agreed, but then said that [Mr B] has a gang and they want to kill the applicant. When I asked for details of the gang, the applicant said it’s not that [Mr B] has people actually waiting at airports but he will be told by people who know if the applicant returns to India.
When I asked why he could not relocate to places like Delhi, Mumbai, Kolkata or Hyderabad, the applicant said he will always be living in fear and one day [Mr B] will get someone to kill him. He told me [Mr B and C] continue to live in the house they were living in before. He described it as being across the road from his family home. When I asked who lives in his family house now, he told me he is not in touch with anyone and then told me he does not know where [Mr B or C] live now, and he does not know where his family live either. He said he does not know because he has been in Australia for 6 years. He told me he has had no contact with his parents since he left India. He added that he has not had any contact with his sister, his wife, daughter and son, since he travelled to Australia.
When I asked when he was last threatened by [Mr B or C], he said after he returned to his home after being released from prison, they regularly threatened him. He said he reported the threats to police but they would not record his complaints. He said he went to the police 3 times but “the boys had paid them off” and the police wouldn’t take his complaints. When I asked whether he ever lodged a complaint against the police inaction, he told me “Everyone was involved and they paid off the senior police.” I put COI to the applicant reporting that while there is some corruption the police in India can also be effective and provide protection. The applicant said he is not claiming all the police are corrupt.
When I asked if there is any other reason why he fears harm if he returns to India, he said he cannot return because of the life he is leading in Australia. He then added that he will be killed if he returns to India. He said since he travelled to Australia in 2018, he has been safe. He subsequently told me “there might be” someone else who might harm him, however, the applicant did not provide any further detail.
When I asked why he applied for a visa to travel to the [Event], he told me he gave his passport to a friend to get a visa but he does not know anything about the visa.
Upon asking the applicant whether the neighbours approached his family for compensation, the applicant said, “They might have. They wanted money from me and then wanted to kill me.” When I asked if his family paid them anything, the applicant said, “they might have, but after this time I have forgotten.”
I asked the applicant whether his neighbours are related to him. He told me they are not. He told me he calls his neighbour his uncle out of respect but they are not actually related by blood.
When I asked the applicant why he travelled to Perth after arriving in Sydney, the applicant told me he went to the Gold Coast from India. He said he could have gone anywhere but his mind told him to come to Perth. He said he heard Perth was a beautiful place so he decided to come to Perth. I put it to the applicant that I found his story has many inconsistencies and improbabilities and I did not get an impression that he was fleeing his country in fear of his wellbeing or life. He then told me the person who obtained his visa had been to Perth 25 years ago and told him Perth is a beautiful place. The applicant also told me he went to Melbourne to find work but he could not find work so he came to Perth.
The applicant told me when he obtained work rights he began working on and off. He said he did [work tasks 1 and 2] jobs and now does [work task 3] where he works full time. He said he has [work detail] since he began working as [a work task 3].
When I asked what, if any, evidence the applicant has to support his claim that doctors were paid to kill his neighbour in hospital, he told me when he came out of gaol, he heard that people talked that the doctors could have saved him. He then conceded it is a rumour.
When I asked the applicant again when he was in prison, he told me he worked in Haryana and Punjab in 2012 and he calculated he was in prison in the period 2005 to 2007. Upon asking where he lived after his release from gaol, he said he stayed at his home for a few days but they started harassing him and so he left. He told me his brother was also killed.
The applicant told me that from 2007 until he left India to come to Australia he would move around and stayed in different places. He then referred to travelling to [Country 1] in 2013. As I found his response vague, I asked him to give detail. He said there are many places where he hid in Haryana and Punjab. He said they would find him and he would move on.
The applicant told me that someone who could locate him in Haryana and in Punjab could find him anywhere in India, including Delhi, Hyderabad, Kolkata or Mumbai.
Upon asking the applicant what work [Mr B and C] do in India, he told me he does not know. He added that their father is a farmer and then said [Mr B and C] also farmed. He told me they are involved in politics. I put it to the applicant that it appears he has not claimed before the Department that they are involved in politics and asked why not. The applicant replied saying, “If someone goes to the police and does not get investigated then they’re in politics.”
