1900859 (Refugee)

1900859 (Refugee) [2024] AATA 3807 (7 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1900859
COUNTRY OF REFERENCE:                   India
MEMBER:Jane Marquard
DATE:7 August 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 07 August 2024 at 12:32pm
CATCHWORDS
REFUGEE – protection visa – India – political opinion – local leader of ethnic/political organisation – scheduled caste and quotas for education and employment – arrested and beaten, and house attacked by hooligans supporting ruling party – inconsistent claims and evidence, only basic knowledge of organisation and no corroborative material – supporter but not leader – blurring of details of similar incidents – country information – organisation founder now member of ruling party and organisation not currently active – delays in review process – Australian-born child not an applicant – possibility of applying for ministerial consideration – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 417
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
AVQ15 v MIBP [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
Chen Ru Mei v MIEA (1995) 58 FCR 96
MIAC v Khadgi (2010) 190 FCR 248
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
Mok Gek Bouy v MILGEA (1993) 47 FCR 1
Nejad v MIMA [1999] FCA 1827
Randhawa v MILGEA (1994) 52 FCR 437
Re MIMA; ex parte Applicant S20/2002 [2003] HCA 30
Sivalingam v MIMA [1998] FCA 1167
Sundararaj v MIMA [1999] FCA 76
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

The applicants have sought review of a decision made by a delegate of the Minister for Home Affairs on 11 January 2019 to refuse to grant them protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND TO THE REVIEW
The applicants are a husband and wife from India. The first applicant (the husband) was born in [Year] and the second applicant (the wife) in [Year].
They arrived in Australia [in] March 2018 on Visitor (Class FA) (Subclass 600) Tourist visas.
They applied for the visas the subject of this review on 15 March 2018. They sought protection on the basis that the first applicant had been involved in political activity and would face persecution if he returned to India, and the second applicant is a member of his family unit. The first applicant claimed to have been involved with the Patidar Anamat Andolan Samiti (PAAS).
The delegate of the Department of Home Affairs (the Department) refused to grant the visas. The delegate did not accept that the first applicant had a high profile in PAAS and had been or would be targeted by the government or its supporters.
This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
SUMMARY OF RELEVANT LAWS AND PRINCIPLES OF REVIEW
The applicants have applied for Permanent Protection (Class XA) (Subclass 866) visas.[1] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Act. If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.
[1] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611.
Australia acceded to the 1951 Convention relating to the Status of Refugees[2] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[3] in 1973, thereby undertaking to apply their substantive provisions. For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[4]
[2] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).
[3] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).
[4] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’.
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). Extracts of the relevant legislative provisions are set out in Attachment A to this decision.
An applicant must establish that they:
·     are a refugee[5] (the refugee criterion); or
·     qualify for complementary protection[6] (the complementary protection criterion); or
·     are a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds[7] (family member criterion).
[5] Section 36(2)(a) of the Act.
[6] Section 36(2)(aa) of the Act.
[7] Sections 36(2)(b) and (c) of the Act.
Refugee criterion
Section 36(2)(a) of the Act 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, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail him or herself of the protection of their country of nationality: s 5H(1)(a) of the Act.
Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.
A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J(2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J(3)).
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 of the Act, which are extracted in Attachment A to this decision.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.
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) of the Act, which are extracted in Attachment A to this decision.
The applicants must satisfy the statutory elements
It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510.
EVIDENCE CONSIDERED IN THIS REVIEW
The Tribunal has taken into consideration the application for the visa and supporting documents, new evidence provided to this Tribunal, and independent country information about India.
The first applicant appeared before the Tribunal on 15 July 2024 to give evidence and present arguments. He confirmed that the second applicant, his wife, would rely on his claims, and had no claims of her own. The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages.
The applicants were provided with an opportunity to provide post-hearing submissions.
The evidence and material before the Tribunal is referred to where relevant in the findings. The findings incorporate reference to information that the Tribunal has found to be material to the determination of the issues in the case.[8]
[8] The Tribunal notes that it is not required to make explicit reference to every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.
FINDINGS AND REASONS
The Tribunal must determine whether the applicants meet the refugee criterion, or the complementary protection criterion set out in the legislation.
For the following reasons, the Tribunal is not satisfied that the applicants meet the criteria.
Nationality
For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’.
For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.
The applicants have passports from India. The Tribunal is satisfied, based on their passports and testimony, that the applicants are nationals of India, and that India is the receiving country for the purposes of the legislation.
Findings about background and family
The Tribunal accepts the first applicant’s evidence about his family and background. There is no reason to doubt this information.
The applicants married ‘in a big wedding’ on [Date]. They have a child who was born in Australia, who is aged [Age]. The applicants also have a daughter in India. According to information provided at the interview with the Department, this daughter accompanied them to Australia and then left Australia with a family friend, [Ms A], and is staying with her grandparents in Ahmedabad. At the Tribunal hearing the first applicant said that his daughter is [Age] years old and living with his parents. He was asked why she did not live with them in Australia. He said that they brought her, but later they sent her back because she was not comfortable and missed his parents.
According to the application, and confirmed at the Tribunal hearing, the first applicant is from [Village], Mehsana, Gujarat in India. His wife is from in a nearby village.
His parents are still alive and living in the village. His grandparents from both sides came from that region, although they have passed away. He has uncles, aunts and cousins in the region. He keeps in touch with his family and friends in India.
