1900773 (Refugee)

1900773 (Refugee) [2024] AATA 4157 (26 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1900773
COUNTRY OF REFERENCE: India
MEMBER:Phillippa Wearne
DATE:26 July 2024
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 July 2024 at 10:56am
CATCHWORDS
REFUGEE – Protection Visa – India – fears the lobby group led by [Mr A] and the CPIM members – illegal sand mining – did not appear to have a subjective fear of returning to India – applicant had provided conflicting, inconsistent information – delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution –credibility concerns –– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a [age]-year-old national of India.[1] He arrived in Australia on [date] March 2018 as the holder of a Tourist Stream (Subclass 600) visa and lodged an application for a protection visa on 23 April 2018.
[1] Copies of the biodata pages of the applicant’s Indian passport are held on the Department file
On 7 January 2019, a delegate for the Minister of Home Affairs refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
CLAIMS AND EVIDENCE
Protection visa application
The applicant states he was born in [Trivandrum], Kerala and is a Catholic. He speaks, reads and writes English and Malayalam.
In India, he resided in Trivandrum and Chennai.
He completed 12 years of schooling in 1992 and then studied at college (1993–1995) without completing a degree. He later studied [a course] from 2006–2007. All education was undertaken in Trivandrum.
He married in January 2008 and has 2 daughters.
The applicant also set out the years during which he lived and worked in [Country 1], [COUNTRY 2]and [Country 3] before leaving India for Australia in March 2018.
The applicant attached a statement of claims to his application for protection. Those claims are summarised below:
·During college life the applicant was influenced by the secular, democratic and anti-capitalistic principles of the Communist Party of India (Marxist) (CPIM).
·From 1998 until 2005, the applicant was employed in [COUNTRY 2] in [City 1] supporting his family. After returning to Kerala in 2005, he became involved in political activities. At that time, illegal sand mining was being conducted by a group of local people under the leadership of a fraud named [Mr A]. With [Mr A]’s money and political support, this group mined significantly, which led to water scarcity and environmental problems.
·In 2005, [Mr A] threatened the applicant when he approached him about the environmental consequences of sand mining. The applicant raised this matter with the CPIM local committee, but they were influenced by [Mr A] and refused to listen to him. The applicant lost trust in the CPIM party after this.
·Later the applicant proceeded with these environmental activities with one of his dear friends, [Mr B] . They started to raise awareness amongst local people about drinking, drug abuse and environmental problems that they had to face in the future, and they gathered a group to protest.
·The Indian National Congress (INC) leaders offered their help with this issue, asking in return for the group’s support in [a state] Election which they agreed to do. The INC requested that the candidate should come from their group. They appointed [name] as the candidate in 2006 and she won. This provoked the CPIM leaders and the sand mafia group.
·In 2012, their group started agitation under the leadership of Father [C] of [a] Parish about the illegal construction of [a] resort in [Kerala]. In March 2013, with the help of the CPIM and the mafia group, local goons killed his friend [Mr B]. The applicant thought he might be their next target.
·The goons hired by the Resort group attacked the applicant’s group with ‘native bombs’ and the applicant narrowly escaped a bomb blast.
·In the meantime, the applicant left [Country 1] and planned to settle in any European country with his family. He was scared to live in his hometown and stayed in different parts of India.
·He obtained a [visa] and travelled there in 2015 without his wife but returned to India in June 2017. It was the real time to fear staying in India, so he came to Australia to secure his life. He is the only breadwinner for his family.
·The CPIM is in power in Kerala, so the applicant fears to stay in India.
The interview
The applicant attended a protection visa interview with a Departmental officer on 13 December 2018.[2] I have listened to this interview.
[2] A recording of the 1 hour and 25-minute interview is held on the Department file
Additional evidence provided by the applicant during the Departmental interview on 13 December 2018 is summarised by the delegate as follows[3]:
·The applicant lived in [COUNTRY 2] from 1998 to 2005, [Country 1] from 2007 to 2015, Europe [from] 2015 to July 2017. When he returned from [City 1] in 2005, he lived temporarily in Chennai.
·He is not the member of any political party but belongs to a group of people who were against the lobby group led by [Mr A]. The applicant was involved with his group only during his holidays on return to India.
·His friend, [Mr B] , was killed in 2012 or 2013.
·The applicant was attacked by a local goon paid by [Mr A] during the Christmas holidays in 2013 or 2014.
·The applicant fears the lobby group led by [Mr A] and the CPIM members.