The applicant concluded that they attacked him 10 times and it was his good deeds in his past life that saved him otherwise God does not give you a second chance.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–5LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is owed protection obligations by Australia in accordance with the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for his or his. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
I have considered all of the applicant’s claims, individually and cumulatively, and I make the findings set out herein.
Credibility concerns
After carefully considering all the evidence before me, and after comparing the evidence in the applicant’s written Form 866 with the claims made at the hearing, I have concluded that a significant part of the applicant’s evidence and claims are not credible, and I have also concluded the applicant is not a truthful witness. I have found serious inconsistencies in his evidence given in his written claims made to the Department as contrasted with claims made at the hearing. I found his claims and assertions made before me at the hearing are tainted with unsupported speculation and surmise. I also find the applicant’s conduct, for example, remaining in India for at least 10 years after the relevant incidents and before coming to Australia, casts further doubt on the credibility of his claims, as does, for example, his failure to seek protection when he travelled to [Countries 1 and 2] in 2013. I also found that a number of the applicant’s responses given at hearing appeared rehearsed and/or evasive and I formed the view that the applicant has largely concocted his claims and ultimately, I conclude he is not in need of non-refoulement protection based on his claims asserted to the Department, and to this Tribunal. I will now set out my detailed findings and reasons why I have decided to affirm the decision in this appeal.
Receiving country
Notwithstanding my expressed concerns set out in the preceding paragraph regarding the credibility of the applicant’s claims and evidence, I accept the applicant’s objective evidence in the form of a photocopy of the biodata page from his passport is credible. I find no evidence to suggest the applicant’s passport is tainted by fraud and find the applicant is a citizen of India and that he has no right to enter or reside in any other country. I find the receiving country for the purpose of assessing his protection claims is therefore India.
Does the applicant face a real chance of ‘serious harm’ – s 36(2)(a) of the Act?
Notwithstanding my unfavourable assessment of the applicant’s credit and credibility as a witness, I will extend the benefit of the doubt to him, and for the sake of assessing his claims at their highest, I proceed by accepting he was involved in a dispute and fight with his neighbours who lived across the street from his home in Haryana. I also accept that as a result of the dispute and fight which the applicant claims occurred sometime around 2005 to 2007, his neighbour [Mr A] fell and sustained a neck injury. I continue extending the benefit of the doubt and accept that [Mr A] was admitted to hospital but died within a short time of being so admitted. I accept that the applicant was detained by the police on the following day and that he was thereafter held in custody for 3 to 6 months before being released.
Having regard to all the evidence before me, I find nothing in the material before me suggests that the applicant is a person who is wanted by the police in India in relation to the death of [Mr A], or for any other reasons. Based on the evidence, I am also satisfied the evidence does not demonstrate, and indeed does not even suggest, that the applicant faces arrest or any risk of harm at the hands of the authorities in India if he returns to that country now or in the reasonably foreseeable future as a result of his neighbour’s death, or for any other reasons.
I now turn to the applicant’s primary claim where he asserts that he faces a real chance of serious harm as defined in s 5J(5) of the Act from [Mr A]’s sons, namely [Mr B and C]. For all the reasons set out in this decision, in particular in light of the following findings, I reject the applicant’s proposition where he asserts that he faces a real chance of ‘serious harm’ from [Mr A]’s sons:
a)Even if [Mr A]’s sons continue to be angry over their father’s death, and even if they continue to hold the view that the applicant was responsible for the death, I find the sons’ past conduct apropos the applicant is inconsistent with a conclusion that they hold a genuine intention to cause him serious harm or death. For example, the applicant claims he was arrested and detained the day after the incident in 2005– 2006, spent 3 to 6 months in gaol, and was then released and returned to live in his home across the road from [Mr A]’s sons. I find the claim that he returned to live across the road from the sons, in circumstances where he asserts that they sought revenge and intended to seriously harm or to kill him is quite inconsistent with the conduct of a person who holds a genuine fear of serious harm. Nor was I persuaded that [Mr A]’s sons only began their adverse interest in the applicant after the applicant married in 2007 as the applicant provided no credible or plausible explanation for this. I found the applicant’s claim that the adverse interest in him began only after he married in 2007 makes little sense and this is a further example of the muddled claims and fabricated claims.