When the first applicant grew up, his father was a farmer and had a shop, but he has retired now. His mother was a housewife. The first applicant has a brother, who is living with his parents. He works as a manager in a [workplace]. No members of his family have been involved in any political parties.
The second applicant’s family are still living in the village. They were farmers but have now retired. She has a brother who is living in Australia.
The first applicant attended high school until [Year]. After high school, he worked part-time and studied [subject], finishing in [Year]. After that he worked at [Employer] in his hometown in Gujarat as [an occupation 1] He worked there until he came to Australia.
His wife worked before marriage as [an occupation 2]. After their wedding she did not work. They lived with his family.
When they arrived in Australia, the applicants stayed in a hotel. They then moved to [City] to work. The first applicant is working in [City] in a [workplace].
Was the applicant a leader of PAAS and did he campaign for reservation, resulting in arrest and/or attacks by police and hooligans associated with BJP?
The first applicant made the following claims in his application:
As I am the leader of my community ''PATIDAR'' and i have supported HARDIK PATEL in the campaign of Reservation for study and jobs in my territory which later on became political issue and in my area i was arrested for one night one year back. Police caught us and also smashed me and started hitting me with sticks as if i were an animal. I then reached my home at the same night and then political pressure started mounting on me to withdraw my involvement from this particular movement. I denied to do so. Thereafter they started attacking my house by their hooligans. Party inposition wants their more seats and we were opposing at that time.so, one night when i was passing through my street hooligans came and started hitting me and told to join their political party BJP or leave this country otherwise they will kill me. All the news are open in media. Even videos of this torture are also available on yutube. Many innocent youth were put in the prison. Many were killed in the lathicharge. I was in th higer position in PAAS , the organisation leading the agitation so we were on the main target. Police was deployed in front of our house. We were seen as a threat to the state government. I was attacked and trapped by political party and the whole campaign resulted in bloodshed. Hooligans of political party is responsible for this harm. Because I was actively involved in "PATIDARCAMPAIGN FOR RESERVATION IN JOBS AND ADMISSION IN UNIVERSITIES AND OTHERS"
We did our best to make sure that this party which has unleashed the torture on people get defeated but in recently conculded state assembly election, the same party came back to power with the help of money, threat and coersion. Immediately after assuming power, it started torturing those who were against it. The main reason i came to Australia is tpo save myself and my family from the torture of BJP (Bhartija Janta Party). They are very firm on arresting us. Many of my coworkers are linguishing in the jail.
At the Tribunal hearing the first applicant was asked if he prepared his own protection visa application. He said that he prepared it and a friend in India helped him. The friend translated the document and explained it to him. He said that the claims he made in the protection visa application are true and correct.
In his Department interview on 12 December 2018, the first applicant elaborated on some of the claims made in his application, stating that he joined PAAS in 2016. He said that he had not been politically active prior to this and had only a general knowledge of politics. He also said that he joined ‘about a year ago’ (prior to the Department interview, so in about 2017). He said that he was not harmed by police but was lathi-charged at an agitation. He told the Department that some of his close circle were arrested, including Alpesh Kathitri who, at the time of the interview, was still in jail. He said that Alpesh Kathitri was charged because he was an activist of the reservation movement.
At the Tribunal hearing the first applicant said that he became involved on 25 August 2015 at a large gathering of PAAS. He said that he ‘just joined’ and there were no membership cards. He provided new evidence that members of BJP went to his house many times to ask about him after he left in 2018. He said that even now members of BJP go to his house and ask about him. He said that they go every two to three months and watch his place and have kept enquiring about him. He said that BJP supporters also threatened and beat his friends, as did police. He said that his friend Alpesh Kathitri was on bail.
His other evidence to the Tribunal is referred to in the findings below.
The Tribunal is not satisfied that the first applicant was a leader of PAAS or was arrested, beaten or harassed by police or BJP supporters or hooligans There were simply too many discrepancies in the evidence he gave in his application, at the Department interview and in his evidence before the Tribunal for the Tribunal to be able to accept his evidence as credible.
In assessing credibility, the Tribunal is mindful of the various factors which may impact on memory recall, noting that research in Canada has found that refugee decision-makers have unreasonable expectations of memory and that ‘decades of psychological research’ has demonstrated that memory is incomplete and changes over time, and that inconsistencies in testimony should not be used ‘mechanically’.[9] Furthermore, an Australian study found that tribunal members may rely on assumptions which can be inconsistent with psychological literature.[10] Madeline Holland in a paper on Narrative and Credibility in the United States’ Political Asylum Applications argues that the stories of asylum seekers are evaluated for their truthfulness ‘on the basis of criteria that align with Western literary standards of veracity’. That is, ‘Western literary standards shape our understanding of what a “true story” should sound like’.[11]
[9] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law, Volume 22, Issue 4, 469–511 < Hunter Dowd, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented.’
[11] M Holland, ‘Stories for Asylum: Narrative and Credibility in the United States’ Political Asylum Application’, Refuge: Canada’s Journal on Refugees, 10 December 2018.
The Tribunal acknowledges, in light of this research, that it should take a reasonable approach to credibility assessment and base findings on evidence rather than assumptions, which may be founded in cultural or social bias. The Tribunal is cognisant of the particular complexities in presentation of evidence in asylum cases. The Full Federal Court in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167 referred to these difficulties as follows:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
Experiences in an applicant’s home country may lead to nervousness and anxiety in presenting evidence to government authorities. Presentation may also be impacted by cultural behaviours, mental health issues or level of education, as well as stress caused by separation from home and family. An applicant may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons.
The objective of taking a ‘reasonable approach’ to fact-finding, given the various impacts on presentation of evidence, is supported in numerous judgments. Burchett J stated in Sundararaj v Minister for Immigration and MulticulturalAffairs [1999] FCA 76, it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

