1902279 (Refugee)

1902279 (Refugee) [2024] AATA 2826 (9 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1902279

COUNTRY OF REFERENCE: India
MEMBER:Rachelle Johnston
DATE:9 July 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 09 July 2024 at 1:16pm
CATCHWORDS
REFUGEE – protection visa – India – political opinion – support for Hardik Patel – reservation quotas – attack on home – detention – physical assault – delay in departing India – return visits to India – employment – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 January 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of India, applied for the visas on 14 March 2018. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Claims and evidence before the Department
Protection visa application
On 14 March 2018, the first named applicant (the applicant) lodged an application for a protection visa. The second named applicant is the applicant’s wife and was included in the application as a member of the same family unit. She did not put forward her own claims for protection before the Department and sought to rely on the applicant’s claims.
The applicant, in his protection visa application, provided the following:
·     He was born in [specified year] in [Village 1] Mehsana, Gujarat, India.
·     He married the second named applicant [in] November 2003. [Details of children deleted.].
·     His father and mother reside in Gujarat, as well has his [siblings].
·     Between [birth] and 2018 he resided in [Town 1], Gujarat.
·     He speaks, reads, and writes Gujarati and Hindi. He completed [school] between [specified years].
·     In April 2017 he travelled to [Country 1] and [Country 2].
·     Between January 2001 and February 2018 he was employed as [an occupation 1] in [a business 1].
The applicant makes the following claims in his protection visa application form:
·     He is [a leader] of his [Community 1] and officially extended his support to Hardik Patel, a leader of the Patidar community agitating for and demanding the inclusion of the Patidar community in the reservation quota for jobs or study in his territory.
·     This became a political issue in his area, and he was arrested for one night one year back for supporting Hardik Patel.
·     Police caught him and smashed him and started hitting him with sticks as if he had done something wrong.
·     That same night with political pressure he started to withdraw his support from the movement. He was denied doing so and was seen as a threat to the state government.
·     Thereafter hooligans started attacking his home.
·     The party in opposition wanted more seats in the recently concluded assembly elections he was opposing at that time. One night when he was passing through his street hooligans came and started hitting him and told him to join their political party or leave his country otherwise they will kill him.
·     His car was broken, and his house was attacked.
·     The police were harassing him so there is no question of help. He was under the constant watch of police.
·     He will definitely be arrested if he goes back to India.
·     He does not think he would be able to relocate until the new government is elected.
Interview with the delegate
The applicant attended an interview with a delegate of the Department on 18 December 2018. The second named applicant did not attend the interview. The interview was conducted with the assistance of an interpreter in the Gujarati and English languages. In the interview, the applicant responded to questions and elaborated on his claims. The Tribunal has listened to a recording of the interview. Where relevant, the applicant’s oral evidence at the interview is referred to in the Tribunal’s analysis below.
The delegate’s decision
On 16 January 2019, a delegate of the Minister refused the applicant’s protection visa application. The delegate accepted the applicant was a low-level supporter of Hardik Patel. However, the delegate did not accept the applicant was a leader of [Community 1] or an active supporter of Hardik Patel in India; that he participated in a rally in September 2015; that in India he was arrested, attacked or under surveillance by the police because of his support for Hardik Patel; that he was threatened by Bharatiya Janata Party (BJP) supporters; or that his house was damaged by hooligans. The delegate was not satisfied that the applicant is a refugee, as defined by s 5H(1) of the Act or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to India, there is a real risk that he will suffer significant harm as defined in s 36(2)(aa) of the Act. The delegate therefore found the applicant is not a person in respect of whom Australia has protection obligations, and nor is his wife.
Evidence before the Tribunal
Review application
On 1 February 2019, the applicants lodged an application for review of the delegate’s decision. They provided the Tribunal with a copy of the delegate’s decision.
The hearing
The applicant appeared before the Tribunal on 31 May 2024 to give evidence and present arguments. The second named applicant did not appear before the Tribunal. The Tribunal confirmed with the applicant that the second named applicant did not intend to appear before the Tribunal to give evidence. No witnesses were called to give evidence in support of the applicant’s claims. The applicant was not represented in relation to the review.