[3] Decision record p 2
During the interview, the applicant submitted copies of: a certificate of competency as an [Occupation 1] issued in [City 1] dated June 1998; a letter of employment issued by [company], [City 1] indicating he worked there as an [Occupation 1] from February 2000 until May 2005; a letter of employment issued by [a company], [Country 1] indicating he worked there from June 2007 until April 2015; a Government of India Income Tax Department card issued in the applicant’s name; an identity card; a Certificate of Marriage issued by the Kerala Registration of Marriages on 10 August 2009, and a photograph of the applicant and his family.
The delegate’s decision record
After considering the evidence, the delegate found that the applicant was not a credible witness and was not satisfied that the applicant faced a real chance of persecution in India in the reasonably foreseeable future for reasons of his political opinion or for any other reason. The delegate was also not satisfied that there was a real risk that the applicant would suffer significant harm for the reasons he claimed, if he were to return to India.
The applicant submitted a copy of the delegate’s decision record with the application for review.
The review application
On 11 January 2019 the applicant applied to the Tribunal for a review of the delegate’s decision.
The hearing
The applicant appeared before the Tribunal on 11 July 2024 to give evidence and present arguments. An interpreter in the Malayalam language assisted the Tribunal.
I explained the purpose of the hearing and that it was the applicant’s opportunity to provide his claims, present arguments and evidence. I asked the applicant to be as detailed and as honest as possible in his responses.
The applicant was given the opportunity to raise anything he wished to regarding the hearing or his claims for protection before I commenced to ask questions about his application. He said that he did not wish to say anything.
Where relevant, the applicant’s oral evidence at the hearing is referred to in the analysis below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Country information
Illegal sand mining is an environmental concern, and it is banned in most parts of Kerala but continues secretly due to high demand from the construction industry.[4] Illegal sand mining brings adverse environmental impacts, including river degradation, erosion, ecosystem disruption, hydrological effects and coastal deterioration.[5] The Kerala government attempted to address the issue by banning mining in six rivers for three years in 2015. However, enforcement remains a challenge, and there are allegations of corruption involving private companies and government officials in illegal mining activities.[6]
[4] SAND MINING IN KERALA – WIKIPEDIA – ACCESSED 10 JULY 2024
[5] Sand mining in Kerala – Wikipedia – accessed 10 July 2024; The saga of Kerala's rare mineral sand, corruption and coast deterioration Hindustan Times, 10 April 2024, KA Saji – accessed 10 July 2024; interrogating the effects of sand mining: a case study of Agila District, Ado local government area, Benue State, Nigeria -Vol. 7 No. 4 (2023): FUDMA Journal of Sciences - Vol. 7 No. 4 – accessed 10 July 2024
[6] The saga of Kerala's rare mineral sand, corruption and coast deterioration Hindustan Times, 10 April 2024, KA Saji – accessed 10 July 2024
There are reports of some illegal construction and violations of coastal regulation zone norms at the Lake Palace resort at Kadinamkulam, Trivandrum[7]. Although some steps have been taken to regularise the illegal construction there the current situation is unclear.[8]
[7] Lake Palace pays ₹34 lakh as fine, The Hindu – 13 July 2019 – accessed 26 July 2024
[8] Resort submits application to regularise buildings, The Hindu – accessed 10 July 2024
The Left Democratic Front is an alliance of left-wing political parties led by CPIM in the Indian state of Kerala. It has been the ruling political alliance of Kerala since 2016.[9]
Analysis, reasons and findings
[9] Communist Party India (Marxist), Kerala – Wikipedia – accessed 10 July 2024
For the following reasons, I have concluded that the decision under review should be affirmed.
Preparation of the protection visa application, education, family circumstances and residences since coming to Australia
The applicant told me that he prepared the protection visa application himself, including the typed statement of claims.
He had 12 years of schooling and completed a [diploma]. He started but did not complete a [degree] from 1993–1995. From 2006–2007 he completed a [diploma].
He confirmed that his wife and 2 daughters (aged[age] and [age]) continue to reside in Trivandrum with her parents. His wife is a [occupation]. The applicant’s mother died in 2012, his father in 2007 or 2008.
The applicant agreed that he was sending money back to his family in India. He said that he rings them every day.
The applicant detailed all his residential addresses since coming to Australia.
In the absence of any evidence to the contrary, I accept the applicant’s evidence about preparing the protection visa application himself, his education, the death of his parents, his daily contact with his wife and children, their living circumstances and his residences since coming to Australia.