The Tribunal’s Guidelines on the Assessment of Credibility, reinforce that the Tribunal should be mindful of the various factors which may impact on evidence and should approach the assessment with an open mind.[12] However the Tribunal is not required to accept uncritically any and all of the allegations made by an applicant (Randhawa v MILGEA (1994) 52 FCR 437).
[12] AAT, Migration and Refugee Division, ‘Guidelines on Assessment of Credibility’, available on the AAT Website, <>
In this case, when weighing the totality of the evidence about what took place in India, the Tribunal is not satisfied that the first applicant was a leader of PAAS or suffered harm as a consequence. The Tribunal accepts that he was a supporter of the movement but not that he attended meetings or had any profile in the movement. The reasons for these findings are set out below and relate to inconsistency in evidence, lack of knowledge about the PAAS movement in which he claimed he was a leader, and absence of corroborative material.
The Tribunal has considered the inconsistencies in the evidence in the context of the evidence as a whole, finding that the inconsistencies are significant and material.[13] The Tribunal has also considered, as submitted by the applicant, the possibility of trauma and stress impacting on the evidence, although no medical reports were provided. The Tribunal has also considered possible linguistic and cultural barriers impacting on the presentation of evidence and which could cause forgetfulness or confused evidence. The Tribunal notes that submissions have not been provided about specific poor or incorrect translation or interpretation. Further, the inconsistencies are of such a substantial nature that they could not be blamed on forgetfulness due to stress or on linguistic or cultural issues.
[13] AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133.
Before discussing the material inconsistencies, the Tribunal comments on some more minor inconsistencies, which have not been taken into consideration negatively in assessing credibility. In the Department application the first applicant claimed that his house was attacked by hooligans and once he was stopped on the street and assaulted. At the Department interview he said opposition supporters attacked his house ‘by their hooligans’. He also said that one night three to seven BJP supporters hit him and told him to join BJP, leave the country or they would kill him. He claimed that between 2016 and 2017, the ‘BJP people’ approached him once or twice. He said that he had not been attacked. He later mentioned being lathi-charged at an agitation but only when prompted.
At the Tribunal hearing he said that during the meeting on 25 August 2015 Hardik Patel was attacked as was he. People were beaten up and there was a lathi-charge. Asked what happened to him, he said that he ran away. He was beaten up with sticks and was injured and went to the hospital. Asked if he had medical records from this incident, he said that he just went to a small clinic and had bandages applied. He also said that there was an attack on him when he was returning from attending a meeting. This was in 2016 but he cannot remember the exact date. When he finished the meeting, and was returning home, ‘people from another political party’ caught him and told him to leave the party. They threatened him and then beat and lathi-charged him. He was hurt, with injuries on his leg and back. He ran away and went to his place. He did report it to the police, but they did not listen. He said now when he sleeps at night he gets ‘thoughts about those movements’. He was asked if there were other times he was harmed by people from other parties. He said that there was another time when he was confronted and told to leave the party. This time he was just warned. He said that on a third occasion, he was followed after attending a meeting. Opposition party members caught him and beat him up. They asked him to leave the party. He was injured but did not go to the hospital. He said that there were many other times as well.
The Tribunal put to him at the Tribunal hearing that in his application he claimed his house was attacked by BJP hooligans, but he did not mention this in his evidence to the Tribunal at hearing. The Tribunal also queried at the hearing why in his Department application he did not mention that once or twice BJP supporters asked him to leave the PAAS and when he refused, he was beaten with sticks. This information was provided during his Department interview and to the Tribunal. He responded that he had told the Department and Tribunal what he remembered but a long time has passed. He said that he has lived in Australia for six years, and ‘joined the culture’ of Australia so he has forgotten.
The Tribunal accepts that if a number of attacks had taken place, they may have blurred in the first applicant’s memory such that his recall of details might not be exactly the same. The differences in evidence about attacks by BJP supporters is not taken into consideration negatively in assessment of the evidence. Also not taken into consideration in the assessment of credibility of the first applicant’s evidence, is information referred to in the decision of the delegate of the Department that an identical statement of claims had been used by other applicants from Gujarat, which the delegate said undermined the credibility of his claims. The first applicant told the Tribunal that it may have happened that other people faced similar problems to his so the claims may have been similar. The Tribunal makes no comment on this information as it has not seen the identical statements of claims. The Tribunal has not taken this information into consideration.
The Tribunal is not satisfied that the first applicant was a leader of PAAS or was arrested, beaten or harassed by police or BJP supporters for the following reasons.
Firstly, the applicant’s evidence about when he became involved in the organisation varied significantly.
In his Department interview on 12 December 2018, he stated that he joined PAAS in 2016. He said that he had not been politically active prior to this and had only a general knowledge of politics. He also said that he joined ‘about a year ago’, referring to a year prior to the Department interview, which would have been in 2017. He said at the Department interview that he helped organise the largest meeting at GMDC Ground on 25 August 2016, attended by 200,000–250,000 Patidars from entire Ahmedabad. The delegate put to the first applicant that Hardik Patel had been arrested from October 2015 to 15 July 2016 and was released on bail on the basis that he would remain outside of Gujarat for six months.[14]
[14] BBC News, ‘Hardik Patel: India Patel caste leader freed on bail’, 15 July 2016.
At the Tribunal hearing he was asked to confirm when he joined the movement. He said that on 25 August 2015 there was a ‘big movement’. He said that many people, about 2.5 million, gathered and he decided to join. He said that from that day forward ‘the movement started’.
These discrepancies in evidence were put to the first applicant for comment at the Tribunal hearing. He said that he cannot remember dates well so may have made mistakes. He said that he remembered 25 August 2015 specifically as it was a ‘big agitation’. While the Tribunal accepts that it is easy to get actual dates wrong, the Tribunal is of the view that given the significance of participation in a political group, a person would remember clearly whether it took place one, two or three years prior to arrival in a new country, and whether it was tied to a particular event or not.
Secondly, the first applicant’s evidence differed about the type and level of involvement in his evidence to the Department and Tribunal. In the Department application, he said that he was a leader of Patidar. At the Department interview he said that after he joined the movement, he gained more knowledge, so Hardik Patel appointed him a leader of a particular area, Ahmedabad. When prompted for more details by the delegate, he said that he was responsible for [Neighbourhood]. He said in the Department interview that they organised big meetings where they chose the venue and invited people who then would arrange meetings in their areas. He organised meetings of 500–600 people in his district. He said that he encouraged people to join the PAAS and demand reservations from the government for the sake of their children and because the government was giving jobs to people from other castes. He claimed in his Department interview that whenever Hardik Patel had a meeting, he would go with him.
As mentioned, at the Tribunal hearing the first applicant referred to becoming involved with the organisation on 25 August 2015. He said that people gathered at GMDC Ground and Hardik Patel delivered a speech, saying that the point of the gathering was to get a reservation. He said that there were some other people supporting Hardik Patel, and they spoke as well.
He said that after this, he was in contact with the group, but the movement became a ‘little inactive’. He said that people involved with the group were organising small meetings. Asked how they kept in contact, he said that they talked over the telephone, and they attended small meetings. He said the meetings were held in different areas in different places, for example in a garden or community hall.
Asked if he was involved in any other way, he said that he was not and he only went to meetings. He heard about them through telephone calls from friends as he had quite a few friends that were involved. He attended all the meetings in 2015, when it was a big movement and in 2017 and 2018 when it was smaller. He said that he attended about ten to fifteen meetings in total. Hardik Patel did not attend all the meetings as he was ‘a very big leader’. The first applicant said that he was not involved with any other movements.
The Tribunal asked the first applicant a number of times if he was involved in any other way for Patidar besides going to meetings and he said that he was not as he was busy with work. He said that whenever there was a movement or agitation he would attend. Asked if he knew Hardik Patel personally, or just from attending meetings, he said that he was ‘a big leader’, and just knew him from going along to meetings.
At the Tribunal hearing, he was asked why he told the Department that he was asked to be a leader by Hardik Patel, and he then led and organised meetings in a particular region, whereas he told the Tribunal that he attended the large gathering in August 2015 and after that only attended small meetings when informed about them, had no other involvement with the movement and did not know Hardik Patel personally. He responded that he is only saying what he can remember, and he has forgotten certain things, so he just says what he remembers.
The Tribunal acknowledges the difficulties with memory recall over time but notes that these are key aspects of his claim – the activities he conducted for PAAS and whether or not he was a leader. In post-hearing submissions he again stated that he was involved in