The hearing was conducted with the assistance of an interpreter in the Gujarati and English languages. The Tribunal confirmed with the applicant they were able to understand the interpreter. The applicant was able to answer questions without hesitation and his answers demonstrated an understanding of the questions being put to him.
The Tribunal is satisfied that the applicant had a meaningful and genuine opportunity to be heard, present his case, and participate fully in the hearing. Where relevant, the applicant’s oral evidence to the Tribunal is referred to in the analysis below.
CRITERIA FOR A PROTECTION VISA
The 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) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality and family unit
The applicant claims to be a citizen of India and presented his Indian passport to the Department at his protection visa interview. The delegate was satisfied that the applicant is using his own identity and that he is a citizen of India. The second named applicant claims to be a citizen of India and provided the Department with her Indian passport number and a copy of her passport is held in Departmental records. The delegate was satisfied that the second named applicant is using her own identity and that she is a citizen of India.
In the absence of evidence to the contrary, the Tribunal accepts this and finds the applicants are citizens of India and India is their receiving country for the purposes of assessing their claims for protection.
The Tribunal is satisfied that the applicant and second named applicant married [in] November 2003 and that they remain married. The Tribunal is satisfied that the second named applicant is a member of the same family unit of the applicant as defined in s 5(1) of the Act.
Analysis, reasons and findings
At hearing the applicant confirmed he was assisted to complete his protection visa application by a friend who he believes wrote in the application what he told him. He did not wish to make any changes to his protection visa application, and he confirmed the details of that application and the claims made therein were correct.
The applicant’s oral evidence at hearing was generally consistent with his evidence at his Departmental interview and broadly consistent with his written claims. There were some differences between what the applicant stated happened to him in India in his oral evidence to that which is provided in his written protection visa application, discussed in more detail below.
At hearing the Tribunal asked the applicant about his protection claims, what he claims occurred in India, why he fears returning to India, and about his family, education, travel history, residential history, and involvement in political groups. The applicant claims to fear harm from the police and BJP members in India on account of his support of Hardik Patel and his refusal to withdraw his support of Hardik Patel and the Patidar movement despite pressure from the BJP. The applicant also raised economic concerns on return to India at hearing.
The applicant outlined at hearing his political and residential history in Gujarat, India and his support of Hardik Patel. He explained his parents owned a house in [Village 1], Gujarat and that he moved to a leased property in [Village 2], Gujarat in approximately 2012-2013 as it was closer to his work and better for his children’s schooling. He explained he worked in [occupation 1] in a [business 2] and that he worked there for eight years and up until his departure to Australia.
The applicant explained his belief in Hardik Patel’s movement to support Patidar students to qualify for school admissions and employment opportunities that Other Backward Class students were obtaining despite having lower credentials. When asked what his specific support of Hardik Patel involved, he explained he supported him with a group to make it clear he was right that the government should not be giving the Other Backward Class these benefits. The Tribunal queried what specifically he did as a supporter and he explained he, along with other supporters, put forward demands to the government, leading to riots in 2014 or 2015.
The applicant explained he attended three rallies in total in relation to the Patidar reservation movement, across 2014-2015. At hearing he stated he was not harmed or arrested during any of the rallies. When asked why he claimed in his protection visa application to have been arrested, caught by the police, and smashed and hit with sticks, he explained he didn’t get hurt much and he had stated to his friend who completed his protection visa application there were police there striking with sticks. He explained once there was tear gas at the rallies he ran off before the police came closer.
The Tribunal asked the applicant what was involved in his leadership of the [Community 1]. He explained he was told by Hardik Patel that as a representative of his community he could explain things to the community and get their support. When pushed to explain what his specific role as a representative of the community involved, he explained whenever a need arose, he used to handle it himself.
Country information before the Tribunal indicates the Patidar Reservation movement, sometimes called the ‘Patidar agitation’ or ‘Patels’ (named after chief agitator and Patidar Animat Andolan Samiti convenor Hardik Patel), was a series of large-scale protests that occurred in the latter half of the 2010s. Consistent with the evidence the applicant gave at hearing and during this departmental interview, the protests demanded that the Patidar caste be recognised as a scheduled caste and thus receive government concessions associated with that status[1]. A large rally led by Hardik Patel took place in Ahmedabad on 25 August 2015, leading to violence, fires, curfews across parts of the state, and the death of eight people, with earlier rallies occurring in July 2015[2].