b)I considered the applicant’s claim where he asserts that [Mr A] was admitted to hospital where the doctors were paid to administer the wrong medicine leading to [Mr A]’s death. The applicant provided absolutely no credible evidence to support this contention. When I asked at the hearing what evidence he had to support this claim. the best he was able to muster to support the claim of foul play in the hospital was that he had heard that they (the hospital or doctors) could have saved [Mr A]. I do not accept that such speculation justifies a conclusion that [Mr A] was killed as a result of the administration of incorrect medication. In any event, if it was the case that [Mr A] was killed by doctors, then I find that further undermines the credibility of his claim that [Mr A]’s sons would have an adverse interest in the applicant since according to the applicant it is [Mr A]’s sons who purportedly paid the hospital to kill their father through “wrong medicine”.
c)In relation to the claim where the applicant asserts [Mr A]’s sons began blackmailing his family to pay them money, I find his evidence on this is confused and inconsistent and indicative of a concocted claim. For example, when I asked the applicant at the hearing whether the neighbours approached his family for compensation, the applicant said, “They might have. They wanted money from me and then wanted to kill me.” I find this is in contrast to the clear claim made in his Form 866 where the applicant declares “their family started to blackmail us to pay money.” When I asked if his family paid them anything, the applicant said, “They might have, but after this time I have forgotten.” I do not accept as credible the proposition that the applicant could only speculate at the hearing about whether his family were blackmailed. Nor do I accept as credible that he would not know as a certainty that they had been blackmailed, if they had in fact been blackmailed. I have considered this in light of his written claim, which he referred to in the hearing as being correct, that in the beginning his family did not agree to pay the money because the fight was not that serious to kill a person, but that after the neighbours lodged a First Information Report and threatened the applicant’s family, the applicant’s father decided to compromise and they paid money. I find such an inconsistency to be very significant and do not accept his explanation that he has forgotten such significant facts due to the passage of some years.
d)In relation to the applicant’s claim where in his Form 866, and also in his sworn oral claims made at the hearing where he claims his neighbours paid money to the authorities not to take action against them, I find the applicant offered no credible evidence to support this assertion. At the hearing the applicant made vague and general assertions suggesting that [Mr A]’s sons are somehow involved in politics and are therefore powerful and influential and can influence the Indian police service not to perform its law enforcement functions. Although I accept that some COI reports on the existence of a degree of corruption within the Indian police service, I am not persuaded in all the circumstances of this case that [Mr A]’s sons were or are able to influence the police in the relevant area not to act on complaints made by the applicant. A further question arises from this and that is if [Mr A]’s sons were so powerful or influential then it might be asked why they could not have influenced the police to continue detaining the applicant rather than permitting his release after a brief 3- or 6-month period. Even more significant, the evidence before me indicates the applicant was able to continue living in India from the time of the death of [Mr A] in around 2005 or 2006 until January 2018 without being seriously harmed, or killed, or arrested. Based on the evidence before me, I find these circumstances indicate that [Mr A]’s sons did not have an ongoing adverse interest in the applicant.
e)In his Form 866 the applicant claims he did not relocate to other parts of India and offers the explanation that he did not relocate because he had to go to the police station “for reporting”. However at the hearing he told me he in fact moved to work on farms in Gurgaon and in Punjab. He appeared to indicate that he was on the run when at the hearing he claimed that from 2007 until he left India to come to Australia he would move around and stayed in different places because “they” would find him and he would move on. I find this claim quite at odds with the claim in the Form 866 where he declares he did not move or try to move within India. I formed the view at the hearing when he was answering these questions that he was making up the responses as he went. I do not accept the applicant was on the run as he suggests, and do not accept he moved or relocated within his country to avoid the claimed risk of harm from his claimed enemies.