large-scale protests, had substantial involvement, was a leader and organised meetings. The Tribunal is of the view that although small details such as dates, locations and descriptions are difficult to remember over time, it is reasonable to expect that a person would recall if he was a leader of a movement, organised meetings and knew the leader personally, or simply attended meetings.
Thirdly, there were differences in his evidence about the harm he suffered from authorities as a result of his involvement in PAAS. In his application he said that ‘I was arrested for one night one year back. Police caught us and also smashed me and started hitting me with sticks as if i were an animal.’ This evidence was not mentioned when he was asked about harassment from police in the interview with the Department. At the Department interview he confirmed that he had not been involved with the police. He said that he has no criminal record, and there are no charges or warrants in his name in India. He did mention an incident though at a rally. He said at the Department interview that he was not harmed by the police, but he was personally attacked. He claimed that, sometime between 2016 and 2017, he was organising agitation in his area and the police lathi-charged and stopped them. He said that this happened three months after 25 August 2016.
The first applicant also did not tell the Tribunal about being arrested although the Tribunal asked him whether he was targeted by police because of his involvement with PAAS. He was asked a number of times if he encountered any hostility from the police. He said that he did not, but mentioned police did not listen to him when he reported things.
When asked about this discrepancy at the Tribunal hearing he said that it happened, but he may have forgotten.
Asked at the Tribunal hearing if he suffered any other harm from the police besides the time on 25 August 2015, he referred to an attack on him by hooligans from another party, but not from police.
In post-hearing submissions the first applicant again referred to being detained overnight and subjected to severe physical abuse by the police. The Tribunal is not satisfied that he was arrested given the variance in his evidence about such an important incident.
Fourthly, the first applicant told the Tribunal that after he left India, his family continued to be harassed, which was not mentioned in his application. He said at the Tribunal hearing that the BJP supporters came to his home in 2017 and threatened him and his parents. They used foul language and they tried to beat him up but did not succeed as he went outside the house. Asked if he reported it to the police, he said that they did but the police did not do anything. When asked at the Tribunal hearing why he had not mentioned this in his application, he said that he thought that he had mentioned it.
Fifthly, the first applicant’s evidence about reporting to police was different. At the Department interview he said that he did not report incidents from BJP supporters to the police because the police connived with the perpetrators. He told the Tribunal that he reported incidents to the police but they ‘did nothing’.
There were also more minor differences in evidence, for example in his evidence to the Department he referred to the big gathering as taking place on 25 August 2016, which as the delegate of the Department pointed out, was a date when Hardik Patel was in home detention. At the Tribunal he referred to the gathering as taking place on 25 August 2015. When asked about these differences, he said that he made a mistake with dates earlier. While it is more perceivable that this is just a result of faulty memory recall, when considered alongside the other discrepancies it does contribute to a finding that the evidence about his involvement is not credible.
Sixthly, the first applicant did not have the kind of detailed knowledge which would be expected of a leader of PAAS. Given that leaders may have different levels of knowledge this factor is not given significant weight, but it is taken into consideration cumulatively with the other factors in finding that the first applicant was not a leader of PAAS.
The first applicant did have some basic knowledge about the PAAS movement and provided reasons for supporting PAAS, and for this reason, the Tribunal accepts that he was a

low-level supporter. When asked by the Tribunal why he joined on 25 August 2015, he said that ‘it was our national point, it was about getting reservation in government jobs and education for the Patel community.’ He said that when he applied for government jobs people with ‘Patel’ names could not get them. He said that after he completed his education, he could not find a government job so thought that the movement of Hardik Patel was appropriate. He knew that the movement was named after Hardik Patel. In terms of motivation, he told the Department that the movement had a personal appeal to him as he wanted to have a government job himself. He said that PAAS meetings were attended by many supporters who demanded reservations from the government of Gujarat ruled by the BJP.
This information does accord with independent sources. As set out in the Department of Foreign Affairs and Trade (DFAT) Report:
The Patidar Reservation movement, sometimes called the ‘Patidar agitation’ or ‘Patels’ (named after chief agitator Hardik Patel), was a series of large-scale protests that occurred in the latter half of the 2010s. ‘Patidar’ is the name of a caste, mostly found in Gujarat. The protests demanded that the Patidar be recognised as a scheduled caste and thus receive government concessions associated with that status.[15]
[15] Department of Foreign Affairs and Trade, DFAT Country Information Report India, 29 September 2023.
However, the first applicant did not have the kind of detailed knowledge which would be expected of a Patidar leader.
Asked why Hardik Patel began the Gujjar agitation, he said that he began the Gujjar agitation in August 2015 as people were not getting admission to government education and government jobs. He did not mention that Hardik Patel’s sister could not get a job, which was an impetus for him to found the movement. As reported in 2022:
2015 was an important year in Gujarat politics, and not just because the state's longest-serving Chief Minister, Narendra Modi, was completing his first year as Prime Minister of India. That year, inspired by the Gujjar agitation of Rajasthan, the Patidar community of Gujarat began their agitation in the month of July demanding OBC status and effectivel reservation in government jobs and education. The stir was spearheaded the by the Patidar Anamat Andolan Samiti of which Hardik Patel was the leader. Patel began his quota as his sister had lost a college sponsorship even through her friend had acquired it under the OBC quota. He saw similar issues with the Patels in jobs and other fields, as the community was considered too well off to be included under India’s reservation system. His populatrity at the time, despite being just 22 years old, was so great that crowds of laks of Patels assembled to hear him speak about the injustice meted out to the Patidars. The early days of the Patidar agitation were marked by severe violence with mobs involved in damaging public property, burning buses and targeteing Gujarat’s ministers – allegedly in response to brutality on unarmed civilians.[16]
[16] Deccan Herald, 8 December 2022, <>
If the first applicant was integrally involved with PAAS at this time, as claimed, then it is likely, although not definite, that he would have known about Hardik Patel’s sister. The Tribunal accepts that some activists may not have known this fact, so it is not determinative, but is considered cumulatively with all the other factors mentioned in these findings.
The first applicant was asked if he knew what happened on 14 January 2019. He said that Hardik Patel went on a fast for seven days to get the reservation. He was asked if the movement succeeded in getting the reservation, he said that they did not approve it and have not approved it so far.
The Tribunal is of the view that if the first applicant had been involved as a leader with PAAS he would have been aware that in January 2019 legislation was passed to allow a ten per cent reservation of government jobs and education for the economically backward section of society.[17] President Ram Nath Kovind of the Modi government approved the bill on 14 April 2019.[18]
[17] The Print, 13 January 2019, < The Print, 13 January 2019, < type="1">
The Tribunal put this information to the first applicant at the Tribunal hearing and asked him if he still feared returning to India as the reservation had been granted. He again insisted that no reservation had been passed for his community.
However on 14 January 2019, Business Today reported that ‘a day after President Ram Nath Kovind approved the Modi Government's bill to grant 10% quota in government jobs and education for economically weaker sections (EWS) irrespective of religion and caste, Gujarat became the first state to implement the new quota.’[19] In February 2019, Hardik Patel was reported to have said he was ‘satisfied with the 10 per cent reservation in government jobs and education for economically weaker sections in the general category announced by the Centre’, but also that ‘we will wait till the Supreme Court approves it.’[20]
[19] Business Today Online, 14 January 2019 < Outlook Publishing India, 6 February 2019, <>
This is information which the first applicant would reasonably be expected to know if his claims were truthful about being a leader, accompanying Hardik Patel to meetings, and having ‘substantial involvement’ and ‘organising meetings’ for the movement.[21]
[21] See for example Nejad v Minister for Immigration and Multicultural Affairs [1999] FCA 1827.
The Tribunal also questioned the first applicant about whether Hardik Patel has continued to fight for other issues. He said that in 2015/16 he did not fight for anything else. Hardik Patel has said that besides reservation, his other chief demand was withdrawal of police cases against Patidars during their four-year-old agitation as well as ‘action against police officials who unleashed atrocities on our youngsters’.[22] Sources suggest that besides the withdrawal of police cases, the other demands of PAAS included providing jobs to the family members of Patidar youth who lost their lives during the agitation.[23]
[22] Outlook Publishing India, 6 February 2019, < Indo-Asian News Service (IANS), 21 February 2022, ‘Ready to quit Congress and revive Patidar agitation: Hardik Patel’.
The first applicant was aware that since he came to Australia, Hardik Patel joined the Congress Party (in March 2019), but he was not aware that he had now joined BJP. Hardik Patel joined BJP in June 2022.[24] Two weeks after quitting the Congress he said that he wanted to become a soldier of Prime Minister Narendra Modi to work for national interest.[25]
[24] The Indian Express, 3 June 2022, < The Indian Express, 3 June 2022, <>
The first applicant was not aware that a Patidar was named as Chief Minister of Gujarat. In September 2021, the BJP named Bhupendra Patel as the new Chief Minister of Gujarat, after he was unanimously elected the BJP legislature party leader in the state. His name had been proposed by Vijay Rupani, who had unexpectedly resigned from the Chief Minister post.[26]
[26] Wion, 12 September 2021, ‘India’s Gujarat state gets new CM ahead of crucial elections next year’.
He was not aware of the results of the December 2022 election for Gujarat. BJP won highest number of seats in Gujarat’s history in December 2022 state elections. Hardik Patel won the seat of Viramgam.[27]
[27] The Times of India, 15 July 2024, <>
In post-hearing submissions it was argued that activists may not have knowledge of ongoing developments. The Tribunal accepts this but also is of the view that a leader would know the core changes made to the organisation he claims to have been very active in. His lack of knowledge is not determinative, as there may be varying degrees of knowledge within a political group, however when considered with the other findings it does contribute to an overall assessment that the first applicant was not a leader of PAAS.
Finally, the Tribunal notes that little corroborative evidence such as witness statements, brochures or photographs have been provided. The Tribunal appreciates the difficulties the first applicant may have had in retaining some of this information when he moved countries, however given the lengthy time between the Department interview and the Tribunal hearing, it could have been expected that if he had been involved as a leader, he could have organised for some documents to be sent from India.
An opportunity was provided for post-hearing submissions. The first applicant provided a medical report from [Hospital], Gujarat, dated 10 August 2016 referring to a ‘H/o head injury, abrasion on right leg. Admit under my supervision for 2 days’. He also provided a ‘Discharge Card’ from [Hospital] dated 8 April 2017 referring to admission since 23 March 2017. The ‘condition on admission’ referred to injuries on head and hand. He also provided a patient record dated 19 November 2016 from the same hospital stating ‘this is to certified that [the first applicant] was admitted under my super vision for the treatment of head injuries and multiple wounds due to mob lynching assault. He has recovered from all injuries.’ In an accompanying statement, the first applicant claimed that on release from prison, he was under pressure to withdraw from the movement which he refused, and he was then physically assaulted and threatened with death unless he joined BJP or left the country. He said he was hospitalised on more than five occasions and provided evidence of three occasions. He said that due to the length of time and his family moving home he was unable to find other documents.
The Tribunal notes that he did not include evidence about these hospitalisations in his earlier evidence. In post-hearing submissions he did not provide an explanation as to why this evidence about hospitalisations differed from earlier evidence about treating his injuries. At the Tribunal hearing he said that during the meeting on 25 August 2015 he was injured and went to the hospital. Asked if he had medical records from this incident, he said that he just went to a small clinic and had bandages applied. He also said that there was an attack on him when he was returning from attending a meeting. This was in 2016 but he cannot remember the exact date. When he finished the meeting, and was returning home, ‘people from another political party’ caught him and told him to leave the party. They threatened him and then beat and lathi-charged him. He also said he was hurt, with injuries on his leg and back at an incident in 2016 when he was returning from attending a meeting and he ran away and went to his place. He also mentioned being beaten up after attending a meeting and although injured he did not go to the hospital.
The Tribunal is not satisfied that the documents demonstrate that he was harmed for reasons of his political activity as a leader of PAAS.
In the post-hearing submissions, the first applicant provided a letter from his father, stating that because of their son they had faced ‘constant harassment and abuse over the years. We have had to move 4 different times just to try and stay safe. If [the son] were to return to India I truly believe that he will face torture or worse.’ Given the other concerns that the Tribunal has with the evidence, as set out in detail above, the Tribunal does not give this document weight[28] particularly as a parent may be invested in ensuring a child’s wellbeing such that the evidence provided may not be objective. The Tribunal does not accept that the family has been harassed because of their son’s political activities.
Summary of findings as to whether the first applicant was a leader of PAAS and was arrested by police or harmed by opposition supporters
[28] Re MIMA; ex parte Applicant S20/2002 [2003] HCA 30 per McHugh and Gummow JJ.
The Tribunal has considered the evidence in its totality. Although the first applicant had some knowledge of PAAS, the Tribunal is not satisfied that he was a leader or had any profile in PAAS or that he was arrested or beaten by police, or harassed, beaten or harmed by BJP supporters or other party supporters while living in India. The Tribunal is also not satisfied that his family was harassed by BJP after he left the country or that his friends were arrested. The Tribunal accepts that the first applicant supported PAAS.
Do the applicants have a well-founded fear of persecution for one of the reasons set out in the legislation?
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.
The next issue for consideration by the Tribunal is whether the applicants have a

well-founded fear of persecution for one of the reasons set out in the legislation.
The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act. It provides that a person has a well-founded fear of persecution if:
·     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·     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 above; and
·     the real chance of persecution relates to all areas of a receiving country.
Is there a real chance of serious harm if the applicants were to return to their home country?
The Tribunal has considered first whether there is a real chance that if the applicants returned to India they would be persecuted. Section 5J(4)(b) of the Act provides that the persecution must involve serious harm. The Tribunal must assess whether there is a real chance of serious harm in the reasonably foreseeable future.[29]
[29] Mok Gek Bouy v MILGEA (1993) 47 FCR 1 at 66; and MIEA v Wu Shan Liang (1996) 185 CLR 259 at 279 where the High Court referred with approval to the test that the Tribunal had applied in Chen Ru Mei v MIEA (1995) 58 FCR 96.

100. For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act, provides an objective element to that concept[30] – not only must a person fear persecution, there must also be a prospect of that fear being realised.
[30] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, < The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J of the Act, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[31]
[31] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p. 171.
102. The first applicant has claimed that there is a real chance of serious harm from opposition party members or their criminal associates or from the government for reason of his political opinion.
103. The first applicant stated in his application that:
If I return to my home country, i will be the victim of state sponsored torture from political party and police force and will be killed by hooligans and because i am in their list of WANTED. I will be mistreated by police and political party in power. They are rude and selfish. They think only about VOTE BANK.

104. He said at the Department interview that the PAAS movement is still operating, and the BJP supporters are still committing ‘atrocities’ against the PAAS members. He said that there is no safe place for him in India as the BJP would find and kill him anywhere.
105. At the Tribunal hearing, he was asked if he still fears returning to India for reasons of his political involvement given that he left the country so long ago, and the reservation campaign was no longer current. He said that people who are looking for him will attack and kill him.
106. The Tribunal is not satisfied that there is a real chance of serious harm for reason of his political opinion in the reasonably foreseeable future. The Tribunal is not satisfied for reasons set out earlier, that the first applicant was a leader or had any profile in the PAAS although he is a supporter of PAAS. He told the Tribunal that he is no longer involved, and he had little knowledge of current issues affecting the movement. He was asked if he would get involved in the movement if he returned to India and did not answer, just saying that he does not want to go back. The Tribunal does not accept he would participate in the movement if he returned, given his lack of interest in current issues.
107. The Tribunal is also not satisfied for reasons set out earlier that the first applicant suffered assaults, harassment or abuse from BJP members or associates for reason of his political involvement or was on any watch list. The Tribunal also does not accept that his family suffered harassment or that supporters have asked about him since he left the country. The Tribunal is not satisfied therefore that the authorities or BJP supporters or associates would have any interest in him if he returned to India.
108. Furthermore, the reservation issue is not current, and the leader, Hardik Patel, has joined BJP. If the applicants were to return, there is no longer interest in the reservation issue in their area. If they were to express their political opinion on issues affecting this region, the Tribunal is not satisfied that they would be targeted by government or BJP supporters given that the issue is not current and India is a democracy in which political expression is not generally repressed (with some exceptions which do not apply). The DFAT Report quoted below states that political discourse is ‘passionate and robust but is usually peaceful. Additionally, the issue of reservation is no longer controversial.’
109. The DFAT Report on India in 2023 provided a background on recent history as follows:
Between 1989 and 2014, no single party won a majority and power alternated between a series of coalition governments, some led by the INC. Current Prime Minister Narendra Modi of the Bharatiya Janata Party (BJP) was elected in 2014 with the first single-party majority since 1984. Modi stood on a platform of development and growth and Hindu nationalism (see Hindu nationalism) and was re-elected in 2019 with a larger majority.
India is a mature and robust democracy in which politics is hotly contested, and news and analysis is often sensationalised. Social media is used widely and sometimes includes disinformation. According to media reports, Hindu nationalism and populism have risen since Modi’s 2014 election. During this period the largest national opposition party, the INC, has weakened significantly at the national level, and no other political party has shown itself capable of forming a nationally cohesive challenge to the ruling BJP. Generalisations about India’s state of democracy are often unhelpful; India is characterised by significant ethno-linguistic and political diversity and the political landscape in one state can differ significantly from its neighbours.
Political diversity and robust debate are part of the fabric of Indian society. Freedom House, in its 2022 Freedom in the World report, notes that ‘personal expression and private discussion in India have long been open and free’. India has a very large and diverse media landscape with a range of different views expressed.
Parts of the Indian media landscape tend towards sensationalism, especially television. Open-source material, such as media, may give a skewed view of the extent or nature of events. Indian political discourse is passionate and robust, however is usually peaceful. Elections are frequent occurrences nationwide as state governments hold elections at different times. When violence does occur, it attracts significant media analysis but most elections occur without any violence at all. Where violence does occur, it is typically low level and isolated. The potential for violence does not appear to dampen appetite for engagement in politics and does not apparently reduce voter turnout.
There are a wide range of different political parties representing different interests, which reflect the extensive diversity of Indian people, their ethnicities, and religious, political and social interests. Only a small number of parties are national parties – most operate within states and Union territories. Politics may be a sub-regional affair, especially in larger states. The influence of state and regional parties has reportedly been growing steadily, often at the expense of the once-nationally powerful Indian National Congress (known as INC or simply ‘Congress’).

110. DFAT states that while diverse, Indian politics is still often majoritarian, states are organised around ethno-linguistic groupings, and politics of each state or territory will often align to the interests of the majority groups of that area. Sometimes this can lead to heated debate and political theatre where those who are not part of the majority assert their rights, although it is generally peaceful and arbitrated through democratic processes.[32]
[32] Department of Foreign Affairs and Trade, DFAT Country Information Report India, 29 September 2023.
111. At the Tribunal hearing it was put to the first applicant that DFAT states that opposition leaders, activists and supporters can usually express their opinions and are not usually targeted although there can be election violence:
DFAT assesses leaders and members of opposition parties do not face official or societal discrimination on a day-to-day basis. There is a risk of violence around elections and in street protests, for example, however, overall, both elections and protests are mostly peaceful. There is potential for critics of the government to face official discrimination (such as alleged use of pre-trial detention of critics or the use of defamation laws) and that risk should not be ruled out. However, given the vast number of opinions that are openly expressed in the context of the largest democracy in the world, the number of people facing charges or official harassment is very small. Even when charges are laid, they will not necessarily be upheld by the judiciary –although DFAT notes that the judiciary is slow to hear cases and decisions may take years. DFAT assesses that those with diverse or anti-government political opinions in general face a low risk of official discrimination or violence on the basis of their political opinions.[33]

112. It was also put to the first applicant at the Tribunal hearing that the 2023 DFAT Report states that Gujarat does not have a reputation for political violence, that risk for those involved is low and Hardik Patel is now in the ruling BJP with the Patidar agitation not currently active:

Sources told DFAT that 2022 elections in Gujarat were mostly peaceful and were not characterised by large-scale violence. Sources told DFAT that the political climate in Gujarat was less heated than that of elections in other states, and that if there was violence it did not typically affect people’s day-to-day lives. 3.91 Gujarat experienced communal violence targeting Muslims in April 2022 (see Muslims) in the lead up to the December 2022 elections. Although the BJP won the elections in a landslide, voters in the city of Khambhat, where the violence occurred, generally preferred the opposition INC. Aljazeera interviewed activists who claimed that the BJP had run an anti-Muslim campaign, however the BJP claimed that the party had won even in Muslim areas and had campaigned to attract Muslim votes.
The Patidar Reservation movement, sometimes called the ‘Patidar agitation’ or ‘Patels’ (named after chief agitator Hardik Patel), was a series of large-scale protests that occurred in the latter half of the 2010s. ‘Patidar’ is the name of a caste, mostly found in Gujarat. The protests demanded that the Patidar be recognised as a scheduled caste and thus receive government concessions associated with that status.
The protests were often lethally violent and there were many arrests. DFAT understands that the movement is not currently active.
DFAT assesses that, overall, participants in Gujarati politics face a low risk of official or societal discrimination or violence.[34]
[33] Department of Foreign Affairs and Trade, DFAT Country Information Report India, 29 September 2023.
[34] Department of Foreign Affairs and Trade, DFAT Country Information Report India, 29 September 2023.

113. The first applicant said that ‘this is true, but I feel that I still have danger because they are still harassing my family members.’ He said that he still has a fear of being attacked and killed. The Tribunal is not satisfied that his family members are still being harassed, for reasons set out earlier.
114. The Tribunal also asked the first applicant if he felt more assured returning to India as Hardik Patel is now a BJP representative so it was less likely his supporters would be attacked by BJP supporters or the government. He said that ‘Hardik Patel was a big leader and no-one can do anything for me. We are ‘small people’ and will have the same problem of being tortured.’ The Tribunal does not accept that supporters of Hardik Patel would be tortured or suffer other harm, given the country sources referred to above. The applicant’s evidence was that BJP supporters wanted him to leave PAAS, but PAAS is no longer active. There have been significant changes since he left Gujarat. Elections have been mostly peaceful with DFAT stating that political violence does not affect day-to-day lives. A Patidar was named as Chief Minister of Gujarat in September 2021. The BJP named Bhupendra Patel as the new Chief Minister of Gujarat, after he was unanimously elected the BJP legislature party leader in the state. His name had been proposed by Vijay Rupani, who had unexpectedly resigned from the Chief Minister post.[35] As referred to above, DFAT reports that the Patidar agitation is not currently active and that overall participants in Gujarat politics face a low risk of official or societal discrimination or violence.
[35] Wion, 12 September 2021, ‘India’s Gujarat state gets new CM ahead of crucial elections next year’.
115.
In MIEA v Guo (1997) 191 CLR 559, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is well-founded when there is a real substantial basis for it. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’ The Tribunal is not satisfied that the applicant’s fear is

well-founded, rather it is based on speculation. For the reasons set out above, the Tribunal is not satisfied that the chance of harm would be substantial, as opposed to remote or a

far-fetched possibility (Chan v MIEA (1989) 169 CLR 379).
116. The first applicant confirmed at the Tribunal hearing that he has no other fears of harm returning to India, other than his political opinion. He did say that he has been in Australia for five or six years, and his child has been born in Australia. He commented that his child does not know what has happened and it would not be safe for the child to return. He said that he misses his daughter in India and would like his daughter brought to him.
117. In post-hearing submissions, it was submitted that the applicants have a son who is [Age] years old. It was submitted that the child knows no other country and would face significant disruption and ‘potential harm’ if forced to relocate to India. It was submitted that the best interests of the child, as outlined in various international human rights instruments, must be a primary consideration. It was submitted that the child’s right to stability, security and continuity of care in Australia weighs heavily in favour of granting the applicants permanent residency. It was submitted that the applicants have been settled in Australia for ‘seven plus’ years, have jobs, and have been contributing to Australian society and the economy.
118. The Tribunal notes that the child is not an applicant and no information about potential harm to the child has been provided. The Tribunal has considerable sympathy for the applicants and their child. Due to delays in the review system, they have settled in Australia, and it may well be disruptive for them to depart Australia. A request was not made for referral to the Minister for ministerial intervention pursuant to s 417 of the Act, but the applicants may wish to apply for ministerial intervention.
119. The Tribunal is not satisfied that the applicants have a well-founded fear of persecution for any of the reasons set out in the legislation.
Do the applicants meet the complementary protection criterion?
120. If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (the complementary protection criterion).
121. ‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life, or the death penalty will be carried out on the person, or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
122. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally.
123. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. The Tribunal has not accepted that the first applicant was a leader of PAAS or was harmed by the authorities or opposition political supporters. Reasons for this are set out earlier. The Tribunal has found that the first applicant does not face a real chance of serious harm from authorities or from BJP supporters or associates for reasons set out earlier in this decision. For the same reasons, on the basis of the finding in MIAC v SZQRB [2013] FCAFC 33 that the real risk test has the same standard as the real chance test, the Tribunal is not satisfied that there is a real risk of any of the types of significant harm set out in the legislation.
124. The Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to India there is a real risk of significant harm.
CONCLUDING PARAGRAPH

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

126. The Tribunal affirms the decision not to grant the applicants protection visas.
Jane Marquard
Member

ATTACHMENT A – 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 3807

7 August 2024

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