Employment since coming to Australia – visa cancellation
The applicant told me that within 2–3 weeks of arriving in Australia in March 2018, he began working [at] a [workplace] in [a suburb]. However, police raided the [workplace] one evening and it closed. The Department investigated his circumstances. Because he was not meant to be working according to the conditions of his Subclass 600 visa, his visa was cancelled.[10]
[10] The decision record states, and Departmental records confirm that the applicant’s Subclass 600 visa was cancelled on 24 April 2018
Following his application for a protection visa, the applicant worked for a[company] for about 2 years. Then, after completing a [qualification] at a private college, he secured a job in [a workplace] where he has been working for over 3 years. He is settled in this employment.
In the absence of any evidence to the contrary, I accept the applicant’s evidence about how his Subclass 600 visa came to be cancelled and his subsequent work and study in Australia.
Applicant’s work before coming to Australia
The applicant was absent from India for many years between 1998–2017, working in other countries. During the hearing the applicant discussed his training and employment as an [Occupation 1] in India and [COUNTRY 2], his work in [a field] in [Country 1] and his work in [Country 3] as a [occupation].
In the absence of evidence to the contrary I accept that since 1998, the applicant was frequently absent from India and worked in these different positions in these different countries.
No new claims for protection
The applicant confirmed that he did not wish to add to claims already set out in the protection visa application or expressed during the Department interview.
Fear of harm in returning to India
At the beginning of the hearing, I had explained to the applicant that I would be asking the applicant about the future: what would happen to the applicant if he returned to India?
Later when I asked the applicant what he feared if he was to return to India, he said that he had ‘no idea’. He said he did not know at the moment. He said ‘maybe there is a fear?’, and that it had just been a ‘local issue…not a big issue’. He said that he could ‘see that now’. His mother had been concerned and had pushed him to go away.
He added that he was not able to say what would happen in the future because he has been in Australia a very long time. He isn’t in contact with his friends in India, so he doesn’t know what is going on there. His wife does not know what is going on with the issues that he had in India. She is busy working and looking after the children. He does not know the extent of a threat that there may be in India. He said that he’d never told his wife that he had applied for a protection visa in Australia. She thought that he had come to work in Australia.
I observed to him that he did not appear to have a subjective fear of returning to India.
The applicant gave unprompted and naturally flowing evidence that he has not requested updating information from friends about the issues he claims to have been involved with in India, and that he has not told his wife about his application for protection. I accept his evidence.
Plans in Australia
The applicant said that he came to Australia, and he’s now been here 6 years. He has a job here. He feels settled. He doesn’t have any bad marks against his character or his career, but he doesn’t have his family with him. This is a concern to him. He said he would be grateful if he could get the visa as he wants to bring his family here.
I accept that the applicant feels settled in Australia and wants to bring his family here to join him.
Concerns about the applicant’s claims for protection
I explained to the applicant that so much time has passed since the claimed events took place in India. For example, it was 19 years since he claimed to have approached [Mr A] about the illegal sand mining. It was over 14 years since the claimed protests against illegal construction at the Resort and the death of his friend, [Mr B]. These very long lapses of time could indicate the claimed issues affecting the applicant had been left in the past and were no longer of concern.
I also noted that in his written claims he stated that it had been ‘the real time to fear staying in India, so he came to Australia’. However, despite the immediacy of claimed harm, he had delayed leaving India for almost a month after being granted a visa to visit Australia.[11] The circumstances and the delay in the applicant applying for protection in Australia are also concerning. He had delayed applying for protection for over one month after arriving in Australia and in the meantime had been caught working in violation of his visitor visa conditions and his visa was cancelled.
[11] The business visitor visa was granted on 7 February 2018 and the applicant arrived in Australia on [date] March 2018, decision record p 1, confirmed by Departmental Movement records
I also reminded the applicant of the delegate’s concerns about his evidence about his claims for protection, which had been set out in the decision record, regarding his international travel and residence in India, political activities in 2012/2013, [Mr B]’s death and the attack from a local goon. I summarised these concerns (discussed below) and noted that I had listened to the recording of the interview and shared these concerns.

Responding to my concerns, the applicant said that what was in the protection visa application was ‘true’. He said that he knows very well that what happened in India wasn’t a big issue. But his mother had been forcing him to leave India because she feared for his life. This is why he had gone to live in lots of different countries.
Does the applicant have a well-founded fear of persecution?
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. This involves assessing the credibility of the applicant’s claims. I accept that the benefit of the doubt should be given to people seeking protection who are generally credible but unable to substantiate all their claims. If I make an adverse finding in relation to a material claim made by the applicant, but I’m unable to make that finding with confidence, I must proceed to assess the claim on the basis that it might possibly be true. However, I’m not required to accept uncritically any, or all of the allegations made by an applicant. Further, I’m not required to have rebutting evidence available to me before I can find that a particular factual assertion by an applicant has not been made out.