f)I have considered the applicant’s claim where he asserts that he was assaulted several time by his claimed enemies. At the hearing he claimed he was assaulted 10 times and that it was good fortune which spared him. Having regard to my assessment of the unreliability of the applicant’s evidence and his unreliability as a witness of truth, I do not accept the applicant was in fact attacked as claimed, and find he suffered no serious harm at any time in the approximately 10 years before leaving to come to Australia in 2018. There is nothing in the evidence before me to indicate the applicant was in fact in hiding or seeking to avoid his claimed enemies. I find the evidence before me suggest that [Mr A]’s sons did have opportunities to seriously harm or to kill the applicant had that been their intention. I find the fact that [Mr A]’s sons have not inflicted any serious harm upon the applicant in all the circumstances is a further example of why the applicant’s claims are not credible and why he does not face a real chance of serious harm now or in the reasonably foreseeable future if he returns to India.
g)I considered the applicant’s claim made at the hearing where he told me he did not commit the murder and that [Mr A]’s son kept the applicant tied up in a small room for many days after the father died. I do not believe this claim and reject it as a further fabrication concocted for the purposes of bolstering the applicant’s protection claims. In particular, I note the applicant made no reference to this purported mistreatment in his claims made to the delegate. Furthermore, the applicant asserted he was arrested and imprisoned for 3 to 6 months on the day after the relevant incident where [Mr A] fell. I reject this claim based on its late introduction, and also based on the temporal inconsistency, that is the applicant’s apparent assertion that it occurred when he also claims he was being held in gaol. By reference to all the evidence before me, and on the basis of the unreliability of the applicant as a witness, I reject as not credible the applicant’s claim made at the hearing that [Mr A]’s sons confronted him after he was released from prison and they tried to kill him but he escaped. Having regard to his claim that [Mr A]’s sons are so powerful and influential and so determined to seriously harm him, I am not convinced the applicant would have been able to evade serious harm or death at the relevant time, or at other times in almost 10 years while he remained in India, had [Mr A]’s sons actually had an intention to seriously harm the applicant.
h)I have considered the applicant’s claim where he told me at the hearing that he has not been in contact with his wife for 6 years since he came to Australia, and he told me he is not divorced. I proceed by accepting this claim however, I find nothing in the evidence to suggest that the applicant’s wife or his [children], or the rest of his family, have been targeted for any harm by the applicant’s claimed enemies.
i)I have considered the applicant’s claim made at the hearing where he submitted his brother was also killed. I accept the applicant contends that the reason why his brother was killed is related to the applicant’s circumstances and in particular the applicant’s involvement with the death of [Mr A]. However, I find the applicant provided no credible or persuasive evidence to demonstrate that his brother’s death, even if I accept it occurred, has anything to do with the applicant. Turning to the reasonably foreseeable future, and based on the evidence before me, I reject the assertion that the death of the applicant’s brother gives rise, of itself or when coupled with all the evidence, to the applicant facing a real chance of serious harm from [Mr A]’s sons, or anyone else, if the applicant is returned to India.
j)I have considered the applicant’s claim that he travelled to [Countries 1 and 2] in around 2013. Although his claim in relation to this was somewhat vague, I accept he confirmed the travel to [Countries 1 and 2] occurred after his imprisonment, and therefore after the death of [Mr A]. I find the fact that he did not seek protection in either of these countries but returned to India to face the claimed risk, further undermines the credibility of the applicant’s assertion where he contends that he faces a real chance of serious harm faced with the prospect of returning to India. I reject the proposition advanced by the applicant where he told me he went to [Countries 1 and 2] “to see these places and to seek protection”. I also reject the proposition that the reason why he did not, or could not, seek protection was because he “did not meet anyone there and did not have any money.”
k)I have considered the applicant’s claim where he told me at the hearing that he was charged and convicted of murder and that he spent only 3 to 6 months in prison for the crime of murder. Based on my overall assessment of the unreliability of the applicant as a witness, I do not accept that he was released after being convicted of murder only after 3 to 6 months on the action of [Mr A]’s sons who “withdrew the case out of revenge.”
l)I have considered the applicant’s response on the question of why he did not travel to some other part of India if he was worried about being harmed in his home area. I found his response to this quite unbelievable in all the circumstances of this case. In particular, he told me “they”, that is [Mr A]’s sons, or persons associated with them, kept a watch on him. He also told me big cities are daunting and he worked on farms. He then made the claim that he could not relocate because someone is waiting at the airport to kill him, only to retract this and to assert that [Mr A]’s sons’ people would know if the applicant returns to India. I reject these propositions as fabricated and without basis and find they further bring discredit to the applicant’s reliability as a witness.
m)I have considered the applicant’s claim where he told me at the hearing that he was regularly threatened by [Mr A]’s sons after he was released from prison. Based on my assessment of the unreliability of the applicant’s claims and evidence, I am not persuaded that the applicant reported the threats to police 3 times but they would not record his complaints. I find the applicant has not provided any credible or persuasive evidence or argument to support that [Mr A]’s sons would have been able to bribe the police not to act on the applicant’s complaints. While I accept that some COI reports on corruption in the police service in India, in the circumstances of this case, and having regard to all the evidence including the applicant’s claimed detention for 3 to 6 months, and his release, I do not find it is justified or reasonable to give the applicant the benefit of the doubt on this point.
n)I have considered the applicant’s claim made at the hearing where he told me “there might be” someone else in India who might want to harm him. I find the applicant gave no detail about this and I conclude this claim is simply unsupported speculation and surmise without credibility or merit. I do not accept his proposition that there is a real chance that he will be killed if he returns to India and find there is no credible basis whatsoever to support the proposition that the applicant faces a real chance of ‘serious harm’ if he is returned to India.

As I have found the applicant does not face a real chance of harm of any kind from [Mr A]’s sons, or from anyone else, now or in the reasonably foreseeable future if he returns to any area in the receiving country of India, I find it is not necessary to consider or to make further findings on whether the applicant has access to effective protection measures in India.
Based on the evidence before me, I am satisfied that there is not a real chance of serious harm amounting to persecution relating to all areas of the receiving country in this case. It is therefore not necessary for me to consider whether the applicant has viable and reasonable internal relocation options available to him.
For all the foregoing reasons and findings, I find the applicant does not face a real chance of ‘serious harm’ as that term is defined in s 5J(5) of the Act. I therefore find the applicant does not satisfy s 36(2)(a) of the Act.
Does the applicant face a real risk of significant harm – s 36(2)(aa) of the Act?
As I have found the applicant does not meet the criterion in s 36(2)(a) of the Act for refugee protection, I must consider whether the applicant meets the criterion pursuant to s 36(2)(aa) for ‘complementary protection’.
Section 36(2A) of the Act provides that a non-citizen suffers significant harm if:
(a)the non-citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non-citizen; or
(c)the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
I have considered all the evidence and claims before me and have discussed my assessment of whether there is a real chance of the applicant being harmed in any way for the reasons claimed if he is removed to India. As discussed in the preceding paragraphs, I find there is not a real chance of the applicant being harmed in any serious way for any of the reasons advanced in his claims. For the same reasons, I find there is no real risk the applicant will suffer ‘significant harm’ on any basis identified or cognisable if he is removed from Australia to India. In particular, I reject the proposition that the evidence before me indicates the applicant’s claimed enemies, namely his neighbour [Mr A]’s sons, or anyone associated with them, or anyone else would harm him in any way specified in s 36(2A) of the Act.
The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’. I have considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, there is a real risk that the applicant will suffer ‘significant harm’ as that term is defined in the Act. Having considered all the claims, circumstances and findings individually and cumulatively, I find that as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is no real risk that the applicant will suffer significant harm at the hands of his claimed enemies or anyone else as claimed pursuant to s 36(2)(aa) of the Act.
Conclusions
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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 any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tony Caravella
Member

ATTACHMENT – Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 3445

23 May 2024

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