[1] Department of Foreign Affairs and Trade, Country Information Report - India, 29 September 2023, 3.92, 29-30.
[2] ‘Hardik Patel: Face of Gujarat caste protests’, BBC News, 26 August 2015; ‘Gujarat remains tense after Patel caste violence’, BBC News, 27 August 2015; ‘Patels’ stir hits normal life in Gujarat’, Indian Express, 26 August 2024.
The applicant was able to provide the Tribunal with details about the Patidar reservation movement and the events surrounding that agitation and the political objectives of Hardik Patel. The Tribunal accepts the applicant’s family is from [Village 1], Gujarat and that from 2012-2013 he lived in [Village 2], Gujarat and that he worked as [an occupation 1] in a [business 2]. The Tribunal accepts the applicant was a supporter of Hardik Patel and that he and a group of supporters of Hardik Patel put forward demands of the Patidar community to the government and that he attended three rallies in approximately 2014-2015 in support of the Patidar movement.
Whilst the applicant claimed to be [a leader] of his [Community 1], he was unable to expand in response to the Tribunal’s questions as to what his specific role in the community was in any persuasive or detailed way. His answered were limited to stating he was told by Hardik Patel to generate support and that when a need arose, he handled it himself. The Tribunal is prepared to accept Hardik Patel encouraged the applicant on one occasion to generate community support for the Patidar movement but does not accept on the evidence before it that the applicant had any other direct contact with Hardik Patel or any strategic involvement in the Patidar campaign. Nor does the Tribunal accept given his brief and limited answers about what his leadership role in the community entailed that the applicant was [a leader] of the [Community 1].
In describing the past harm he experienced in India, the applicant provided the Tribunal with the following details:
·     He was never arrested by the police.
·     He didn’t get hurt much during any of the rallies and was able to depart them before being approached by any police and once tear gas was initiated.
·     After his attendance at the rallies he received threatening phone calls. He received around 10-15 phone calls from different people from different phone numbers. The people calling him asked him not to support Hardik Patel and to relay that message to other supporters. He was threated that he would be beaten up. He tried to lodge a police complaint, but the police did not take it seriously and said anyone could get such calls. The last call he received was a week after the rallies.
·     After the Hardik Patel movement started, he moved from [Village 2] to [Town 1] and the police started watching him. He would drop off his kids to school or go to work and they would watch him and see who he was meeting up with. He knew it was the police as he would go somewhere, and suddenly unknown people would appear. The police never talked to him.
·     One day, after the rioting had finished, in approximately 2014-2015 or 2015-2016, after dropping his children at school with his father, his car was stopped by a mob. His father got out of the car and was slapped and hurt. There was broken glass. The applicant did not get out of the car, and nothing happened to him. His father got back into the car, and they left. People living nearby helped move the mob away. The mob were cursing and shouting and using bad words, telling him he was trying to do whatever he wanted and was not listening to anyone, and it was getting out of control. He does not know if he was stopped by the police, BJP members, or common civilians. He did not see the faces of these people again. He did not report the incident to the police given the police did not take his prior report about the threatening phone calls seriously.
·     A group of people came to the gate of his community compound in [Town 1] once looking for him, approximately two weeks after he moved there. He was not harmed. No one ever attended his specific home and attacked him.
·     Once, after the mob incident with his father in his car, when he was loading his car after obtaining groceries, he saw a mob coming towards him, shouting. He wasn’t sure if they were after him, so he ran off. He was not harmed.
·     Other than the mob attack on his car and the mob approaching him whilst he was grocery shopping, no one ever attacked him or came to his home to attack him.
·     He does not fear harm on return to India from anyone other than BJP members and the police.

The applicant confirmed his family, including his parents and [children], relocated to the family home in [Village 1] after his departure to Australia in 2018 and that they have not experienced any harm there in the past six years. He stated whilst no other harm occurred to him in India, he fears he will be watched again and that he might be tortured if he returns there.
The Tribunal queried if the applicant had received any threatening calls between 2015 and 2018. He stated sometimes, he’s not sure, they used to call and say he did this, and he should pull out. The applicant confirmed he ceased all political involvement and support of Hardik Patel once he came to Australia and that he has not been involved in any political groups or undertaken any political involvement whilst in Australia since February 2018.
