1902424 (Refugee)

[2019] AATA 5240

1902424 (Refugee) [2019] AATA 5240 (4 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1902424

COUNTRY OF REFERENCE:                  India

MEMBER:James Silva

DATE:4 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 04 April 2019 at 12:25pm

CATCHWORDS
REFUGEE – protection visa – India – majority political party membership and activity – attacks and threats by supporters of minority political party – extortion by party-related labour union – involvement in neighbour’s land dispute with local leader of other party – implication in murder of supporter of other party – relocation in India – travel to multiple countries – credibility – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36(2), 65

Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a man in his early [age] who claims to be an Indian national born in Sri Lanka.

2. The applicant arrived in Australia [in] November 2018, holding a [Country 1] passport in another name. He applied for a protection visa (Safe Haven Enterprise, class XE 790) on 28 November 2018. On 30 January 2019, the delegate of the Minister for Home Affairs (the delegate) refused the application pursuant to s.65 of the Migration Act 1958 (the Act).

3. This is an application for review of that decision.

4. The applicant attended a Tribunal hearing on 21 March 2019.

5. For the reasons set out below, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

6. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

   CLAIMS AND EVIDENCE

   Protection claims

7. The applicant claims to be a supporter and member of the ruling Communist Party of India (Marxist)(CPI(M)) in Kerala. He claims that trade unionists from the opposition Bharatiya Janata Party (BJP) seriously injured him in 2013 when he refused to make large political donations to them. He claims that in 2016, a local BJP leader was furious when the applicant helped a local woman in a land dispute; that the leader’s agents chased and attacked him; and that, more recently they have tried to implicate him in the murder of a BJP activist. The applicant fears that the BJP leader and others intent on pursuing him, and that they can do so throughout India. The CPI(M) does not protect ordinary members, and the police are corrupt and unwilling to protect him.

   Background

8. The applicant is a [age] year old man who claims to be of Tamil and Malayali ethnicity, and whose languages are Malayalam and Tamil. He claims to have been born in Sri Lanka, although his Indian passport and other documents give his place of birth as [Village 1], Kerala.

9. The applicant left most of the protection visa application form blank, and gave only few biographical details in his statement of claims. However, he provided biographical details at the Department interview and at hearing.

10. He claims that he was born in [Sri Lanka], to a Sri Lankan father and an Indian mother. His father died when he was [age] years old, and the applicant moved to India with his mother. They lived in her home area of [Village 1].

11. The applicant told the Tribunal that he and his family lived in the village of [Village 2]. He referred to numerous other locations - [Location 1], [Location 2], [Location 3] and Trivandrum – and said that these all refer to the same general area. The applicant ran a [product 1] business in [Location 4], and he identified his electoral constituency as [Name].

12. The applicant claims that he attended a government school in his home area, completing his senior secondary school (referred to as the ‘+2’). He worked in [an] industry until the age of about [age] (hence, until about 2008), as [an Occupation]. He later operated a [product 1] business. The applicant presented license certificates as a [product 1] dealer and a [product 2] dealer, and explained to the Tribunal that these were issued for the purpose of the one business. During the course of the Tribunal hearing, he revealed that he sold the [product 1] business in 2013, and later worked casually [in various roles].

13. The applicant married in 2016, but the couple separated two years later, allegedly due to the applicant’s political problems and the threats to his family. His wife is currently seeking a divorce. The applicant told the delegate that he was trying to persuade his wife to stay in the marriage. He told the Tribunal that he has not had contact with her for some time.

14. The applicant’s mother lives with his [brother] in Trivandrum, and there are some other relatives in Kerala. The applicant claims to be in regular contact with his mother. However, he is not on good terms with his brother, who is annoyed that the applicant’s mother has been adversely affected by his political problems.

15. The applicant presented a partial photocopy of his latest Indian passport, issued in Trivandrum in [2015]. This states that it replaced an earlier one which had been reported lost. The applicant initially told the Tribunal that he had undertaken no prior travel abroad, but corrected himself to say that he had visited [Country 1] and [Country 2] during his work in [an] industry. He said that he obtained an Australian visa in 2006, to undertake [a job], but he pulled out of the project due to a dispute over money.

16. The applicant departed India on his current passport in May 2018. According to his evidence, he flew from Chennai to [Country 3], and then travelled by train to [Country 4]. He stayed there for about two months, before proceeding to [Country 5]. He claims that he lost his Indian passport in [Country 4], and managed to acquire a [Country 1] passport in another person’s name. He used this passport to enter [Country 5], and later fly to Australia. The applicant said that he tore up the [Country 1] passport upon entering Australia, as he thought that was the way of obtaining asylum. Although the applicant’s evidence was somewhat vague, he appears to be stating that he presented to Australian Border Force officials without any documentation, and (by implication) this is the reason he was not immigration cleared.

    Evidence

17. The evidence before the Tribunal includes the following relevant material: -

    §  The applicant’s protection visa application form, lodged on 28 November 2018. His protection claims are set out in a statement dated 17 December 2018.

    §  Identity documents: (a) partial photocopy of his Indian passport (biodata and back pages only); (b) copy of an Indian Aadhaar card; (c) copy of Indian driver’s license (Kerala); (c) a copy of an Indian income tax card. He also provided a copy of a secondary school identity booklet; a Kerala [Product 1] Dealers’ Licensing Order (valid for 2012-2013); and a Kerala [Product 2] Dealers Licensing Order, issued in 2003 and, it seems, renewed on multiple occasions.

    §  Supporting documents:

    -   A letter from the Secretary of the Communist Party of India Marxist (CPM) dated [December] 2018; the applicant told the Tribunal that this was from the party’s [Location 2] branch.

    -   The applicant also provided two brief video (20 seconds and just under three minutes) which he claims shows the police attending an incident, shortly after he was attacked.

    -   Several photographs showing a man (perhaps the applicant) with a black eye. The word ‘[Social media]’ appears on the pages, but there are no other identifiers.

    §  Country information:

    -   The applicant provided several newspaper articles relating to instances of political violence involving CPM workers in Kerala, and of political violence more generally.

    -   One of these articles, which is incomplete, reports the murder of an RSS worker named Rajesh in late July 2017.[1] This appears to be a reference to the person whom the applicant described as his friend from the BJP.

    -   The Tribunal has taken into account the Department of Foreign Affairs and Trade’s latest country information report on India[2], and other general country information discussed at hearing and referred to in this decision.

    §  The applicant attended a protection visa interview (‘Department interview’, referred to in the decision as the SHEV (Safe Haven Enterprise Visa) interview) on 17 January 2019. A recording is on the Department file, and the Tribunal has listened to it.

    §  The delegate’s protection visa decision record (‘delegate’s decision record’) of 30 January 2019.

    §  Review application form, attached to which is a copy of the decision record.

    §  The Department file includes several completed bridging visa applications (with supporting documents), which were found to be invalid. The Tribunal has found no material relevant to his protection visa application.

    [1] India Today On-line, July 29, 2017: Kerala: RSS worker hacked to death in Thiruvananthapuram; police begin investigation:

    [2] DFAT, Country Information Report – India, 17 October 2018.

18. The applicant appeared before the Tribunal at a hearing held on 21 March 2019 and 25 March 2019, to give evidence and present arguments. The hearing began with the assistance of an interpreter in the Tamil and English languages, as requested by the applicant. However, the interpreter seemed to struggle with the applicant’s accent. The applicant confirmed that his first language is in fact Malayalam, and the hearing resumed with the assistance of an interpreter in that language. It started off with a telephone interpreter, but following audio problems, the Tribunal decided to adjourn the hearing until the following week, so that a Malayalam interpreter could be present in person.

19. At hearing, the applicant said vaguely that his mother might be able to locate further documents, such as a copy of correspondence he had sent to the Human Rights Commission. But he added that she was frail, and his brother did not assist her. The Tribunal noted that the applicant had already been in immigration detention for more than four months, and it was surprising that he had not already set out about obtaining any further documents (for instance, addressing the concerns that the delegate had raised in the decision under review). In the circumstances, the Tribunal allowed one further week, for any further written submissions. The Tribunal has received no further material, as of 3 April 2019.  

20. The applicant is not represented in this matter.

    Receiving country

21. The applicant claims that he is a national of India. He presented a partial photocopy of his current Indian passport, which he claims to have lost in [Country 4]. He travelled to Australia on a fraudulent [Country 1] passport. The applicant speaks Malayalam, an official language in Kerala, and Tamil, a minority language in that state. He presented other evidence from India, and demonstrated his familiarity with that country. The Tribunal is satisfied, and finds, that he is a national of India.

22. The applicant claims to have been born in [Sri Lanka], and that his father had Sri Lankan nationality. A potential question arises as to whether he has dual Indian/Sri Lankan nationality. A non-citizen who is a national of two or more countries cannot make a valid application for a protection visa, unless the Minister has exercised his/her discretionary power to allow such an application, on the basis that s/he thinks it is in the public interest to do so.[3] The decision-maker must determine whether a non-citizen is a national of a particular country with sole reference to the law of that country.[4]

    [3] An application for a protection visa is valid only if it is not prevented by s.91P of the Act: s.46(1)(d). Section 91P provides that if Subdivision AK of the Act applies to a non-citizen the application is not a valid application. Subdivision AK applies to a non-citizen if, at the relevant time, the non-citizen is a national of two or more countries: s.91N. The Minister has a personal discretionary power to determine that s.91P does not apply to an application if the Minister thinks it is in the public interest to do so: s.91Q.

    [4] Section 91N(6).

23. At the time of independence, Sri Lanka’s Citizenship Acts of 1948-9 focused on nationality by descent, essentially rendering the large ‘Up Country’ Tamil community (those Tamils in the northern and eastern parts of the country, who had arrived during the period of British rule) stateless. A succession of agreements with India in the 1970’s sought to address this problem; one element of which included India’s grant of citizenship to 600,000 Tamils who wanted to return to India.[5] Those Tamils who remained in Sri Lanka were granted Sri Lankan citizenship. The applicant was born in [year]. His father died when he (the applicant) was [age] years old, and he moved to India with his India-born mother. It appears that the applicant has no documentary evidence or further details relating to these circumstances. Although he is in contact with paternal relatives in [Country 5], he doubted that they had any documents relating to his birth in Sri Lanka or his father’s citizenship status.

    [5] Minority Rights Group International, World Directory of Minorities and Indigenous Peoples - Sri Lanka : Tamils, March 2018, available at: 21 March 2019]

24. On the available information, the Tribunal is not satisfied that the applicant is a national of Sri Lanka at the time, or that he has any other nationality.       

25. Accordingly, India is the receiving country for the purpose of assessing his claims for protection.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    Credibility of the applicant’s claims and evidence

26. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

27. The Tribunal notes that the applicant is unrepresented in this matter. Some of his evidence appeared to be piecemeal. The Tribunal realises that this could be attributable in part to nervousness at hearing, a tendency to make statements without explaining their relevance, and/or simply the interpretation process. It makes allowance for these in the assessment below.

28. Even after considering these factors, the Tribunal has broad concerns about the truthfulness of the applicant’s claims and evidence. It found much of his evidence to be vague, unsubstantiated and based on speculation or suggestions that appeared contrived. In relation to his personal circumstances and travel, the applicant’s statements were often selective and unforthcoming.

29. During a brief discussion about the applicant’s arrival in Australia and his immigration detention, the applicant commented that he needs protection and that he now has some ‘mental issues’. He did not expand on this, or provide any medical evidence concerning his mental health. The Tribunal appreciates that the applicant’s immigration detention and unresolved migration status may be stressful. However, it did not observe anything to suggest that he has any medical issues that impaired his ability to present his claims and evidence.

30. The applicant’s recent travel history raises particular concerns about his credibility, and his need for protection. The following circumstances are of particular interest:

    §  The applicant obtained his most recent Indian passport [in] 2015; it was a replacement for an earlier passport, issued in 2007, which he had reported lost. Relevantly, his latest passport was issued some two or more years after the alleged serious assault that resulted in him needing medical treatment for some six months. The timing of these events does not suggest an immediate link between the first alleged incident in 2013, the applicant’s acquisition of the new passport in 2015, and his subsequent travel [overseas] in 2018.

    §  The applicant departed India in May 2018, some ten months after the murder of his (claimed) friend and RSS activist Rajesh in July 2017, in which the applicant claims to fear that he will be implicated. Again, the timing suggests no obvious link between the murder and the applicant’s departure from India. There was detailed discussion at hearing, set out below, about the applicant’s activities during this period.

    §   The applicant claimed that, after arriving in [Country 3], he went by train to [Country 4], where his Indian passport and bag were stolen. (The applicant submitted to the Tribunal an excerpt of an email regarding some lost bags, without any header or date, but this addresses him as ‘[Name]’, the name that appeared on his false [Country 1] passport. It does not appear to concern any theft in [Country 4], but rather other air travel, such as his flight from [Country 5] to Australia via [Country 2].)

    §   The applicant claims to have spent two months in [Country 4], and another two months in [Country 5]. The applicant told the Tribunal that he did not want to renew his Indian passport after its loss, as he does not wish to return to that country.

    §   The applicant claimed that he did not seek protection in [Country 4] or [Country 5], after friends told him that these countries do not offer asylum to Indians. He also mentioned that a friend had even told him of having been held underground after seeking protection in [Country 3]. The applicant was guarded about his activities in these countries, how he met his living expenses (except that he brought some money with him when he left India) or what his goals were there.  

    §   The applicant said that he obtained a [Country 1] passport and travelled to Australia on the basis of ‘general information’ that it was a more accommodating place for refugees.

31. The Tribunal accepts the applicant’s broad account of his travel movements. However, it considers his evidence about his activities [overseas] and his motivations in coming to Australia to be unreliable. The limited available information – in particular, his failure to seek protection [overseas] – strongly suggests that he was not fleeing persecution or significant harm in India, but rather that he was weighing up which place might offer him the best prospect for employment and residency. This adds to the Tribunal’s concerns about the reasons why he left India, the broader credibility of his claims and his need for protection.

32. The Tribunal’s detailed assessment follows.

    Involvement with Communist Party of India (Marxist) (CPI(M))

33. The applicant claims that he joined the CPI(M)-affiliated Student Federation of India while he was at school, and he remained an active supporter and member of the party, including during recent election campaigns.

34. General country information indicates that Kerala has a population of more than 33 million[6], and the state’s largest party is the CPI(M), with an estimated membership of more than 450,000[7]. The CPI(M)-led Left Democratic Front (LDF) won a landslide victory in assembly elections held in Kerala in May 2016[8]. The CPI was formed in 1925 and advocates establishment of a socialist society led by the working class, and ultimately a communist society.[9]

    [6] Office of the Registrar General & Census Commissioner, India 2013, Kerala Profile, 27 June, Census of India; CIS36DE0BB2498 

    [7] ‘Kerala – CPI(M) rues fall in quality of membership’, The Hindu, 24 February 2018, 20190124141551;

    ‘What does the future look like for CPM in Kerala?’, Livemint, 27 February 2018, 20190124142445;

    [8] ‘Left Front Victory in Kerala: A Verdict for “Social Re-engineering”’, Economic and Political Weekly, 28 May 2016, pp.29-31, CIS38A8012988.   

    [9] UK Home Office 2011, India Country of Origin Information (COI) Report, 26 August, Annex B

1. The applicant told the Tribunal that he was first involved with the CPI(M)’s student body, and later joined the CPI(M), the party proper. He submitted a letter from the Secretary of the CPI(M)’s [Location 2] branch, which briefly states that he ‘is one of our party members in [Village 1]’. The applicant said that he has a membership card, though not to hand.   

2. In relation to his family’s links with the party, the applicant said that a [grandfather] was involved in the party, and his brother favours it, but is not politically active. Asked about his motivations in joining the party, the applicant simply replied that he had been in the Student Federation of India, and later the joined the party (implicitly, because it was a logical progression). At the Department interview, the applicant gave a slightly more expansive account, saying that he saw the party as an opportunity to help poor people. The Tribunal had difficulty eliciting further insights as to what attracted the applicant to that party.

3. In relation to his activities and profile, the applicant said that he used to participate in ‘all the activities’, particularly during election campaigns. At the Department interview, he gave examples of his work, such as helping poor students and local residents, and campaigning (such as door-knocking and putting up posters). The applicant told the Tribunal that he did not have any contemporaneous evidence (such as photographs) from his period in the Student Federation or the CPI(M). As for specific campaigns, he recalled campaigning for a successful CPI(M) candidate for [Location 2] in the council elections (held in 2012 or 2013), and a range of activities during the 2016 election campaign. The applicant named his local member of parliament and some other politicians. He appeared to have the kind of local knowledge that a reasonably well-informed local resident or ordinary party member would have.  

4. The applicant confirmed that he did not hold any office. He did not have other photographs or evidence of his political activities. He referred to the photographs showing him with a black eye, stating that a friend had sent these images to him on [Social media]. As for other evidence on social media, the applicant said that he has lots of messages showing his links with the CPI(M), but he did not produce any such material.

5. In light of the CPI(M)’s prominent role in Kerala and the applicant’s consistent claims, the Tribunal accepts that the applicant supports the party, and that he may also be a member.

6. The applicant confirmed that he fears persecution as an ordinary member of the CPI(M), and not due to any other profile. He went on to say that it is ordinary members of the CPI(M) who are vulnerable to violence. He said that the party views these people as ‘martyrs’, in other words that they are dispensable. In his case, the BJP and RSS targeted him not because of any profile, but rather due to his individual conflicts which acted as a trigger for political violence.

7. The applicant later told the Tribunal that he supports the CPI(M) faction associated with the former Chief Minister of Kerala, Mr V.S. Achuthanandan, rather than the current Chief Minister of Kerala, Mr Pinarayi Vijayan. This appears to be a reference to the longstanding rivalry between these two prominent Kerala CPI(M) politicians. The applicant raised this issue only in response to the Tribunal’s puzzlement as to why the CPI(M), currently the largest party in Kerala, failed to protect him from BJP targeting on what he claimed were at least partly political grounds. The Tribunal accepts that the applicant may have a preference for one of the CPI(M) Keralan leaders over another. However, it considers that he raised this point only as an afterthought, when the Tribunal queried why he so readily dismissed his party’s willingness and capacity to protect him. The Tribunal is not satisfied that the applicant considers himself a member of any CPI(M) ‘faction’.

8. In sum, the Tribunal accepts that the applicant prefers the ruling CPI(M) and that he may have been an ordinary member of the party. The applicant’s evidence about his activities with the party was uncertain, vague and unsubstantiated, and the Tribunal is not satisfied that he had any involvement beyond his nominal membership (such as involvement in election campaigns).       

   Political violence

9. The applicant claims that in 2013 and 2016, there were several incidents when thugs associated with the Bharatiya Janata Party (BJP) and its right-wing ideological arm, Rashtriya Swayamsevak Sangh (RSS) attacked him him. Although the triggers appeared to have been personal disputes – over the applicant’s refusal to meet unions’ extortion demands, and his support for a neighbour who had fallen victim to a BJP politician’s illegal land grab – there was a significant political element to the incidents.

10. By way of general background, there is a large volume of country information about the extent of political violence in Kerala, and the applicant presented articles showing individual instances of this. Historically, two coalition fronts have dominated the state’s politics: the CPI(M)-led Left Democratic Front, and the Indian National Congress (‘Congress’)-led United Democratic Front. However, in recent years, the BJP has emerged as the third most popular party, albeit one without a coalition. As noted in a recent report,[10] ‘[…] the growing influence of the RSS and the BJP nationally has led to increased violence as they seek to expand influence in Kerala.’ Political and communal violence has taken the form of political murders, attacks on the properties and homes of rival political parties, and gruesome assaults, often involving swords and homemade bombs’.

    [10] ‘Kerala's political murders tarnishing image of India's 'God's country'’, ABC News, 27 August 2017, CXC90406612831   

11. The Tribunal’s survey of recent reports indicates that the violence sometimes involves party cadres, and that seemingly minor disputes can escalate and take on a political character, as the parties trade blows. In relation to conflict between persons linked with the ruling CPI(M) and the BJP-RSS, reporting indicates that both sides have been perpetrated violence, and that it is ongoing.[11]

    [11] ‘Kerala political killings continue unabated as CPI(M) and RSS trade blame rather than rein in cadres’, Scroll.in, 11 May 2018, CXBB8A1DA27066; ‘Kerala's political murders tarnishing image of India's 'God's country'’, ABC News, 27 August 2017, CXC90406612831  

12. In a similar vein, the applicant characterised the conflict between the CPI(M) and the BJP as a kind of ‘civil war’, and at the Department interview, said that some 500 people had died in his village. At hearing, he clarified that hundreds had died in the state of Kerala during the past decade or so; he did not mean to imply that this had been in his home village or within a short time frame. Overall, country information supports the applicant’s claims about political violence in Kerala, although he appears to have exaggerated this. This forms important background for an assessment of his claims about his own experiences.    

    Extortion demands and violence: 2013

13. The applicant claims that sometime in 2013[12], workers were unloading produce into his [product 1] shop. They were members of the Bharatiya Mazdoor Sangh (Indian Workers’ Union), the RSS’ labour wing. They demanded donations from him, ostensibly to help people suffering from the drought and water shortages. The applicant made a small donation, but they demanded more. The applicant refused (in part, because his business was still in its early phase, and was not producing much income). They assaulted him, and hit him on the head with a pole, injuring his eye.

    [12] The applicant estimated this to have occurred ‘about 6 months after the election campaign’. He did not identify which election campaign this was. The Indian general elections were held in 2009 (and again in 2014); the Kerala Legislative Assembly elections were held on 13 April 2011.

14. The applicant claims that these people would have known about his support for the CPI(M), implying that both their demands and their violent response had underlying political motives.

15. At hearing, the applicant explained that the government labour supply office used to provide workers to load and unload goods for local businesses. These workers were members of one of three trades unions, each affiliated with one of the major political parties. The arrangement was that teams from the various trades unions took turns in making deliveries, and the businesses would pay them through the government labour supply office. Meanwhile, it was common practice for unionists to request ‘donations’ for their respective parties, i.e. bribes. The applicant said that he used to make payments to each of the unions, an equal amount to each of them.

16. In the course of the exchange, the applicant said that his business was in [Location 4], a heavily populated area where crime was a problem. All the businesses had to deal with these kinds of demands from the parties/unions. The Tribunal was unable to elicit further detail about the experiences of other local businesses, such as whether they also had violent disputes about the amount of their donations. The applicant said that the BJP/RSS union targeted him because he was the only local businessman supporting the CPI(M). The Tribunal signalled its surprise at this claim, given the CPI(M)’s state-wide popularity. 

17. The applicant claimed that some men attacked and seriously injured him, such that he needed medical treatment in [Hospital] for six months. He has ongoing problems with one eye as a result of the attack. The business remained closed for about two months, and he then sold it. He said that he had no income during his recovery period, but lived off savings.

18. The Tribunal explored with him whether there were any independent reports or other corroborative evidence of the attack, or its aftermath.

    §   As for hospital records or receipts, he said that the incident occurred a long time ago, and he did not think to keep any paperwork.

    §   The applicant said that he reported the incident to the police, but did not offer further details or supporting evidence.

    §   He went on to say that local political leaders (from the rival CPI-M and BJP) met to discuss the issue and reached some kind of compromise. This happened while he was in hospital. The applicant was not involved in the discussions, and, by implication, has no further information about the outcome. Asked whether his former CPI-M party colleagues might have details or supporting evidence (such as the minutes of any talks), the applicant replied that he does not like to call on them to help him with these kinds of personal matters.

    §   As for any local press coverage or other publicity, the applicant said that the attack happened in front of local people, implying that word spread quickly. He thought it had appeared in the local newspaper, and he would try to obtain a copy of that.

    §   The applicant said that he lodged a complaint with the Human Rights Commission, and that he may be able to obtain a copy of his correspondence.

19. The applicant said that, after his recovery, he resumed his work for the CPI(M), such as serving on various committees. As for any photographs, social media references or other evidence arising from this period, he showed the Tribunal a photograph on his mobile telephone that a friend had recently sent him, showing some young men who, he said, were working for the current CPI-M representative. He said that he did not have photographs or other contemporaneous evidence showing his own political involvement in political activities. He commented that he had taken some photographs, but he was not included in the images. He also said that he had not accessed his [Social media] account for some time, and was not sure whether it is still active.

20. The applicant provided photographs that appear to show him with a black eye and an abrasion on his forehead. He said that, in addition to the injuries visible in the shot, he suffered injuries to the skull, which required long-term treatment. He said that a friend sent him these images through [Social media]. The images do not contain any contextual information, such as when or how the injuries occurred.

21. The Tribunal noted the applicant’s claim that he had sold the [product 1] business after the attack, and later worked casually [in various roles]. It wondered what his level of political activity was, now that he had to undertake casual labour to meet his expenses. The applicant replied obliquely that he has done hard physical work, as his hands show. 

22. Assessment: The Tribunal has significant concerns about the completeness and reliability of this claim. It has little more than the applicant’s description of what occurred, and some photographs that appear to show him with a black eye. As noted above, there was no context as to whether this type of incident occurred to other businesspeople in [Location 4], or the applicant’s political friends. There was minimal detail or supporting evidence of his prolonged hospitalisation; his income during this period; his efforts to seek police help; any appeal to political colleagues for help; any press or similar reporting of the attack; or the alleged negotiations that the CPI(M) and the BJP held to calm tensions. The Tribunal has noted the applicant’s comments on these shortcomings in his evidence. While some of these appear reasonable in the circumstances (such as his inability to retrieve hospital documents or receipts), they do not resolve the Tribunal’s broader concern that the applicant did not appear to be genuinely engaged in trying to explain and substantiate his claim that he was the subject of a violent attack that was essentially political in nature.

23. The applicant’s continued stay in the local area, without apparent incident until 2016, adds to the Tribunal’s doubts that unionists associated with the BJP/RSS attacked the applicant in 2013.

24. The applicant’s account of having to make payments to unions associated with political parties is broadly consistent with general country information about high levels of corruption in India, including extortion demands on businesses. While he may have been drawing to some extent on personal experience, the Tribunal does not accept on the available material that BJP/RSS unionists singled him out in 2013 because he was a CPI(M) member or supporter, or because he refused to make larger donations.

25. Similarly, the Tribunal accepts that the applicant suffered a black eye and other facial injuries, as shown in the images he presented. However, the photographs do not reveal when the injuries occurred, in what circumstances or whether they were the product of an accident, physical assault or some other incident.

26. Given the extent of the Tribunal’s concerns, set out above, the Tribunal does not accept that BJP/RSS unionists attacked the applicant in 2013, singling him out because he was a CPI(M) member or supporter (or for his failure to make bigger donations); that he was in hospital for six months following such an attack; or that he sought protection from the CPI(M), the local police or others, without any effective response.

27. The Tribunal accepts, on the basis that it is plausible, that the applicant shut down his [product 1] business in 2013, and that demands for bribes from unionists and others may have been one element of the business environment that influenced his decision. However, the Tribunal does not accept that BJP/RSS unionists forced him to close his business in 2013.

    Land dispute and assault: 2016

28. The applicant claims that in 2016, there was a land dispute involving his neighbour, a woman who was living on her parents’ property following their deaths. A local BJP leader, [Mr A] had forged documents so that he could seize the property. The applicant, seeing the injustice, provided the police with a statement in support of his neighbour. [Mr A] warned the applicant not to get involved.

29. The applicant claims that [Mr A] made plans to have the applicant killed. One day, some five or six BJP cadres went to attack the neighbour. The applicant intervened to protect her. During this incident, he managed to run away, but the attackers caught him, sliced part of his leg with a large knife, and threatened to kill him.

30. The applicant expanded on these claims at hearing. He said that his neighbour (‘[Ms B]’ in this decision) was in the midst of a land dispute with [Mr A], whom he described at one point as [Ms B]’s ‘uncle’s son’. [Mr A] had arranged for BJP people to forge documents, implicitly by changing the names on the title deeds. One day, the applicant was with [Ms B] in her home discussing the issue. Two women came to the door, and told [Ms B] to vacate the property. It turns out that a total of five people had driven to the property by car. The remaining people were armed, and tried to attack the applicant and [Ms B]. The applicant managed to escape, and ran back home. The attackers followed, and managed to stab him in the leg. He later required three stitches.

31. The applicant produced two brief videos, one of about 20 seconds and one of just under three minutes, which related to the incident. The applicant said that the police attended the scene, and apprehended two of the culprits, including one of the women who first went to [Ms B]’s home.

32. The Tribunal discussed the two videos with the applicant. They show a [colour deleted] car, and at one point the camera zooms in to show what appear to be two weapons or tools under the car mat under the driver’s seat. A group of people surround the car, including a number of police officers. There is considerable discussion and movement, but the applicant did not identify any statements that shed light on what is occurring. The police appear to be attending the scene of an incident, with bystanders offering comments. The applicant pointed out one woman in the video, who he identified as one of the culprits. She appears to be the subject of attention from the police and bystanders, and to be somewhat upset. The applicant also identified himself in the shorter video. He gestures toward the vehicle and the woman, as if identifying them to the police. There is a bandage around his left ankle, but he does not limp or show any other sign of this being a recent injury.   

33. The applicant claimed that he and others handed over the two suspects to the police, who took them away by car. However, the police accepted a bribe and released the suspects. Asked how he knew that the police had accepted a bribe, the applicant said that they released the suspects without charge (in other words, he surmised that a bribe was involved in their release).

34. The applicant said that he filed a police report, but they took no action. He then complained to the Human Rights Commission. He said that his mother is currently looking for a copy of that complaint.[13]

    [13] It was not clear whether this was a second complaint to the Human Rights Commission, or whether the applicant was mixing up the events in 2013 and 2016.

35. In further discussion, the applicant said that he does not know [Mr A]’s full name, commenting only that he is well-known just a [Mr A], a local BJP leader with property interests. He said that [Mr A] has now ousted [Ms B] from the property. He said that this is his pattern of behaviour, seizing and then selling other persons’ properties.

36. The Tribunal raised a number of issues: (a) that the applicant had not made further enquiries about the full name and details of his alleged persecutor; (b) whether [Mr A]’s animosity towards the applicant had any political element, or was merely a case of him trying to remove an obstacle to his seizure of [Ms B]’s land; and (c) why, if [Mr A] had now disposed of the land, he would have any further adverse interest in the applicant. The applicant said that [Mr A]’s pursuit of him is a continuation of the BJP’s misuse of their political power to remove opponents. He is sure that [Mr A] remains angry and will seek vengeance.

1. The Tribunal accepts, on the basis of the applicant’s reasonably consistent evidence over time, that he helped a neighbour who was involved in a land dispute. It also accepts, based on the videos, that he once helped the police identify a woman and [colour deleted] car suspected of being involved in some criminal activity (such as an assault or forced entry) in his local area. It accepts that, at the time of the police attendance, the applicant had a bandaged left ankle.

2. However, there is no clear link between the applicant’s assistance to a neighbour in a land dispute, and the police attendance at a scene where the applicant and others appear to be holding the woman as a suspect and investigating the vehicle. The Tribunal is also unable to determine the circumstances in which his left ankle came to be bandaged, but given that the applicant has no limp or other apparent injuries, it is not satisfied that it arose from a knife attach immediately prior to the police arrival at the scene. And critically, there is no obvious link between any of these incidents, and a local BJP leader named [Mr A].

3. Given the extent of the Tribunal’s concerns about the applicant’s credibility overall, and the specific issues set out above, the Tribunal does not accept that the applicant was involved in a land dispute (on behalf of a neighbour) with a local BJP leader, whose agents chased and injured him; and who has a lasting enmity towards the applicant (due to his intervention in the land dispute, his support for the CPI(M), or any combination of such factors).    

   Consequences of the alleged 2016 assault

4. The applicant claimed that, after this attack, he fled to Bengaluru (Bangalore), where he stayed for some six to eight months, working in a [factory]. However, some BJP supporters from Kerala saw him there, and informed the local BJP office. Realising he was unsafe there, he went to Chennai (Madras) for a few months. He explained that he started his preparations to leave India while in Chennai.

5. Meanwhile, however, in 2017, he returned to [Location 1] to visit his mother. The applicant claimed that following his departure from [Location 1] in 2016, [Mr A]’s thugs had been harassing and threatening his wife and his mother. This is what prompted his wife to initiate divorce proceedings.

6. The Tribunal is not satisfied that the applicant has given a reliable account of his activities in India following the land dispute. In any event, it does not accept that he fled [Location 1] because of the (now-rejected) physical assault there in 2016, or any ongoing fear for his safety from [Mr A] or his agents. It also does not accept that he was in hiding in Bengaluru, and that he fled that place after seeing some BJP supporters from Kerala there. Nor does it accept, in light of the above findings, that his wife and his mother were subject to any ongoing harassment and threats; or that such treatment had any role in his separation from his wife and her later filing of divorce papers.

7. The applicant’s return to [Location 1] in 2017 reinforces the Tribunal’s conclusion that he did not experience persecution or significant harm there, and did not genuinely fear such harm. While the applicant explained that he risked this to visit his mother – in part because his brother did not care for her – this does not resolve the Tribunal’s concerns as to why he now claims that he is unsafe in all of India.

   Implication in the murder of a BJP supporter: July 2017

8. The applicant claims that, around the time of his return to [Location 1], CPI(M) cadres were implicated in the killing of a BJP person (RSS activist), Rajesh, who happened to be the applicant’s old school friend. Two days prior to Rajesh’s killing, the applicant had visited him and his family at their home.

9. The police interviewed the applicant as a potential suspect (given his links with the CPI(M)). The applicant denied any involvement, and the police took no further action against him. However, the police arrested a number of suspects, and the applicant speculated that he might be next. He feared that his CPI(M) links and his dispute with [Mr A] would make him vulnerable to being (falsely) implicated in the killing.

10. In his statement of claims, the applicant claimed that he had multiple fears arising from the killing:

    §   First, as noted above, he feared that [Mr A] or other BJP people would be motivated to pin the murder on him (because of his involvement in the land dispute and his membership of the CPI(M)).

    §   Second, he feared that that the BJP would seek revenge and target him; in other words, they would punish him extra-judicially. In this regard, he feared that the police would turn a blind eye to any such violence, as the BJP would bribe them.

    §   Third, he feared that CPI(M) members might ‘betray’ him to the BJP. 

11. The applicant submitted a partial photocopy of an article from India Today about the murder of an RSS worker named Rajesh, in Trivandrum, late on 29 July 2017.[14] The full article states that a six-member gang hacked Rajesh to death in the evening; that the BJP alleged CPI(M) involvement in the attack; and that the BJP had called for a state-wide hartal (general election) in response to the murder.

    [14] India Today on-line: Kerala: RSS worker hacked to death in Thiruvanananthapuram; police begin investigation,

12. The applicant gave further details at hearing. He said, in response to the Tribunal’s question, that Rajesh was about the same age as him. The Tribunal pointed out that, according to the headline of the (partial) article that he had provided, Rajesh was 34 years old when he was killed, much younger than the applicant (who was [age] years old at the time). The applicant reiterated that Rajesh was his age, and the reporter must have made a mistake. Asked if he was aware of any other mistakes in the public reporting on Rajesh’s killing, the applicant guessed that they might have made a mistake in relation to his education. The Tribunal signalled its disquiet about these responses.

13. The applicant’s implication in the murder: The applicant said he was aware of some seven or eight CPI(M) people having been charged in relation to the killing. He said that the police initially interviewed him, but did not lay any charges or investigate the matter further. In response to the Tribunal’s observation that, if true, that suggested they had no suspicions about his role, he said that [Mr A] is trying to implicate him in the murder, in his quest for vengeance. Some friends in the BJP had told him that [Mr A] has made a plan, and spoken to the media, with a view to eventually having the applicant charged.

14. The applicant’s subsequent conduct: The applicant said that in the period between Rajesh’s murder (29 July 2017) and his (the applicant’s) departure from the village in about April 2018, he stayed with his mother in the village. He said that he sometimes attended CPI(M) meetings. As for whether his party would have been willing to assist him (if there were any specific allegations), the applicant replied briefly that they do not want to get involved in such matters. The applicant confirmed that nothing happened to him during this eight-month stay in his village. However, he said that political violence was an ongoing problem during. He started to realise that [Mr A] and his people were ‘planning something’, and decided to leave his village for safety.   

15. The applicant presented several articles concerning other political murders in Kerala, both specific cases and general surveys of the violence in the state. He confirmed, and the Tribunal is satisfied, that these did not involve him personally, but that he had submitted them as illustrations of the general violence facing CPI(M) and BJP/RSS activists.

16. Risks in other parts of India: The Tribunal discussed with the applicant whether – if he were concerned about [Mr A] or the local BJP/RSS activists – he had considered living in another part of India. It noted the large populations of Kerala (at least 34 million), Tamil Nadu (at least 67 million) and Bengaluru (more than 12 million); the circumstance that he had spent the previous eight months in his village without major incident; and the lack of any adverse incidents while he was living in Chennai. He replied that the BJP is popular in many parts of Kerala and India; there are factions within his own party; and he fears that BJP activists could sight him anywhere in India, and report this back to his enemies in [Location 1], who could in turn initiate action against him.

17. The Tribunal has significant concerns about these claims.

    §   First, the Tribunal is surprised, if the applicant was a personal friend of Rajesh’s, that he did not realise either (a) that Rajesh was [younger] than him; or, alternatively (b) that the article he had presented to the Tribunal incorrectly stated Rajesh’s age.

    §   Second, even if the police had interviewed the applicant in relation to the murder (although the Tribunal does not accept that is the case), the circumstances that they brought charges against others and did not follow up at all with the applicant strongly suggest they had no further interest in him.

    §   Third, the Tribunal considers the applicant’s most recent speculation that [Mr A] might be working behind the scenes to implicate him in the murder to be contrived and lacking in credibility. Similarly, his earlier claims that the BJP might seek to punish him extra-judicially, or that his own party (or a faction within it) might betray him to the BJP, lack context or credibility.

    §   Fourth, the applicant continued to live in his home village for some eight months following Rajesh’s murder. [Mr A], his agents and other BJP/RSS people would have had ample opportunity to locate and harm him, if they had wanted to. The lack of any follow-up reinforces the Tribunal’s doubts about this claim.

    §   Finally, the Tribunal disbelieves the applicant’s suggestion that, after realising (or hearing through sources) that [Mr A] might yet be planning to target him, he concluded that it was no longer safe, not just in the village, but throughout Kerala and all of India.   

18. These concerns, taken together, lead the Tribunal to conclude that the murder of Rajesh in July 2017 had nothing to do with the applicant; that the police did not interrogate him; that he had no related fears of harm from [Mr A], other BJP figures, his own party or the Indian police or other authorities.

    Departure from India

19. The Tribunal finds that the applicant departed India for reasons unrelated to his low-level support for and membership of the CPI(M); any physical injuries that he may have suffered in the preceding period (which it does not accept was the result of a BJP-led targeting of his [product 1] business); any involvement he may have had in resolving a local land dispute (including the arrest of persons who threatened a neighbour); and the murder investigation of Rajesh (which was unrelated to him). The Tribunal accepts that the applicant is concerned about the high level of political violence and corruption in Kerala generally, and that these may have been factors in his decision to travel abroad. However, it does not accept that he departed India fearing persecution for any reason set out in s.5J(1), or fearing significant harm.  

    Summary of findings

20. The Tribunal makes the following findings of fact:

    §  The applicant is a supporter and ordinary member of the CPI(M), currently the largest political party in Kerala. He has not participated in any other political activities.

    §  The Tribunal accepts that the applicant, when he operated a [product 1] business, was subject to demands for bribes, including from workers who made deliveries. However, the Tribunal does not accept that such persons singled him out in 2013 for political reasons; that they seriously assaulted him; or that he lost his business due to such an assault or due to his fear of being subject to any further political violence.

    §  The Tribunal accepts that the applicant helped a neighbour in a land dispute, but does not accept that the protagonist was a local BJP politician who had his agents pursue and injure the applicant due to his intervention in the dispute, or for any political reasons. It also does not accept that this BJP person, [Mr A], has any ongoing drive to pursue the applicant, for personal vengeance, political or any other reasons.

    §  The Tribunal does not accept that the applicant has any link with the murder BJP/RSS activist Rajesh, who was murdered in July 2017; or that the police questioned him about the murder; or that [Mr A] or other BJP persons are seeking to implicate him in it. Similarly, the Tribunal does not accept that other BJP members plan to punish the applicant in relation to the murder; or that the applicant genuinely suspects that other CPI(M) members, for instance from the factions, might ‘betray’ him.

    §  The Tribunal accepts that the applicant suffered a black eye and other facial injuries on one occasion. But it is not satisfied that this occurred during any physical assault by BJP unionists or activists; or that this is related to his other protection claims. Similarly, the Tribunal accepts that the applicant suffered an ankle injury (as evidenced in the video), but it does not accept that BJP activists caused this when they were chasing him over a land dispute, and cutting his leg with a knife.

    §  The Tribunal accepts that the applicant was present and assisted the police when they came to investigate the scene of a local crime, involving a car, some concealed weapons and at least one woman. However, the Tribunal does not accept that this incident involved [Mr A]’s pursuit of his neighbour or the applicant, or that the applicant was victim of any intimidation or physical violence. It finds that the incident was unrelated to the applicant’s protection claims.

    §  The Tribunal does not accept that the applicant left India in May 2018 fearing for his safety, in connection with any of his protection claims. It accepts, however, that some of the factors he alluded to – the challenging business environment, corruption and general security problems (including political violence, and criminality) – may have influenced his decision to seek opportunities abroad.

    ASSESSMENT: REFUGEE CRITERION

21. The Tribunal now assesses whether, in light of the above findings of fact, and having regard also to any other relevant factors – in particular, country information and the applicant’s future conduct – there is a real chance of him experiencing serious harm amounting to persecution for one or more of the reasons set out in s.5J(1), if he returns to India.

22. Asked about his future conduct if he returns to India, the applicant said that he has nowhere to go, as it is unsafe everywhere. He said that he no longer has his house in Trivandrum. The applicant said that his brother had persuaded their mother to hand over the family home to him. The brother has now forced her to live with relatives, and expects the applicant to take care of her. The Tribunal was unable to draw the applicant further on his plans in India, if he were to return there. On the limited available evidence, it considers that he would likely go back to Kerala, Bengaluru or Chennai, and seek casual employment or business opportunities in one of those places. The Tribunal considers it likely that the applicant will retain his nominal membership of the CPI(M). However, it is not satisfied that this has been a high priority for him in the past, or that he will pursue it in the short term.

23. The Tribunal’s findings of fact are immediately above, at paragraph 94. It concludes that, although the applicant may have drawn on actual facts to some extent (for instance, his membership of the CPI(M), his experiences as a businessman, past injuries he has suffered for other reasons, and instances of past criminal and political violence in his local area), he was not the target of BJP unionists or a local political figure; he did not experience serious harm for any related reason; and he did not depart India fearing persecution for any s.5J(1) reason.

24. As a result, the Tribunal finds that there is no real chance of BJP figures – [Mr A], agents acting on his behalf, unionists or others – pursuing and inflicting serious harm on the applicant for any reason arising from his past experiences or profile. It also finds that there is no real chance of anyone – including other BJP activists, or persons within the CPI(M) – seeking to implicate the applicant in the murder of Rajesh, or punishing him. The Tribunal concludes that there is no real chance of the applicant being subject to serious harm amounting to persecution, arising from his protection claims. In these circumstances, it is unnecessary for the Tribunal to determine whether the essential and significant reason for the feared harm is one or more of the grounds enumerated in s.5J(1)(a), or whether there is a real chance of persecution in all parts of India: s.5J(1)(c).

25. The Tribunal has accepted that the applicant is a supporter, and may be a member of the CPI(M). Although political violence is endemic in Kerala, the Tribunal is not satisfied that the applicant’s low level of political interest gives rise to a real chance of BJP/RSS or other political activists inflicting serious harm on him.   

26. The Tribunal is satisfied, and finds, that the applicant’s protection claims drew in part on his personal experiences or concerns. These include concerns about corruption, the extortion of businesses, instances of political violence, and broader law and order problems (of the kind that he referred to in [Location 4], where he had his [product 1] business). However, the Tribunal is not satisfied that he faces a real chance of persecution arising from such general conditions. Also, for the main part they do not involve serious harm to the person, as required by s.5J(4)(b); they do not involve systematic and discriminatory conduct: s.5J(4)(c); and the essential and significant reason does not lie in any of the five grounds set out in s.5J(1).   

27. The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. It finds he does not face a real chance of serious harm amounting to persecution in his home area, Kerala or India as a whole, for any reason. It is therefore not satisfied that he applicant has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1), now or in the reasonably foreseeable future, if he returns to India.

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

    ASSESSMENT: COMPLEMENTARY PROTECTION

29. The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to India.

30. The Tribunal takes into account the above findings of fact; its view of the applicant’s future conduct; and country information about general conditions in India. It finds that there is no real risk of him being subject to significant harm arising from the protection claims set out above, including from any political or personal animosities in his local area.

31. As noted above, the Tribunal accepts that the applicant has some concerns about living conditions in Kerala and India generally. However, he has operated a business, had various forms of employment and lived in different parts of southern India, and the Tribunal is not satisfied that he has suffered significant harm. Having regard to his personal circumstances and general country information, the Tribunal does not accept that he faces a ‘real risk’ of significant harm if he returns to India.  Also, these issues apply to a greater or lesser degree through most of India, and affect the population generally. Given the Tribunal’s conclusion that the applicant does not face a real risk of significant harm, it is unnecessary to consider whether s.36(2B)(c) applies such that there would be taken no to be a real risk to him personally.

1. The Tribunal concludes that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. In other words, the Tribunal finds no other grounds that suggest he will be subject to significant harm, for any reason, if he returns to India.    

2. Accordingly the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm: s.36(2)(aa).

   CONCLUSION

3. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

4. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

   DECISION

6. The Tribunal affirms the decision not to grant the applicant a protection visa.

   James Silva
   Member

   
   

   ATTACHMENT A – 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 (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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.