I have significant concerns about the applicant’s evidence in his claims for protection, which are set out below.
In his application for his visa to visit Australia the applicant stated that he worked and resided in Chennai.[12] However, in his protection visa application he provided substantially conflicting information to that about where he had been located, claiming mostly to have worked and resided outside of India for the period 1998 to 2017. In the protection visa application form, his residential history was provided as follows: [date] January 1998–[date] March 2005, [City 1], [COUNTRY 2]; [date] April 2005–[date] July 2007, Trivandrum, Kerala; [date] July 2007–[date] May 2014, [Country 1]; [date] May 2014–[date] September 2015, Trivandrum, Kerala, [date] September 2015–[date] July 2017, [Country 3]; [date] July 2017–3 March 2018, ‘different part[s] of India’. With his protection visa application, he also provided copies of a letter of competency and letters from employers in [COUNTRY 2] and [Country 1] that support his claims of employment in [COUNTRY 2] and [Country 1] during those years. Given that the applicant, in the current application, has been consistent in claims that he did so, I accept that the applicant has spent long periods of time away from India before he last left there in 2018. His other claim to have been working and residing in Chennai for the purposes of the visa to visit Australia indicates to me that he is prepared to fabricate claims to suit the particular visa application he is making, if he considered that would assist him to succeed in securing that visa. I consider that this dishonesty reflects adversely on his credibility generally in regard to his claims for protection.
[12] Department decision p 1 and 3
In his statement of claims, the applicant claimed to be part of a local group under the leadership of Father [C], that had protested against illegal construction at the Resort in Trivandrum in 2012. He claimed that this protest activity had led to the brutal murder of his friend, [Mr B], in March 2013. However, during the interview, the applicant initially indicated that these events had occurred in 2010. When asked to provide details about the group he was part of, including its name, number of members and the nature of the work done by it, he said it had been a small group of people like a gang, which did not have any name or official members. When asked about his specific involvement with the group, the applicant said that he was only active in the group when he returned to India on holidays because he was otherwise employed overseas. However, in his protection visa application form, the applicant claimed to have been working and residing in [Country 1] during this same period. Further, in his interview evidence the applicant claimed that he was primarily residing elsewhere in India, in Chennai and other parts of India, during vacations. I consider that the applicant’s evidence about where he was located when involved with the group is contradictory. I also consider that his evidence about the group that he claimed to have formed and belonged to was evasive and lacking in meaningful detail. I don’t accept that the applicant was ever involved individually, or with the group under leadership of Father [C], or any other group protesting against illegal construction at the Resort in Trivandrum.
In his statement of claims the applicant claimed that local goons, supported by the CPIM, murdered [Mr B] in March 2013 and that he considered himself to be the ‘next target’. However, during the Departmental interview, the applicant initially indicated that this protest activity that culminated in the murder of [Mr B] had taken place in 2010. He subsequently stated that [Mr B] was killed in 2012 or 2013. When pressed for further details, the applicant said that he had not actually witnessed [Mr B]’s death as he'd been overseas at the time. Later during the interview, the applicant claimed that when [Mr B] had been killed, he had attended the police station. However, the delegate noted that the applicant had previously claimed that he wasn’t in India when [Mr B] was killed. Given that, the applicant was asked when he had gone to the police; he said that he’d gone at Christmas 2013, about 9–10 months after [Mr B]'s death. When queried about this long lapse of time, the applicant had said that he visited the police station to express his feelings as the police inquiry was going in a ‘different direction’ than he would have expected. I consider the applicant’s evidence about [Mr B]’s death to be inconsistent, evasive and lacking in the detail that I would expect regarding the death of a ‘dear friend’ as he had described [Mr B] to be. I don’t accept that [Mr B] was murdered by a local goon or goons, or anyone instructed to do so by the CPIM, or that the applicant went to the police in regard to the investigation of the death. It follows that I don’t accept that the applicant considered himself to be the ‘next target’.
In his statement of claims, the applicant claimed that after returning to India after his stay in [Country 1] in May 2014, he was so scared to live in his hometown (Trivandrum) that he wandered around and stayed in different parts of India. However, in the protection application form he claimed that he lived in Trivandrum for over 4 months. I consider that these two claims are inconsistent, and so I don’t accept the claim that the applicant was too scared to live in his hometown after returning to India from [Country 1].
