1903495 (Refugee)

1903495 (Refugee) [2023] AATA 1340 (28 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1903495
COUNTRY OF REFERENCE:                   India
MEMBER:Member Nathan Goetz
DATE:28 February 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 February 2023 at 11:43am
CATCHWORDS
REFUGEE – Protection visa – India – fears harm in India by his (now ex) wife’s former husband – physical attacks perpetrated on the applicant in India – failure to detail other specific instances of harm experienced in India –manufactured claim to support his application for protection – delay in applying for protection in Australia – credibility concerns – decision under review affirmed

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

This is an application for review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the applicant a protection visa.
The applicant identifies as a [age]-year-old male citizen of India presently located in Australia.
On 14 December 2018 the applicant applied for the protection visa. On 1 February 2019 the delegate refused to grant the visa on the basis that the applicant did not satisfy either s 36(2)(a) or (aa) of the Act.
On 15 February 2019 the applicant applied to the Tribunal for review of the decision.
On 14 February 2023 the applicant appeared at a Tribunal hearing by audio-visual link via MS Teams so he could give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was obligated to invite the applicant to appear at a Tribunal hearing because the Tribunal decided that it should not make a decision favourable to the applicant based on the material it had: s 425(1) of the Act. The Tribunal determined that an appearance by MS Teams was appropriate as the applicant was located in an immigration detention centre.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The most recent Country Information Report for India is dated 10 December 2020.
CONSIDERATION OF EVIDENCE
Identity, country of reference and family
In the protection visa application form, the applicant claimed that he was born in Yamuna Nagar town/city, Haryana province/state, India. He claimed Indian citizenship and no citizenship of any other country, nor a right to enter and reside in any other country. He can speak, read and write Hindi and English, and is able to speak Punjabi.
He detailed that he was married on [date] March 2008 in India to [Ms A]. They divorced in 2016 in Australia. [Ms A] had a daughter from a previous relationship and the applicant identifies this daughter as his stepdaughter. With [Ms A], he had two daughters [born] in [year] and [year] respectively. Department records demonstrate that the applicant’s (now) ex-wife, his former stepdaughter and two daughters were granted protection visas on 18 May 2016.
He also detailed that he commenced a de facto relationship with Ms [B] in 2012 in Melbourne, but the couple separated in 2016. Together they have one [child] who was born in [year]. Department records demonstrate that [Ms B] and the applicant’s daughter are both Australian citizens.
Migration history
At the Tribunal hearing, the applicant confirmed his migration history as follows:
On 23 December 2008 the applicant was offshore and applied for a student visa. He was a dependent on [Ms A]’s visa. This was granted on 2 April 2009. The applicant arrived in Australia holding this visa on [date] June 2009. That visa ceased on 30 September 2011.
On 19 September 2011 the applicant applied for another student visa. He was a dependent on [Ms A]’s visa. He was granted a bridging visa to regularise his migration status in Australia until the student visa application was finally determined. On 15 May 2012 the student visa application was refused. On 24 May 2012 the applicant applied to the Tribunal for review of the decision to refuse to grant him the student visa. On 30 September 2013 the Tribunal affirmed the decision to refuse to grant the student visa in MRT case: [deleted]. On 6 November 2013 the applicant’s bridging visa ceased. On 13 December 2013 he was granted a bridging visa on the basis that he was going to lodge a partner visa.
On 18 December 2013 the applicant applied for a partner visa as the spouse of [Ms B]. On 19 December 2013 he was granted a bridging visa to regularise his migration status in Australia pending his partner visa being finally determined. On 18 July 2017 a delegate refused to grant the partner visa. On 29 August 2019 the applicant applied to the Tribunal to review the decision to refuse to grant him a partner visa. On 5 December 2019 the Tribunal finalise the review on the basis that it had no jurisdiction to review the decision: AAT case [deleted]. On 18 December 2019 the applicant’s bridging visa ceased.
On 17 October 2018 the applicant applied for a protection visa. On 23 October 2018 a delegate determined that the protection visa application was invalid.
On 14 December 2018 the applicant applied for the protection visa that is subject of the review. On 1 February 2019 the delegate refused to grant the protection visa.
Protection claims
During the course of applying for the protection visa, and the course of applying for review of the decision to refuse to grant the protection visa, the applicant submitted various documents in support of his protection claims, which consisted of letters and what he claimed were corroborative documents that supported his claims.
At the Tribunal hearing, the Tribunal sought clarification about the applicant’s protection claims because in some of the written letters, the applicant had put forward reasons that he should remain in Australia that did not appear to be related to his protection claims, such as expressing a desire to remain in Australia to ‘prove that he had rehabilitated himself and look after his daughters’ (statement dated 15 February 2021). This was obviously a reference to the fact that the applicant had a criminal history in Australia, which he detailed in the protection visa application form as an unlawful assault, aggravated burglary, intentionally causing serious injury, breach of a domestic violence order.
Similarly, in an undated letter to the Tribunal, where the applicant referred to a letter of the Tribunal dated 12 March 2019 which he asserted asked for further information about his visa application, the applicant detailed that he belonged to a poor family and when his father passed away he did not attend his funeral which was why he had been discarded by his community, that he had no one in India, and that he had three biological children in Australia. He detailed being ‘bullied’ by his (now) ex-wife [Ms A] in Australia, detailed the circumstances of their relationship breakdown, as well as the circumstances that lead to the breakdown of his relationship with [Ms B].
At the Tribunal hearing, the applicant confirmed that his only claim that he was advancing in support of his protection claims was that he would be harmed in India by his (now ex) wife’s former husband, who he identified as [name].
In the protection visa application form, the applicant detailed that he left India because ‘our life had been threatened in India on various occasions.’ He claimed that he and his wife had no choice but to leave India. He claimed that he was physically harmed by [Ms A]’s ex-husband. He claimed that in the second week of April 2007 he visited his parents and went for dinner. A few guys approached him when he was outside and assaulted him after asking for the applicant by name. The applicant wrote that he was attacked with a sword and that he still has a scar on his left hand as a result of stitches. He claimed that he went to police but did not receive any help and that his complaint was ignored. He claimed that, even after he made this complaint to police, he received threatening calls on a daily basis. He claimed that he and [Ms A] changed telephone numbers and moved from ‘one place to another’ but that [Ms A]’s ex-husband contacted them and followed them. The applicant claimed that [Ms A]’s ex-husband wanted to harm him because he warned the applicant to keep away from [Ms A] and did not want them to be married. [Ms A]’s ex-husband was jealous, and they never obtained his consent for the applicant’s stepdaughter to leave the country.
In a written statement received by the delegate on 17 December 2018, the applicant wrote that it was in April 2008 that he visited his parents and was attacked, and he referred to various telephone calls of a threatening nature that were made to him by his (now) ex-wife’s ex-husband.
The applicant provided to the Tribunal what he claimed were corroborative documents that supported his claims.
·     One was a letter written in a language other than English with an accompanying English translation by the applicant himself. The applicant’s translation suggests that it was a complaint made to police by the applicant where he declared that on 29 March 2008, he was having dinner when he was attacked with a sword which resulted in injuries requiring stitches.
·     One was a letter written in a language other than English with an accompanying English translation by the applicant himself. The applicant’s translation suggested that it was a complaint made to police by the applicant where he declared that on 18 July 2008, he dropped his wife at home and his (now) ex-wife’s ex-husband attacked his car and threatened to kill the applicant.
·     One was a letter written in a language other than English with an accompanying English translation by the applicant himself. The applicant’s translation suggested that it was a complaint made to police by the applicant where he declared than on 20 September 2008 he and his wife were walking to a market when his (now) ex-wife’s ex-husband, together with others, surrounded them. A gun was produced by the ex-husband and the applicant was badly beaten. His attackers ran away when other people intervened to save the couple.
As these claimed corroborative statements were not included in the original protection visa application form and were only submitted to the Tribunal in the course of the review, the Tribunal asked the applicant how he came to obtain those documents. The applicant told the Tribunal that he obtained the police reports when he was in India but did not bring them with him when he departed India because he had ‘too many papers’ to carry. He put those documents into his email but suggested he could not access his emails and that he arranged a friend to send those documents to him. Subsequent to the Tribunal hearing, the applicant a person named [Ms C] emailed the Tribunal who confirmed that on 23 January 2021 she received three emails with attachments, and she forwarded these in hardcopy to the applicant. The applicant also said that he could not include those documents with his protection visa application because he was in custody at that time, despite the applicant being able to include other documents such as photographs, a written statement, and a telephone transcript when he completed the protection visa application.
The Tribunal was suspicious of the timing of the production of these claimed police reports. The applicant disputed that they were not genuine, and he claimed that he had no reason to lie.
Relevant to those reports about claimed instances of physical attacks perpetrated on the applicant in India, at the Tribunal hearing the applicant claimed that:
The first time he was physically attacked was on 28 July 2007. He detailed that this was the incident with the sword which occurred when he and his (now) ex-wife were visiting family. Noting that this was the incident which resulted in the applicant obtaining 14 stitches, the Tribunal queried the applicant had not provided corroborative medical evidence to support this claimed attack. The applicant said that he was not aware of the need to provide a medical report and that in any event, doctors do not provide those sorts of reports.
The second time he was physically attacked was in August 2008. He described this as occurring in circumstances where he was going to work and a group of people, including his (now) ex-wife’s ex-husband were in a car, when two people alighted from the vehicle and assaulted him.
The third time he was physically attached was on 29 March 2009. He detailed that this was the attack referred to in an earlier statement when his (now) ex-wife’s ex-husband produced a gun.
The Tribunal was troubled by several aspects of the applicant’s evidence about the past physical harm he claimed that he had suffered in India at the hands of his (now) ex-wife’s ex-husband.
First, in the protection visa application form, the applicant only declared one physical assault occurring, namely that where he had been attacked with a sword which required stitches. To the Tribunal’s way of thinking, if he had been physically attacked three times as he claimed in his oral evidence to the Tribunal, he would have noted each attack in his protection visa application form where he was asked whether he experienced harm in India.
The applicant told the Tribunal that he did not detail the three instances in his protection visa application form because his ‘case manager’ suggested to the applicant that he put down one incident, and the applicant was ‘guided’ by this person. The Tribunal understands this person to be some sort of welfare officer either in the prison or immigration detention centre where the applicant was detained at the time, he lodged his protection visa application.
Second, the applicant provided inconsistent evidence about the dates of the physical attacks she claimed to have suffered. In his protection visa application form, the one physical attack he disclosed was said to have occurred in April 2007. In a subsequent written statement, it was said that this occurred in April 2008. In the police report it was asserted as occurring in 29 March 2008 (thought the applicant claimed at the Tribunal hearing that this was an error in his own translation of the date in the police report) dated 29 March 2008 (which the tribunal observes is written in English in the original). At the Tribunal hearing, the applicant said this incident occurred in July 2008. To the Tribunal’s way of thinking, if the applicant was recounting his owned lived experiences, he would provide consistent evidence about something as basic as when the first attack occurred.
The applicant told the Tribunal that the inconsistency about the date was due to ‘medication’ and he was ‘not aware of the date.’
The Tribunal was also troubled by the fact that despite the applicant’s claimed past experiences of harm in India, and his assertion in the written materials that he ‘relocated’ to avoid harm, the residential history the applicant detailed in the protection visa application form only discloses that he lived in two places from February 2000 to June 2009, both of which were identified as being in [Locality 1], which the Tribunal understands to be in Ghaziabad district, Uttar Pradesh, India.
The applicant told the Tribunal hearing that the residential address he detailed was where he and his wife had their property, but they were not ‘living at the same place.’ A fair reading of the residential history demonstrates that the applicant lived in ‘[Locality 1]’ from February 2000 to May 2008 and then ‘[a] city, [Locality 1]’ from May 2008 to June 2009. The applicant told the Tribunal that he did not particularise the exact places where he lived because he had ‘no money to hire a lawyer’ and that it was his mistake.
The Tribunal also explored with the applicant the timing of his departure from India, noting that the student visa had been granted on 2 April 2009, but the applicant delayed departing India for just over two months. This suggested to the Tribunal that the applicant had not been harmed as claimed. Given that the applicant claimed at the Tribunal hearing that the last time he was physically attacked was in March 2009, the Tribunal did not understand why the applicant would not depart India soon after the visa was granted to allow him to travel to Australia. The applicant told the Tribunal that he had to wait for his stepdaughter, who he said were living with [Ms A]’s parents, to obtain a certificate from her school as he did not want to ruin her education by departing India. This explanation was consistent with the written letter the applicant submitted to the Tribunal when he applied for review of the decision.

The Tribunal was also concerned about the timing of the protection visa application, as it suggested that the applicant’s claims that he would be harmed, or risk being harmed, in India may not be genuine.
At the Tribunal hearing, the applicant told the Tribunal that his future plan when he arrived in Australia was to stay in Australia and never return to India. He claimed that the student visa that had been granted was a pathway to permanent residency in Australia. Given this, the Tribunal queried why the applicant did not apply for a protection visa when this pathway to permanent residency was taken away from him on 30 September 2013 when the Tribunal affirmed the decision to refuse to grant him a student visa. He said that he was not aware that the student visa had been refused, and only became aware of this in 2013 when he was advised he no longer had a visa and could not work by his employer. The applicant said that he then went to the Department to sort out his migration status. He claimed he did not apply for a protection visa at the time he went to the Department because he was not aware that he could apply for a protection visa, and he was not asked about it by the Department. The applicant said that he only became aware that he could apply for a protection visa when he spoke to someone in prison. She suggested he was unable to apply for a protection visa when he had a partner visa application outstanding, which the Tribunal observes was finally determined unfavourably on 18 July 2017, some 13 months before the applicant made his first attempt to lodge a protection visa.
In response to the Tribunal’s concerns about the credibility of the claim that the applicant will be harmed by his (now) ex-wife’s ex-husband in India, the applicant asked the Tribunal to consider the fact that his (now) ex-wife, former stepdaughter and two daughters had been granted protection visas. The applicant suggested the fact that they had been granted protection visas corroborated his claimed fear of harm from his (now) ex-wife’s ex-husband.
Attached to the applicant’s protection visa application form was a document that was identified as ‘D: [Ms A] + my phone conversation transcript.’ It was produced by ‘[a company] and is marked as being a translation of a conversation in Audio File recorded on 5 August 2016.
At the Tribunal hearing, the Tribunal wanted to explore how the applicant came to obtain the transcript and identify its relevance to the applicant’s protection claims. He disputed that that he provided the transcript and then said that he was not aware of the document.
The transcript appears to be a conversation between a male and a female and a handwritten annotation to the transcript identifies the male in the transcript as the applicant, and the female in the transcript as [Ms A]. It appears to be a discussion in 2016 where [Ms A] discusses that she was granted ‘PR’ and the applicant asking [Ms A] whether he can obtain a protection visa because his wife and the children have refugee status. The discussion then goes onto the applicant stating that if [Ms A]’s life was in danger, his life would be in danger as well, and that if she was to be killed, he would be killed too. The applicant confirms that [Ms A] had written that she left India because her life was in danger and asks whether [Ms A] had written that he had been threatened. The applicant asks whether [Ms A] has a copy of the ‘story’ and that he will cancel the application for his current visa (which was the partner visa) and apply for a protection visa. The Tribunal observes that transcript has some of the spoken words from the applicant scrubbed out.
The conversation as recorded in the transcript occurred in August 2016. The Tribunal observes that the applicant first made an attempt to apply for a protection visa in October 2018, some two years later.
After the Tribunal hearing, the Tribunal obtained the applicant’s (now) ex-wife’s protection visa application form. The Tribunal did so because the applicant put forward that her protection claims were corroborative of his claims. The applicant’s former stepdaughter, and two daughters were included in that application as members of the same family unit. The applicant’s (now) ex-wife and her three daughters applied for protection visa on 4 June 2014 which were granted on 18 May 2016, and they subsequently became Australian citizens.
In that visa application form, [Ms A] detailed the issues she had with her ex-husband in India and his family during her marriage and subsequent separation and divorce. She wrote about meeting the applicant and that her ex-husband’s parents made threats against the applicant. She wrote that her first husband was trying to find her and harmed her ‘many times.’ Her protection visa application form also detailed claims of physical abuse both in India and Australia from the applicant himself. She wrote that she thought her first husband and his family, as well as the applicant and his family would harm her in India.
To the extent that the applicant’s former wife makes claims that he assaulted her in both India and Australia, those claims are irrelevant to the Tribunal’s assessment of whether the applicant has a well-founded fear of persecution in India, or whether he faces a real risk of significant harm because of his removal to India from Australia.
The Tribunal was only concerned about assessing, as the applicant suggested to the Tribunal it do, whether the fact that his former wife had applied for a protection visa and was granted a protection visa, was corroborative of his claimed fears of harm
FINDINGS AND REASONS
The Tribunal considered all the evidence relevant to the review.
The issue in this case is whether the applicant is a ‘refugee’ or meets the requirements for ‘complementary protection,’ or whether he is a member of the same family unit as a person who holds a protection visa on the basis of satisfying s 36(2)(a) or (aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity and country of reference
The Tribunal is satisfied based on the applicant lawful entry to Australia that he is a citizen of India. There is no evidence to suggest that the applicant holds a right to enter and reside in a third country. Therefore, the country of reference for the purpose of the protection visa assessment is India.
The Tribunal accepts that he was previously married as claimed, that the applicant was previously a stepfather, and that he has fathered two children in Australia. The Tribunal also accepts that his (now) ex-wife, former stepdaughter, and two biological children held protection visas and are now Australian citizens.
The applicant is not a member of the same family unit concerning his (now) ex-wife because they are no longer married. The applicant is not a member of the same family unit as his former stepdaughter because he is no longer married to her mother. The applicant is not a member of the same family unit as his two children because he is not a spouse, de facto partner, or dependent child of his children.
Is the applicant a credible witness?
Considering the evidence and the applicant’s claims as a whole, the Tribunal is not satisfied that the applicant is a witness of truth about his claimed past experiences of harm in India at the hands of his (now) ex-wife’s ex-husband. The Tribunal observes the delegate was satisfied that the ‘applicant’s family may have had some issues with his wife’s former partner,’ but as the Tribunal made clear at the Tribunal hearing, the Tribunal is not bound by any finding or decision of the delegate.
As the Tribunal is not satisfied that the applicant has previously been harmed, or threatened with harm, by the applicant’s (now) ex-wife’s ex-husband, or anyone acting at the behest of the ex-husband, it follows that the Tribunal is not satisfied that there is a real chance of serious harm to the applicant in India, nor a real risk of significant harm as a result of the applicant’s removal from Australia to India.
The Tribunal comes to these conclusions for the following reasons.
Delay in departing India
The applicant had a valid visa which enabled him to depart India from [date] April 2009, but he delayed doing so until June 2009. The Tribunal does not accept that if the applicant had been threatened as he claimed twice prior to the grant of the student visa, he would decide to remain in India so his stepdaughter could complete studies, so she did not have to repeat the same grade in Australia as he suggested in his written statement. If the applicant was to be believed, he had been the subject of two serious physical attacks, was being harassed by threatening telephone calls, and he was at risk of harm which necessitated him relocating within India.
The Tribunal is not satisfied that the applicant would delay departing India in those circumstances due to a desire for his stepdaughter to complete her studies. If the applicant was harmed as he claimed, the Tribunal is satisfied that he would have departed India shortly after he was granted a visa to travel to Australia.
The Tribunal is satisfied that the delay in departing India is indicative that the applicant’s claims about his experiences of past harm in India is manufactured.
Delay in applying for a protection visa
The Tribunal is not persuaded by the applicant’s explanation about his reason for the delay in the protection visa application.
The Tribunal is not satisfied that if the applicant was previously harmed in India as he claimed, he would come to Australia to escape India (as claimed) and be in Australia for 9 years before lodging a protection visa, which is a permanent visa. The Tribunal does not accept that a student visa would automatically result in the applicant being granted permanent residency in Australia, and even if the applicant genuinely believed that, the Tribunal struggles to accept that the applicant would not lodge a protection visa after those hopes were dashed when he became aware that his student visa was refused, which he claimed was in December 2013. The fact that the applicant did not explore lodging a protection visa at that time, and only attempted to lodge the protection visa 3 months after his partner visa was refused, demonstrates to the Tribunal that the applicant’s claims are not genuine.
The Tribunal is satisfied that the delay in indicative that the applicant’s protection claims have been manufactured in order to achieve a migration outcome, namely permanent residency in Australia.
Inconsistent evidence about the first experience of physical harm experienced in India, lack of medical documentation to support this claim
The Tribunal is not persuaded that ‘medication’ is the reason for the applicant providing inconsistent evidence about the date of his first physical assault by his (now) ex-wife’s former husband. There is no corroborative evidence to support the applicant’s assertion that the ‘medication’ he was on (if he was medicated as claimed), had an effect which resulted in him confusing dates. The protection visa application was submitted some time ago, and in that application, he wrote that he was attacked in April 2007, but claimed at the delegate interview (and in a subsequent written statement) that the attacked occurred in April 2008. He would have been aware of the discrepancy in his evidence, and if he was genuine in his claim that the inconsistency could be put down to issues with his ‘medication’ the Tribunal is satisfied that the applicant would have provided corroborative medical evidence to prove the truth to that explanation. He did not do so.
The Tribunal further observes that the oral evidence of the applicant at the Tribunal hearing again changed this date to July 2007, while a claimed police report produced by the applicant suggested that this occurred in March 2008.
The Tribunal assesses that the inconsistent evidence about something as basic as when the applicant was first physically attacked by his (now) ex-wife’s former husband is indicative of the fact that the attack did not happen at all, and that the applicant fabricated this in order to be granted a protection visa.
The Tribunal also observes that no corroborative medical evidence was produced to support the proposition that the applicant had been harmed and required stitches as he claimed. The Tribunal is not persuaded by the applicant’s claim that doctors in India do not prepare reports for instances such as this. The Tribunal is satisfied that there would be medical records to support the applicant’s claim about the attack and his treatment if it were true.
The Tribunal observes that the applicant asserted that he had scars demonstrating that he had stitches from where he was treated following the attack. As the applicant appeared by audio-visual link it was not possible for the Tribunal to inspect the applicant’s claimed scarring. The Tribunal is prepared to give the applicant the benefit of the doubt that he has marks consistent with stitches but given all the circumstances as the Tribunal has found them, is not persuaded that the stitches were as a result of a physical attack as claimed by the applicant.
Failure to detail other specific instances of harm experienced in India in protection visa application form
The protection visa application form directed the applicant to give details of the type of harm he experienced, the person/people responsible for the harm and why the applicant was harmed. He detailed one specific physical event only, namely the incident where he was attacked with a sword.
The Tribunal is not persuaded by the applicant’s explanation about the failure to detail the other two claimed instances of physical harm he claimed to have experienced in India in the protection visa application form. The Tribunal is not satisfied that the applicant was counselled to only detail the first incident as he claimed in his oral evidence, noting that the applicant declared in his protection visa form that he had no assistance to complete the form. It is also not persuasive to believe that someone would suggest to the applicant to omit the other instances of physical attacks when the repetition of physical attacks would suggest that the applicant remained a target of his (now) ex-wife’s former husband. The Tribunal is satisfied that the applicant did not detail those two claimed subsequent attacks because the applicant fabricated those attacks to lend credibility to his claims.
Timing of production of ‘police reports’ to substantiate claims
The Tribunal was not persuaded by the applicant’s explanation about the timing of the submission of the ‘police reports’ to the Tribunal. The Tribunal accepts that someone named [Ms C] received those emails in January 2021 and forwarded them onto the applicant. However, the Tribunal is satisfied that if those reports were genuine, the applicant would have included them when he applied for a protection visa, noting that he also included other documents as attachments to that application form.
The Tribunal is satisfied that the ‘police reports’ were manufactured to lend credibility to the applicant’s claims. The Tribunal is not satisfied that they are corroborative of the applicant’s claimed experiences of harm in India.
Vague evidence about relocation within India after harm
The Tribunal is not satisfied about the applicant’s claimed explanation about why he failed to detail the addresses to where he claimed he went into hiding during his time in India. His claim that we ‘changed address’ in his written statement received by the delegate on 14 December 2018. The applicant suggested in his oral evidence to the Tribunal that he and his then-wife moved around to various places for safety.
The Tribunal is satisfied that the reason the applicant did not detail his entire residential movements and specify his residential locations in India is because the applicant was not harmed and did not relocate as he claimed.
Claimed corroboration of claims demonstrated by applicant’s (now) ex-wife’s protection claims
The Tribunal considered the fact that the applicant’s (now) ex-wife, his former stepdaughter, and two children applied for, and were granted, protection visas. The Tribunal observes that there is no decision record held by the Department to identify the basis of the grant of the protection visas, other than a record that all of the criteria for the protection visa have been met. In any event, the claims upon which a delegate was satisfied that the applicant’s (now) ex-wife, former stepdaughter, and two children is not binding on the Tribunal for the purpose of the applicant’s review.
The Tribunal accepts that there is some corroboration of the applicant’s claims in his (now) ex-wife’s protection visa application, where she claims that the applicant was harassed by her former husband.
However, given all the concerns that the Tribunal has about the credibility of the applicant, the corroboration of the harassment is not sufficient to overcome the Tribunal’s view that the applicant has manufactured his protection claims in order to be granted the protection visa. The Tribunal is not satisfied that it can place any weight on the corroboration of the claims as contained in his (now) ex-wife’s protection visa application.
CONCLUSION
The Tribunal is not satisfied that the applicant is a witness of truth. It does not accept that the applicant has previously been harmed or threatened with harm in connection with his (now) ex-wife’s husband. The Tribunal is not satisfied that the applicant is of adverse interest to his (now) ex-wife’s husband, anyone connected to her husband, or any group in India.
The Tribunal is not satisfied that the reason the applicant left India was due to his past experiences of harm, and fear of future harm in India. The Tribunal is satisfied that the applicant’s claims about past harm and fear of future harm have been manufactured for the purpose of obtaining a grant of protection. It follows that there is no risk of future harm in India to the applicant.
Refugee
For the reasons given above, the Tribunal is not satisfied that there is a real chance of serious harm to the applicant in India due to his race, religion, nationality, membership of a particular social group, or political opinion.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to India, there is a real risk he will suffer significant harm.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Member of the same family unit
For the reasons given above, the Tribunal is not satisfied that the applicant is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and holds a protection visa.
Therefore, the applicant is not a person who satisfies s 36(2)(b) or (c) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nathan Goetz
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.
…

[2023] AATA 1340

28 February 2023

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Immigration

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