The Tribunal is prepared to accept the applicant received up to fifteen threatening phone calls within a week of the Patidar reservation movement rallies seeking that he withdraws his support from Hardik Patel and threatening to beat him up. The Tribunal is also prepared to accept that between 2015 and 2018 the applicant received the occasional phone call in relation to his political involvement in the Patidar reservation movement. The Tribunal accepts the applicant attempted to lodge a police complaint about the threatening phone calls, was told by the police anyone could get calls and the complaint would not progress and that he did not attempt to lodge complaints about any other harm he experienced in India. The Tribunal accepts the applicant has not been involved in any political activity since his arrival in Australia in 2018.
The Tribunal also accepts the applicant moved to [Town 1] after the rallies and is prepared to accept his movements were monitored by the police and BJP members on occasion after his move to [Town 1]. The Tribunal accepts the police never approached him between his move to [Town 1] in approximately 2015-2016 and his departure to Australia in February 2018. The Tribunal accepts the applicant and his father were approached in their car by a mob at some point after the rallies had finished between 2014-2016, his father was slapped, and the applicant was verbally cursed. The Tribunal also accepts a group of people game to the gate of his community compound on one occasion about two weeks after he moved to [Town 1] looking for him and he was not harmed, and that a mob approached him in the car park whilst he was loading groceries into his car one day, but he was able to depart without being harmed. The Tribunal accepts the applicant has otherwise not experienced any harm in India or in Australia.
Given his oral evidence at hearing and the applicant’s clear assertion that no other harm happened to him in India, the Tribunal does not accept the applicant’s written claims that he was caught by the police, arrested for one night, or that the police smashed him and started hitting him with sticks. Nor does the Tribunal accept hooligans attacked his physical home or that they attacked him and hit him on the street and told him to join their political party or leave his country otherwise they will kill him.
When asked what he believes will happen to him if he returns to India, the applicant stated the police is under the control of the BJP in India and they used to threaten and watch him. In explaining why he would be harmed by BJP members and the police if he returned to India in the reasonably foreseeable future, he stated he was being watched and received threatening phone calls and he supports Hardik Patel completely. The Tribunal put it to the applicant that it has now been over six years and asked what would be gained from hurting him now and why anyone would have a continuing interest in him. He responded that the movement is still going on and stated a decision has not yet been made in relation to Hardik Patel’s demands.
The Tribunal put country information to the applicant that although a large-scale rally led by PAAS convenor Hardik Patel took place in Ahmedabad on 25 August 2015, DFAT report their understanding is the Patidar Reservation movement is not currently active and they assess, overall, participants in Gujarati politics face a low risk of official or societal discrimination or violence[3].
[3] Department of Foreign Affairs and Trade, Country Information Report - India, 29 September 2023, 3.93, 29-30.
In discussing this country information with the applicant the Tribunal explained it may lead the Tribunal to find the Patidar movement is not currently active, that he would not be the target of anyone in India if he were to return there, and that he does not face a real chance of serious or significant harm from anyone in India, even where he was previously involved in the Patidar reservation movement, a supporter of Hardik Patel, and where he was known to BJP members or the police. In response the applicant indicated he did not want to say anything, although he queried what if he returns and this happens again. The applicant’s response did not allay the Tribunal’s concerns.
Although the applicant indicated he ceased political activity after leaving India, he indicated at hearing he remained a supporter of Hardik Patel. The Tribunal is prepared to accept, despite an absence of political activity in Australia since his arrival in 2018, that the applicant holds political beliefs and that he would express those beliefs if he were to return to India, including in Gujarat. The Tribunal raised country information with the applicant at hearing that indicates India is a mature and robust democracy in which politics is hotly contested[4] and political diversity and robust debate are part of the fabric of Indian society[5]. The law provides for the freedoms of peaceful assembly, association and expression and the state generally respects this. Citizens are able to criticise the government privately and publicly, express political opinions through protest, in online forums and join political groups[6].
[4] Department of Foreign Affairs and Trade, Country Information Report - India, 29 September 2023, 2.6, 9-10.
[5] Department of Foreign Affairs and Trade, Country Information Report - India, 29 September 2023, 3.76, 27.
[6] United Kingdom Home Office, Country Policy and Information Note India: Political parties and affiliation, Version 1.0, December 2023, 3.1.1-3.1.2, 6.
The Tribunal explained DFAT assesses leaders and members of opposition parties in India do not face official or societal discrimination on a day-to-day basis. They assess that although there is a risk of violence around elections and in street protests, overall, both elections and protests are mostly peaceful. They report 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[7]. The Tribunal explained to the applicant the country information before it may lead the Tribunal to find he could express his political views publicly and openly if he returned to India in the reasonably foreseeable future without facing a real chance of serious or significant harm. In response the applicant stated that is not possible. He stated since the BJP is in government, and he hasn’t pulled his support he will always have some sort of danger. The applicant indicated Hardik Patel had joined the congress party and is still in opposition to the BJP. The Tribunal considered the applicant’s response but prefers the independent country information which indicates the applicant could express his political beliefs privately and publicly with a low risk of official discrimination or violence, including where his beliefs are in opposition to the government.
[7] Department of Foreign Affairs and Trade, Country Information Report - India, 29 September 2023, 3.87, 29.
The Tribunal also raised its concern with the applicant that he appeared to have been able to remain in India for several years after most of the threatening calls were made to him and after the mob incident where he was travelling with his father in his car. The Tribunal queried why he believed he would be at risk of harm if he returned to India now. In response the applicant indicated he had stayed in India until 2018 but wherever he went he was being watched and it wouldn’t be possible to say it won’t start happening again. The Tribunal considered the applicant’s response but did not find it persuasive in the context of the independent country information raised with the applicant at hearing, as discussed above.
At hearing the applicant explained he travelled to [Country 1] and [Country 2] in approximately 2016 or 2017. The Tribunal put it to the applicant that his travel to [Country 1] and [Country 2] occurred after he had attended the rallies in 2014-2015 and after he claimed to have commenced receiving threatening calls and to have been attacked by the mob whilst in his car. The Tribunal raised its concern that given his delay in departing India after these incidents, and that he didn’t claim protection in [Country 2] or [Country 1], the Tribunal may find that his fear of harm on return to India is not genuine or that he has exaggerated the degree to which he holds such fears as he would have left India earlier and claimed protection in [Country 2] or [Country 1]. The Tribunal also raised its overall concern with the applicant that based on his evidence it may not find he faces a real chance of serious or significant harm on return to India in the reasonably foreseeable future. The Tribunal reiterated its concern that the applicant had been able to remain in India for several years without harm before departing to Australia.
In response to these concerns the applicant commented what if he returns and something happens to him or his children. He indicated he hasn’t taken part in politics because he wanted to get away from it all. He stated his travel to [Country 1] and [Country 2] was paid in half by his company and half by him. When the Tribunal asked the applicant if he wished to respond to its concern in relation to his delay in departing India, he stated he was hiding in the village and couldn’t go anywhere and was only able to get to Australia given the help of his friend. He gave evidence that he was in hiding for a year and didn’t have a job and was working part-time wherever he could and wasn’t able to go anywhere.
The Tribunal has considered the applicant’s responses to its concerns and did not find them persuasive or that they addressed the Tribunal’s concerns. The Tribunal is prepared to accept the applicant’s company paid for half of his travel to [Country 1] and [Country 2]. The Tribunal finds the applicant’s response that something may happen to him if he returns to India to be speculative. The applicant’s response that he was in hiding, working part-time, and that he wasn’t able to go anywhere is undermined by his earlier evidence to the Tribunal when recounting his residential and employment history that he was employed for eight years as [an occupation 1] and that he had worked at that place of employment up until his departure to Australia. Nor does the Tribunal find his answer persuasive where his protection visa application states he was employed as [an occupation 1] until February 2018, the same month he arrived in Australia. The Tribunal finds the applicant shifted his evidence at hearing in an attempt to address the Tribunal’s concerns. The Tribunal does not accept the applicant was in hiding at any time in India or that he was unemployed for a year up until his departure to Australia.
When asked where he would return to if he had to return to India the applicant stated he would need to go into hiding and would need to surrender himself. The Tribunal put it to the applicant it may find he would go back to his home village in Gujarat as that is the place where his parents and children are and where he has a home and is most familiar. In response he stated it is not known his parents and kids are in his home village. He did not believe there was anywhere in India where he could avoid harm as the BJP is everywhere and they have members in every state. When asked what he would do for work, the applicant stated he would have issues with earnings as the BJP government is everywhere, so he won’t get a job and all of the [business 2] industry is controlled by BJP members. The Tribunal queried if he could work in other industries, to which he responded he could not as [business 2] is the only experience he has other than the farming work he has done in Australia. He stated he could not undertake farming work in India as his family do not have a farm, and that doing work for other farms or businesses is not possible.
The Tribunal discussed country information with the applicant at hearing which provides the World Bank classifies India as a lower-middle income country. India’s economy continued to recover in 2022 from the Covid-19 pandemic, although a slowing global economy, inflation, and elevated commodity prices pose risks to economic recovery. Nevertheless, in late 2022, India’s economy became the world’s fifth largest, and its real GDP growth trajectory is projected to exceed 6 per cent in the 2023/24 financial year[8]. Markets have recovered and jobs are widely available. The nature and quality of jobs varies, reflecting the diverse nature of the informal sector. The Tribunal explained DFAT report most Indians work in the informal sector, with the agricultural sectors and gig economy also being options[9].
[8] Department of Foreign Affairs and Trade, Country Information Report - India, 29 September 2023, 2.10, 10.
[9] Department of Foreign Affairs and Trade, Country Information Report - India, 29 September 2023, 2.33, 13.
The Tribunal explained to the applicant the country information before it indicates the economy is recovering in India, jobs are widely available, and that there are a variety of job opportunities. The Tribunal explained it may find given the applicant’s skills and experience in [occupation 1] and farming, and his capacity to re-establish himself in employment, as he has done in Australia, he would not face a real chance of serious or significant harm on return to India in the reasonably foreseeable future in terms of his ability to subsist or earn an income. The Tribunal explained it raised its concern in the context of the country information discussed with the applicant earlier, outlined above, that indicates participants in Gujarati politics face a low risk of official or societal discrimination or violence[10].
[10] Department of Foreign Affairs and Trade, Country Information Report - India, 29 September 2023, 3.93, 30.
In response the applicant indicated there is no opportunity in India at the moment and there is too much going on. He indicated he wished to raise a sensitive matter. The Tribunal encouraged the applicant to discuss any evidence in support of his claims, noting the confidentiality of the proceedings and the obligation of the interpreter to maintain confidentiality. The applicant discussed a strike in his former workplace where [number] workers are seeking an appropriate monthly wage given they had not had a wage increase in over twenty-five years. When asked why this was sensitive to the applicant, he explained because it involved a company. In discussing the strike the applicant explained although there are job opportunities in India, the pay is not enough, and that is the case everywhere. When asked how the strike related to his claims and concerns on return to India the applicant stated at the moment there is no work. The Tribunal accepts wages in India are not as high as they are in Australia and is prepared to accept workers are striking for better pay at the applicant’s former place of employment. The Tribunal has considered the applicant’s responses to its concerns and finds they do not allay the Tribunal’s overall concern as to his capacity to subsist and obtain an income in India and prefers the available country information.
Do the applicants meet the refugee criterion?
The applicant claims if he returns to India, he will be watched by BJP members and the police, and he may be tortured. He also raised concerns at hearing about his capacity to obtain employment in India.
The Tribunal, for the reasons set out above, has accepted the applicant was a supporter of Hardik Patel, that he raised the demands of the Patidar community with the government, and that he attended three rallies across 2014-2015 in support of the Patidar movement. The Tribunal has accepted Hardik Patel directly encouraged the applicant to generate community support for the Patidar movement on one occasion, that the applicant received up to fifteen threatening phone calls within a week of the Patidar movement rallies seeking that he withdraws his support for Hardik Patel and that between 2015 and 2018 he received the occasional phone call in relation to his political involvement in the Patidar reservation movement. The Tribunal has accepted the applicant has not been involved in any political activity since his arrival in Australia in 2018 and has accepted that he holds political beliefs and would express his political beliefs on return to India.
The Tribunal has also accepted the applicant moved to [Town 1] after the riots, his movements were monitored by the police and BJP members on occasion after his move to [Town 1] and that the police never approached him between his move to [Town 1] in approximately 2015-2016 and his departure to Australia in February 2018. The Tribunal has accepted the applicant and his father were approached in their car by a mob at some point after the riots had finished between 2014-2016, his father was slapped, and the applicant was verbally cursed at. The Tribunal has also accepted a group of people came to the gate of the applicant’s community compound in [Town 1] on one occasion about two weeks after he moved there looking for him and he was not harmed, and that a mob approached him in the car park whilst he was loading groceries into his car one day, but he was able to depart without being harmed. The Tribunal has accepted the applicant has otherwise not experienced any harm in India or in Australia. The Tribunal accepts the applicant attempted to lodge a police complaint about the threatening phone calls, was told he was unable to do so given the nature of the calls, and that he did not attempt to lodge police complaints about any other harm he experienced.
The Tribunal has not accepted the applicant was strategically involved in the Patidar campaign or that he was [a leader] of the [Community 1]. Nor has the Tribunal accepted the applicant’s written claims that he was caught by the police, arrested for one night, or that the police smashed him and started hitting him with sticks. The Tribunal has not accepted hooligans attacked his physical home or that they attacked him and hit him on the street and told him to join their political party or leave his country otherwise they will kill him.
In relation to the economic concerns the application raised at hearing, the Tribunal has accepted wages in India are not as high as they are in Australia and workers are striking for better pay at the applicant’s former place of employment. The Tribunal has not accepted the applicant was in hiding at any time in India or unemployed for a year up until his departure to Australia.
For the following reasons, and having regard to the findings above, the Tribunal is not satisfied there is a real chance that he will suffer serious harm upon return to India in the reasonably foreseeable future.
To meet the refugee criterion, a person must have a well-founded fear of persecution for one or more of the reasons mentioned in s 5J(1)(a), namely race, religion, nationality, membership of a particular social group or political opinion.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, whilst s 5J(1)(b) imposes an objective standard, that there must be a real chance of that fear being realised and the person being persecuted.

In relation to the applicant’s claim that BJP members or the police may continue to watch him and torture him if he returns to India, the Tribunal finds the applicant does not face a real chance of serious harm from BJP members, the police, or anyone else if he returns to his home village in [Village 1] or anywhere else in India in the reasonably foreseeable future, including in relation to his past involvement in the Patidar movement, past or continuing support of Hardik Patel, the expression of his political beliefs, or for any other reason.
As outlined above and raised with the applicant at hearing, country information indicates the Patidar reservation movement is not currently active and DFAT assesses that participants in Gujarati politics face a low risk of official or societal discrimination or violence. DFAT also assess 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. When this country information and the Tribunal’s concerns were raised with the applicant at hearing, he was unable to persuasively explain why he would be at specific risk of harm and a target of BJP members, the police, or anyone else in the reasonably foreseeable future. As put to the applicant at hearing, the country information indicates the applicant could express his political views publicly and openly on return to India without facing a real chance of serious or significant harm, including where his views are in opposition to the government.
The Tribunal does not find in circumstances where BJP party members and the Indian police did not seek to harm the applicant for more than a year before he departed for Australia, even where he was on occasion being watched by BJP party members or the police, that they had any intention of subjecting him to any form of harm after 2016. The Tribunal has not accepted the applicant was in hiding in the year prior to his departure to Australia and finds if BJP party members or the Indian police wanted to harm him in any way following their oral threats, they had ample opportunity to do so given the applicant maintained the same address following the rallies up until his departure from India and given he worked at the same company for eight years prior to his travel to Australia. Given the passage of time since the applicant has been in Australia and the changed political climate in Gujarat with the Patidar reservation movement no longer being active, the Tribunal finds the applicant would not be of interest to or a target of anyone on return to India in the reasonably foreseeable future.
The applicant travelled in and out of [Country 2] and [Country 1] for leisure after his attendance at the Patidar reservation movement rallies, after receiving threatening calls, and after the mob attack on his car and did not seek protection in either country. When the Tribunal put its concern to the applicant at hearing that it may not find he genuinely fears harm on return to India, he stated his travel to [Country 1] and [Country 2] was paid in half by his company and half by him. The Tribunal finds if the applicant genuinely feared for his life in India, even where the international trips were half paid for by his employer, that he would seek protection in either country rather than risk returning to India.
The harm the applicant experienced in India occurred over seven years ago. He has resided in Australia without issue for over six years. Considering all the evidence before the Tribunal, and the applicant’s claims singularly and cumulatively, the Tribunal finds there is no real chance the applicant will face serious harm on return to India in the reasonably foreseeable future from BJP party members, the Indian police, or anyone else for reasons of his political views, past or current support of Hardik Patel, past involvement in the Patidar reservation movement, continued support of the Patidar reservation movement, or for any other reason, including his [caste] or ethnicity. Nor does the Tribunal find the applicant genuinely fears harm on return to India in the reasonably foreseeable future.
In relation to the applicant’s concerns he could not obtain employment in India given the BJP party controls the [business 2] industry and his income would not be enough as there are no opportunities in India and wages are too high, the Tribunal accepts the applicant is worried about his future earning capacity and has accepted the wages in India are not as high as they are in Australia and workers are striking for better pay at the applicant’s former place of employment. The Tribunal is not satisfied such conditions involve serious harm to the applicant amounting to persecution in accordance with s 5J(4)(b). The Tribunal is not satisfied on the country information before it, discussed above and raised with the applicant at hearing, that the applicant would be denied employment opportunities or face official or societal discrimination because of his political views, opposition to the BJP, or for any other reason.
The applicant has a range of skills and qualifications, including [occupation 1] experience and farming skills that he could draw on to obtain employment on return to India. The country information raised with the applicant at hearing, discussed above, indicates jobs are widely available and the agricultural and informal job sectors are common avenues for Indian employment. The Tribunal finds in these circumstances that the applicant would not face significant economic hardship threatening his capacity to subsist or that he would be denied access to basic services that would threaten his capacity to subsist or that he faces a real chance of suffering serious harm for any other reason related to his ability to obtain an income in India in accordance with s 5J(4)(b) of the Act.
The applicants did not claim, and there is nothing in the material to suggest, that they fear persecution for any other reason in India. When asked if there was any other reason or basis on which he feared harm on return to India he stated no.
For the reasons given above, and having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that if the applicants return to India now or in the reasonably foreseeable future that they face a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied that the applicants have a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicants have a well-founded fear of persecution, the applicants do not meet the definition of refugee in s 5H(1) and do not satisfy the criterion set out in s 36(2)(a).
Do the applicants meet the complementary protection criterion?
Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s 36(2)(aa).
The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicants will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to India.
For the reasons set out above, the Tribunal has found that there is not a real chance that the applicants will experience harm from BJP party members or the Indian police or in relation to the expression of their political beliefs if they return to India. The ‘real risk’ test under the complimentary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion[11]. This applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J. It follows the Tribunal finds that the applicants do not face a real risk of significant harm in relation to the expression of their political beliefs, or from the BJP or police.
[11] MIAC v SZQRB [2013] FCAFC 33.
As discussed above, the applicant stated at hearing that he does not believe he will obtain employment in India as the [business 2] industry is controlled by the BJP and the wages in India are too low and there are too few employment opportunities. The applicant worked for eight years as [an occupation 1] before departing India for Australia and explained at hearing that whilst he has been in Australia he has worked in farming in irrigation, packing, and picking. The applicant explained at hearing he has a primary and middle school education. The applicant was able to establish himself in Australia and find work in an unfamiliar industry despite having no prior experience.
The country information before the Tribunal, raised above and discussed with the applicant at hearing, indicates although the nature and quality of jobs in India varies, they are widely available. Whilst the applicant may not be able to secure employment in his former workplace due to his prolonged absence and the current strike, there is no evidence before the Tribunal that indicates the applicant would face official or societal discrimination, including in employment in similar or other workplaces or [business 2] companies because of his political views or opposition to the government and BJP. The applicant’s parents and children remain in India in the family home in [Village 1] and could provide him with support whilst he re-establishes himself and finds secure employment. Considering these factors individually and cumulatively, the Tribunal finds there is not a real risk the applicant faces significant harm in relation to his capacity to find employment or subsist in India in the reasonably foreseeable future.
On the evidence before it, 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 that they will suffer significant harm. That is, the Tribunal is not satisfied that there is a real risk in being removed from Australia to India that they will be arbitrarily deprived of their lives or suffer the death penalty; or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
The Tribunal is therefore not satisfied the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Rachelle Johnston
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 2826

9 July 2024

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