During the Departmental interview, when asked if he had lived anywhere else in India apart from Trivandrum, the applicant said that he had also lived in Chennai. He initially indicated that he had lived there for 1–2 years after returning to India from [City 1] in 2005. He then said that he had lived in Chennai after returning from [City 1] in 2005 until he travelled to [Country 1] for work in 2007, which is inconsistent with his claims to have completed a diploma in Trivandrum during this period. The applicant also indicated that he had lived in Chennai whenever he returned to India for holidays from 2007 to 2014. However, he claimed later in the interview that whenever he returned on holidays from [City 1] and [Country 1] he moved around in different places and didn’t stay in Trivandrum. When asked to clarify what other places he had resided in, he claimed that he had temporarily stayed in [various places]. Further, during the interview, the applicant initially claimed he had not been back to Trivandrum since [Mr B]’s death in 2012 or 2013. However, when it was put to the applicant that the departure stamp on his passport indicated that he had exited India from Trivandrum in March 2018, he then said that he had continued to return to his hometown of Trivandrum during holidays from overseas, but also claimed that he also went to Chennai a few times. The applicant had also claimed to have resided in [Country 3] for a few months. However, when it was pointed out to him that he had elsewhere claimed to have resided in [Country 3] from [date] September 2015 to [date] July 2017, he agreed that he had stayed for this longer period and added that he had also resided in [a country] during this time.[13] I consider that the applicant has given inconsistent and conflicting evidence about where he stayed in India and this reflects adversely on his credibility generally in regard to his claims for protection. .
[13] Decision record, p 4
In the statement of claims, the applicant had claimed that the Resort group hired ‘goons’ and attacked him and that he had also narrowly escaped a bomb blast. However, during the interview, the applicant’s account of being attacked by ‘a goon’ lacked meaningful detail. He could not remember when the attack took place. When queried why he could not recall this significant event, he said that it had been during Christmas holidays in 2013 or 2014. Despite being pressed for details, the applicant was unable to provide any. Given this and my concerns about the creditability of his other claims for protection, I don’t accept the applicant’s claim that he was attacked by a goon or goons hired by the Resort group, or any goon or goons in 2013 or 2014.
I have already expressed my concerns about the applicant’s delay in leaving India after his visa to Australia was granted. Given this delay and the circumstances in which the applicant applied for protection in Australia, and all my other concerns set out above, I do not accept that the applicant is credible in his claims for protection.
Specifically, I don’t accept that the applicant became politically active in 2005 and later protested in a group (or as an individual) against illegal sand mining taking place in Kerala, or that he tried to stop [Mr A] or anyone else doing that. It follows that I don’t accept that, in response, he was threatened by [Mr A] (or anyone else), or that he requested support for his protests with the local CPIM committee. Country information set out above indicates that there has been illegal construction at the Lake Palace Resort at Kadinamkulam. However, I don’t accept that the applicant agitated against this individually or through a group led by Father [C] in 2012 or at any other time, or through any other group. I don’t accept that the applicant’s friend, [Mr B], was murdered in 2012 or 2013 because of this protest activity or that the applicant believed that he was the next target. I do not accept that the applicant narrowly escaped a bomb blast in 2012 or 2013, or at any time. I don’t accept that the applicant’s mother (who I have already accepted died in 2012) forced him to leave India because she feared for his life. I don’t accept that the applicant fears to return to India because the CPIM is in power in Kerala. I don’t accept that the applicant has a subjective fear of harm for the reasons he claims in returning to India, and there is no objective basis for a fear of harm, for the reasons he claims.
Given all the above, I am not satisfied that there is a real chance the applicant will suffer serious harm for any reason set out in s 5J(1)(a) if he returns to India. I am not satisfied there is a real chance he will suffer serious harm for any of the reasons claimed, or for any other reason if he returns to India. Accordingly, I am not satisfied he has a well-founded fear of persecution. I am therefore, not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Does the applicant meet the complementary protection criteria?
I have found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act. I have considered whether he may nevertheless meet the criterion for the grant of a protection visa under the complementary protection criterion.
As set out above, the applicant claims that he may be harmed by [Mr A] or his sand mining mafia group against whom he protested and whom he was threatened by in 2005. He also claims to fear harm by goons endorsed by the CPIM because he agitated within a group against illegal construction in the Resort in Kerala. Given country information available, I accept that illegal sand mining has been a problem in Kerala. I also accept that there is evidence of illegal construction at that Resort. However, as noted above in detail, I have not accepted that the applicant became politically active in 2005 or was later involved in any of these protest activities, or that he has ever be threatened or harmed by those he claims have threatened harm or harmed him. I don’t accept that any harm from those he claims to fear harm from awaits the applicant if he was to return to India.
Accordingly, on the evidence before me, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm. Therefore, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Phillippa Wearne
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 4157

26 July 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction