1903777 (Refugee)

[2024] ARTA 809

1903777 (REFUGEE) [2024] ARTA 809 (5 DECEMBER 2024)

DECISION AND  

REASONS FOR DECISION

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  1903777

Tribunal:General Member Wearne

Date:5 December 2024

Place:Sydney

Decision:The Tribunal affirms the decisions under review.

Statement made on 05 December 2024 at 9:17am

CATCHWORDS

REFUGEE – Protection Visa – India – Religion – Christian – political opinion – an active member of the ABVP – membership of ABVP and INC – frequent return trips to India – violence following the national beef ban – inconsistent evidence  – not satisfied the applicants have a well-founded fear – decision under review affirmed

LEGISLATION

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister on 8 February 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied to the Administrative Appeals Tribunal (AAT) for a review of the decisions to refuse the protection visas 19 February 2019.

3. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal).  Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal.  The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

4. The applicants, who claim to be nationals of India, applied for the visas on 27 November 2017.  The second named visa applicant (the applicant’s wife) did not make her own claims for protection. The delegate refused to grant the visas because the delegate was not satisfied the first named applicant (the applicant) is a refugee as defined by s 5H(1) of the Act, or that there are substantial reasons for believing that there is a real risk he will suffer significant harm as defined in s36(2A). It followed that the application of the applicant’s wife as a member of the same family unit was also refused.

5. The applicant appeared before the Tribunal on 14 November 2024[1] to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malayalam language.

   [1] An earlier hearing scheduled for 22 August 2024 was rescheduled at the applicant’s request. The applicant returned to India to see his unwell [mother]. The applicant submitted a copy of his booked airline tickets and a letter from his mother’s doctor.

6. The issues in this case are whether there is a real chance, if the applicant returns to India, that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to India, there is a real risk that he will suffer significant harm.

7. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

   CRITERIA FOR PROTECTION VISA

8. 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.

9. 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.

10. 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).

11. 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.

12. 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

13. 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.

    Independent information

    Indian democracy and politics

14. The Department of Foreign Affairs and Trade (DFAT) Report about India[2] (the DFAT Report) states the following regarding India’s democracy and politics:

    India is the world’s largest democracy.  Both state and national elections meet international standards for free and fair elections. Turnout at the 2019 national election was at record highs (over 67 per cent) with strong participation from all socio-economic classes.  A very large and diverse range of parties contest elections.[3] …

    Between 1989 and 2014, no single party won a majority and power alternated between a series of coalition governments, some led by the INC [Indian National Congress]. Current Prime Minister Narendra Modi of the Bharatiya Janata Party (BJP) was elected in 2014 with the first single-party majority since 1984.  Modi stood on a platform of development and growth and Hindu nationalism … and was re-elected in 2019 with a larger majority. 

    India is a mature and robust democracy in which politics is hotly contested, and news and analysis is often sensationalised. Social media is used widely and sometimes includes disinformation. According to media reports, Hindu nationalism and populism have risen since Modi’s 2014 election. During this period the largest national opposition party, the INC, has weakened significantly at the national level, and no other political party has shown itself capable of forming a nationally cohesive challenge to the ruling BJP. Generalisations about India’s state of democracy are often unhelpful; India is characterised by significant ethno-linguistic and political diversity and the political landscape in one state can differ significantly from its neighbours. Diversity also exists within states.[4]

    [2] The Department of Foreign Affairs and Trade (DFAT) Country Information Report India 2023.

    [3] DFAT Report 2.42.

    [4] DFAT Report 2.5-2.6.

15. The BJP currently leads the national government in India, having secured 240 seats in the Lok Sabha during the recent elections. Although it fell short of an outright majority, it forms a coalition government with its allies in the National Democratic Alliance (NDA), which collectively holds 293 seats. Prime Minister Narendra Modi is set to continue his third term, despite the BJP's reduced dominance compared to previous elections.[5]

    Security in India

    [5] ‘BJP wins 240 seats, Congress 99: EC declares results for all Lok Sabha constituencies’, Economic Times, 5 June 2024.

16. Regarding security in India the DFAT Report notes:

    Overall, most Indians are not exposed to significant security threats on a day-to-day basis. There are some exceptions in specific, remote areas... Those that live in cities may be exposed to civil unrest, including violent rioting, which occurs from time to time across the country. Drivers of civil unrest are complex and varied and can include ethnic and religious tensions, insurgencies and terrorism and political and ideological violence. For the most part most Indians will avoid being in such situations.

    Misinformation spread on social media occasionally leads to violence. Rumours spread using social media platforms, such as Facebook, Snapchat, Twitter, WhatsApp and YouTube, about alleged crimes leading to occasional vigilantism. These events are unpredictable, however tend to be localised.[6] …

    The Constitution of India devolves responsibilities for police and public order to the states. According to sources, many Indians will choose not to contact the police, even if they are victims of crime. The 2019 Status of Policing in India Report found that two in five police officers surveyed said that people were hesitant to rely on them.  The 2018 version of the same report found that only one in five of more than 15,000 people surveyed had recent contact with the police, and those that did were more likely to be male and wealthy.  Those who contacted police may well have paid a bribe for the police to take action.[7]

    The World Bank classifies India as a lower-middle income country.  Prior to the COVID-19 pandemic, the economy was growing and poverty rates were falling significantly. Gross domestic product (GDP) fell approximately 7 per cent in 2020, during the first year of the pandemic.  India entered its first ever technical recession in late 2020.  The longer-term effects of the COVID-19 pandemic are not yet clear.  India’s economy continued to recover in 2022, although a slowing global economy, inflation, and elevated commodity prices pose risks to economic recovery.  Nevertheless, in late 2022, India’s economy became the world’s fifth largest, and its real GDP growth trajectory is projected to exceed 6 per cent in the 2023/24 financial year.[8]

    Document fraud in India

    [6] DFAT Report 2.47-2.48.

    [7] DFAT Report 5.4-5.6.

    [8] DFAT Report 2.10.

17. The DFAT Report notes extensive and easily obtainable document fraud in India.

    In-country sources told DFAT identity documents in India are unreliable because ‘breeder documents’ (which include birth, marriage and death certificates used to support applications for identity, residence and travel documents) and other basic government identity documents can be obtained fraudulently.  Easily faked bank statements or utility bills can also be used to demonstrate residency. Verifying documents is time consuming and largely unreliable given the ease of fraudulently obtaining genuine documents of all types. 

    Document fraud is a common criminal activity.  It is not difficult to obtain fraudulent documents. For example, a passport might be based on only one other form of identification.  Organised networks of agents are known to provide complete packages of fake documents. For example, The Times of India reported in February 2019 the arrest of five persons in Hyderabad for fabricating documents and official stamps, and helping people obtain visas for Western countries. The accused allegedly took applicants’ original passports, charging approx. AUD 750-850 as a first instalment, and a further AUD7,500-8,500 if the visa was successful. The process allegedly involved tampering with original Indian passports, and forging documents such as bank statements and seals, income tax returns, identity proofs, letter heads and logos, as well as rubber stamps of government officials, immigration stamps used at Indian airports, and immigration service stamps of Australia, the UK, the US,  and the [COUNTRY 1].  Sources told DFAT organised networks such as those arrested in Hyderabad in 2019 provided complete packages of fake documents and charged significant fees for the provision of fraudulent documents.[9]

    Kerala

    [9] DFAT Report 5.40-5.5.41.

18. The current ruling party in Kerala is the Left Democratic Front (LDF), led by the Communist Party of India (Marxist) (CPI(M)). The LDF has been in power since 2016 and was re-elected in 2021. This is first time an incumbent government was re-elected in 40 years. Pinarayi Vijayan serves as the Chief Minister. The opposition is primarily led by the United Democratic Front (UDF), headed by the Indian National Congress.[10]

    [10] Government of Kerala, Wikipedia, Accessed 13 November 2024.

19. Kerala had an estimated population of 35 million in 2023. It is the 13th most populous state in India with an overall population density of 2,200 people per square mile or 860 people per square kilometre. It is home to almost 3% of India's population, and its land is three times more densely settled than the rest of the country.[11]

    Reaction of political parties in Kerala to the beef ban

    [11] Kerala population 2024, World Population Review – Accessed 13 November 2024.

20. On 26 May 2017, the central government of India imposed a ban on the sale and purchase of cattle for slaughter at animal markets across India.[12] In response, political parties in Kerala exhibited a strong and unified opposition, with notable reactions from various factions. Political groups organised ‘beef festivals’ to oppose the ban.[13] Overall, political parties in Kerala largely united against the beef ban, using protests and public demonstrations to show their dissent while also emphasising local dietary customs:

    ·     Left Democratic Front (LDF): Chief Minister Pinarayi Vijayan was vocal against the ban, labeling it as an ‘action unsuitable for a democratic nation’, arguing the regulations were an infringement on personal freedoms and on the state's cultural practices.

    ·     Communist Party of India (Marxist) (CPI(M)): Agriculture Minister V.S. Sunil Kumar described the ban as ‘unacceptable and unconstitutional’, saying it misused animal welfare laws to effectively impose a meat consumption ban.

    ·     Indian National Congress: The Congress party, led by KPCC (Kerala Pradesh Congress Committee) President M.M. Hassan, condemned the ban as ‘undemocratic’ and a violation of human rights. He said banning cow slaughter in Kerala, where consumption of beef is culturally significant, denied people their right to choose their food. He said the BJP was trying to impose its agenda on Kerala.

    ·     Youth Congress: In a provocative act of protest, Youth Congress members publicly slaughtered a cow, which drew mixed reactions.

    ·     BJP: The BJP's response was more subdued in Kerala than in other states. State president Kummanam Rajasekharan condemned acts of public slaughter as ‘cruelty at its peak’, trying to maintain balance in a state where beef consumption is widespread.[14]

    [12] Cattle Slaughter in India, Wikipedia – accessed 26 November 2024.

    [13] Kerala sees ‘beef fests’ in protest against ban on sale of cattle for slaughter, The Hindu, 22 May 2017.

    [14] Protests in Kerala over govt’s new rules on cattle slaughter, move welcomed by gaushalas, The Indian Express, 17 May 2017; Impact of Beef Ban in Kerala, Openthemagazine.com, 8 June 2017; Kerala sidesteps India’s beef debate, The Groundtruth project, Richard Tamayo, 9 May 2019.

21. There was no significant violence in Kerala following the beef ban. Unlike other Indian states, Kerala never enforced the ban due to its diverse religious population, political stances and dietary preferences. While cow vigilante violence was prevalent in other parts of India, Kerala's unique socio-political environment prevented similar incidents from taking root.[15]

    Knee injuries and surgery

    [15] Kerala sidesteps India’s beef debate, The Groundtruth project, Richard Tamayo, 9 May 2019; Holy Cow! Beef ban, political technologies and Brahmanical supremacy in Modi’s India, Aparna Parikh and Clara Miller, ACME, Vol. 18 No. 4 (2019): Volume 18, No 4.

22. An anterior cruciate ligament (ACL) injury is a tear or sprain of the ACL, a band of tissue that connects the thigh bone (femur) to the shinbone (tibia). ACL injuries usually occur during sports that involve sudden stops or changes in direction, jumping and landing—such as downhill skiing, soccer, basketball or football.[16] A torn meniscus results from an activity that involves forcefully twisting or rotating the knee, such as aggressive pivoting or sudden stops and turns. Even kneeling, deep squatting or lifting something heavy can sometimes lead to a torn meniscus.[17]

    [16] ACL Injury – Mayo Clinic – Accessed 15 November 2024.

    [17] Torn Meniscus – Mayo Clinic – Accessed 15 November 2024.

23. Surgery may be needed to address a variety of knee conditions from fractures to torn ligaments and arthritis. Certain injuries, such as open fractures of the tibia or fibula near the knee, may require immediate surgery. For other conditions, such as the tear of the anterior cruciate ligament (ACL), surgery may be considered after other treatments are attempted.[18]

    Working in ([COUNTRY 1]

    [18] Knee Surgery | Johns Hopkins Medicine – Accessed 15 November 2024.

24. Workers from nearby countries work in [COUNTRY 1] for a variety of reasons, including:

    ·     Economic opportunities: [COUNTRY 1] has a stimulated job market with higher salaries and tax-free income. Many workers send money back to their families.

    ·     Quality of life and professional growth: it’s a safe, multicultural society with sound infrastructure and recreational options. The growing business environment facilitates career advancement and international exposure.

    ·     Cultural ties: there are strong historical connections and sizeable communities, e.g. from Kerala and other states in India. [19]

    [19] Why you should apply for a [COUNTRY 1] work [visa?].

    Evidence before the Department

25. The application form indicates the applicant is a [age]-year-old married man[20] born in [Kerala], India. His wife is also [age] and was born in [India]. They departed India on [date] August 2017 on Indian passports valid to 2022 (the applicant) and to 2026 (the applicant’s wife). The applicant was employed at a general [Occupation 1] in [COUNTRY 1] from 2013 until 2017. The applicant’s wife worked as a [occupation] in India in 2016-2017. They are both Catholic.

    [20] Both applicants were born in [year].

26. The applicant claimed the following:

    ·He became a member of the Kerala Christian Youth Movement (KCYM) at school.

    ·He became a member of the Akhila Bharathiya Vidhay Parishst (ABVP)[21] at college. This group was allied with the Bharathiya Janatha Party (BJP) and Rashtreeya Swayamsevk Sangam (RSS). He joined because as a young boy he’d been fascinated with the fascist ideas of the ABVP and the BJP.

    ·It became clear to the applicant that the ideas of ABVP and BJP were anti-Christian and an extreme form of patriotism. The applicant drifted away and joined the Nationalistic Secular Movement under the leadership of Indian National Congress (INC) and its youth movement called ‘Youth Congress’.

    ·This resulted in animosity from the ABVP and BJP members to the applicant and his family. He began to receive threatening calls from them, warning him to return to their group.

    ·To escape the BJP, the applicant moved to , ([COUNTRY 1]), for employment on [date] August 2013.

    ·He continued to support the humanitarian activities of INC while in [COUNTRY 1].

    ·On [date] November 2014 the applicant returned to India to visit his mother, who was suffering from old age diseases.  The applicant continued his church and political activities in support of the INC during his stay in India. On [date] January[22] 2015 he returned to [COUNTRY 1] as ‘their threat became so heavy’.  Four months later ([date] June 2015) he travelled back to his hometown, married on [date] July 2015[23] and returned to , [COUNTRY 1] on [date] September 2015.

    ·The applicant returned to his hometown in India again on [date] April 2016. The applicant claims that during this time in India the right-wing National government banned the slaughter of cows and beef meat. The left-wing ruling parties of Kerala were against the ban and the INC and Youth Congress led a nationwide strike against the central government. There were several incidents in the applicant’s city and nationwide. The ABVP  and BJP members planned to attack the applicant, so, sensing danger, he returned to [COUNTRY 1], on [date] May 2016.

    ·Two months later, on [date] July 2016, the applicant returned to his hometown to visit his family and celebrate his marriage anniversary. However, on 21 July 2016, the applicant and his wife were attacked by ABVP and RSS people. Others came to rescue the applicant and the offenders ran away. The applicant was attacked with iron rods and was admitted to [Hospital 1], [for] immediate knee surgery. The applicant’s wife was threatened by the BJP, ABVP  and RSS in the days after the attack. The applicant immediately rushed back to , [COUNTRY 1]. In his absence in [COUNTRY 1] his home was attacked. The applicant’s wife filed a petition before the police, however, as the offenders belonged to the ruling party the police didn’t act. As the situation with the BJP, RSS and ABVP became worse, the applicant’s wife joined him in , [COUNTRY 1] on [date] March 2017.[24]

    ·During May 2017 the bans of beef and cow slaughter in India was reaching new political dimensions. His house was attacked by ‘Hindi Ultras’.

    ·There is a large population of Keralites in , [COUNTRY 1]. The applicant received information from friends that unknown people were enquiring there about his residence and other details there. The applicant believes these are supporters of the BJP and RSS there.

    [21] In English this translates to: ‘All India Students Organisation’.

    [22] His written statement states he returned to [COUNTRY 1] on [date] June 2015, but elsewhere in the protection application it is consistently claimed by the applicant he returned to [COUNTRY 1] on [date] January 2015.

    [23] His written statement incorrectly states that he married on [date] June 2015, but it was confirmed by the applicant during the hearing, and it is supported by the marriage certificate to have happened on [date] July 2015.

    [24] The applicant’s written statement states that his wife joined him in [COUNTRY 1] on [date] April 2017. However, he elsewhere claims she joined him on [date] March 2017, and she also claims that this is the date she joined him.

1. The applicant submitted documents in support of his protection application including an undated letter from [a company], [COUNTRY 1], stating that he had been employed as a general [Occupation 1] since August 2013 (no end date to his employment was provided). He also submitted a letter from [a workplace], noting that applicant’s wife had been employed [there] from June 2016 until 5 March 2017. The applicants’ marriage certificate was also submitted.

   Department interview

2. The applicant attended a Department interview on 29 January 2019. I have listened to a recording of it, which is held on the Department file. The applicant provided the following information:

   ·     The partner applicant does not make her own claims for protection. She relies on the applicant’s claims.

   ·     The applicant joined the ABVP in 2010 and was an active member of their meetings and campaigns. He was also one of the founding members of the RSS at college. The ABVP had meetings with the RSS groups, and it was decided to increase the promotion of Hinduism. The applicant did not accept this. During the time he was involved with the ABVP, he attended a meeting outside of the campus with the RSS and learned about the hidden agendas of the ABVP, which they were afraid of being made public. The applicant shared this with his friends, which he believes affected the performance of the ABVP in the next election.

   ·     The applicant decided to leave the ABVP in 2012-2013, as he saw them as Hindu extremists. He joined the Indian Youth Congress. The applicant was attacked by his colleagues in the ABVP, who were angry with him, and afraid their hidden agendas would be revealed to the public. This made them want to take revenge on the applicant.

   ·     In [COUNTRY 1], the applicant continued involvement in politics as a member of the Youth Congress, by doing volunteer work assisting people with visa matters. The applicant was being followed by supporters of the ABVP in [COUNTRY 1], and he came to learn someone was collecting information about him there.

   ·     The applicant had also joined a group known as the KSU–Kerala Student Union, which falls under the Youth Congress movement.

   ·     No personal incidents of harm occurred when the applicant returned to his hometown in India during the November 2014–January 2015 trip, or when he got married in India (June 2015–September 2015 trip).[25]

   ·     During the time the applicant was in India from [date] April 2016–[date] May 2016,[26] he took part in a ‘beef fest’. These occurred all over India including Kerala. This was a protest against the move by central government to place restrictions on eating and selling beef.  A fight broke out between groups from ABVP and Youth Congress which was severe. After the incident, the applicant was targeted, and this led him to move back to , [COUNTRY 1].

   ·     The applicant left his job in [COUNTRY 1] due to the problems his family faced in India.

   [25] Trip dates taken from travel declared in the protection application.

   [26] Return date taken from declared travel in the protection application.

   Delegate’s decision

   Membership of ABVP and INC

3. The delegate noted that in discussing his political activities in India, the applicant said his political activities with Youth Congress (from 2012-2013) included working to help ‘backward’[27] people to have sufficient funds and opportunities for their education. When asked what political activities the applicant was involved in personally, he said that he led strikes. He clarified he had not personally lead strikes but was part of a group that did so.

   [27] The Other Backward Class (OBC), is not a pejorative. It is a collective term used by the Government of India to classify communities that are ‘educationally or socially backward’ (i.e., disadvantaged). Wikipedia – accessed 27 October 2024.

4. From 2013 onwards, the applicant’s political activities were protests and events during holidays spent in India. During the interview, he agreed that when he was employed in [COUNTRY 1] from 2013 as an [Occupation 1], his political activities lessened as he was spending most time there.  It was also put to the applicant in the interview that the reasons given for his travel back to India appeared to have been for family reasons, and that he was not politically active during this time. The applicant responded that he was busy with family matters, but he did participate in political activities. When questioned about what political activities he was engaged in while in the [COUNTRY 1], he advised he was an active member of the Youth Congress. When asked further about his involvement, he said he did volunteer work helping people with their visa matters.

5. The delegate asked the applicant why this volunteer work would make him a target of political groups such as the ABVP. He replied it was because the work was in line with the values of the Youth Congress party. When questioned further why he would be targeted in [COUNTRY 1], the applicant responded that people in [COUNTRY 1] were after the applicant. These people were friends of ‘[names], two ex-colleagues of the applicant from his time in the ABVP. The applicant also stated that he could not engage in political activities in [COUNTRY 1] as it was a Muslim country. It was put to the applicant that he had claimed only joined the Youth Congress in 2012 and gained employment in [COUNTRY 1] in 2013, and that his time in the party was brief. The applicant responded that he was part of another party, KCYM, from childhood, which was a Christian related group. When questioned if the applicant’s membership of this group affected him in anyway, the applicant stated there were no issues.

6. The delegate asked the applicant why he initially joined the ABVP, which was a Hindu-based group, when he was a Christian from birth. The applicant replied that in the past they were not a religious based group, which is why he joined. The applicant told the delegate that he was being targeted because he was a former member of the ABVP. When it was put to the applicant that many people changed allegiances to political parties, so why would this cause him to be a target, he replied that he was especially targeted as he was spreading rumours about the hidden agendas of the RSS, which was affiliated with the ABVP. This had led to a poor performance by the ABVP in the elections. It was put to the applicant by the delegate, that this was a significant claim, and he was asked whether he had evidence of these events occurring. The applicant advised that it only happened by word-of-mouth so there was no evidence available. When asked why he was only presenting this information during the interview, and had not mentioned it in his written statement, he advised he did provide this to his lawyer to put in the statement, but it appears he did not include it.

7. The delegate also asked the applicant why he left his employment in the [COUNTRY 1], given he would have been safe from the ABVP there. The applicant replied that people from the same group were settled in [COUNTRY 1] and were following him. When the applicant was further questioned about who specifically was following him, he responded that someone was collecting information about him in [COUNTRY 1].

   Return trips to India and involvement in the beef fest

8. During the interview the applicant confirmed that after obtaining employment in [COUNTRY 1] and travelling there on [date] August 2013, he returned to India on a number of occasions. He confirmed that when he travelled to India on [date] November 2014, to visit his unwell mother, no incidents of personal harm occurred against him, even though there were ongoing political issues.  When questioned about why he returned to [COUNTRY 1], the applicant told the delegate that he had to return to work. The delegate noted that this was inconsistent with the claim in his written statement that he returned to [COUNTRY 1] because he was being threatened. The applicant was informed that the delegate was concerned about the applicant’s credibility regarding feared harm in India.

9. The applicant confirmed to the delegate during the interview that he again returned to India for 3 months from [ June] 2015–[September] 2015, during which time he married. The applicant stated that during this time he was busy with preparing for his marriage, and no incidents of harm occurred against him during this time.

10. During the interview the applicant was asked if anything happened to him when he travelled back to India on[date] April 2016, and until he returned to [COUNTRY 1] on [date] May 2016. He said that some arguments and fights with the RSS occurred because of the beef restrictions at the time. He stated that threats to his life were made against him at this time by the RSS and BJP. The applicant stated that during this time he participated in a ‘beef fest’ which occurred throughout India. It was a protest against the beef restrictions put in place by the government. The delegate questioned the applicant about his involvement in the protest and he replied that he had only participated. He said a fight broke out during this time which became severe. When the delegate further questioned the applicant about what happened, the applicant said the opposition party targeted him because of his participation in the movement and began to make threats against his life. He told the delegate that he was targeted by particular people from the ABVP.

11. When the delegate asked the applicant why he hadn’t included this information of being specifically and personally targeted in his written statement, he replied that these problems occurred because he had been a former member of the ABVP. He said that these problems in 2016 could be traced back to his time in college in 2012.

    July 2016 incident

12. The applicant provided further information during the interview about an incident which he claimed occurred on 21 July 2016. The applicant was stopped by people from the RSS, who attacked him. His leg was injured and required surgery. He told the delegate that he did not report the incident to police. After the surgery, he went back to his employment in [COUNTRY 1]. The applicant told the delegate that there was no evidence or witness to this claimed event. The police didn’t accept an official complaint but contacted both parties for a mutual agreement.

13. The applicant was questioned, given this attack, why he would return to India again after this incident, and why he remained there until August 2017. The applicant told the delegate that as his family had received threats and his home was being attacked, he returned to India. He also told the delegate this is why he decided to bring his wife to [COUNTRY 1] in April 2017[28] to escape the threats.

    [28] Elsewhere consistently claimed that the applicant’s wife joined him in [COUNTRY 1] in March 2017.

    Evidence before the Tribunal

14. Before the hearing the applicant submitted a document setting out several unreferenced extracts from articles. The extracts were about political violence in Kerala and made no reference to the applicant. One of the extracts, confirmed during the hearing, was from Wikipedia. It stated that between 2000 and 2017, there were at least 80 political murders reported in Kerala.[29] Another was confirmed during the hearing to be an extract from a news article about political violence on campuses.[30] The applicant told me during the hearing that he had taken the other extracts from an online chat forum.

    [29] Political activism in Kerala – Accessed 13 November 2024.

    [30] The vicious circle of political violence on Kerala’s campuses: A timeline, The New Indian Express, updated on 25 January 2024 – 13 November 2024.

15. The applicant also provided a link to a YouTube video, RSS, and Congress blame each other for bloodshed in Kerala: IT Conclave South 2018.[31] The applicant also submitted a certificate of Blood Donation from the Australian Red Cross, which during the hearing he confirmed he submitted to demonstrate his community contribution.

    Tribunal hearing

    [31] RSS, Left and Congress blame each other for bloodshed in Kerala | IT Conclave South 2018 Described as: ‘Four Kerala leaders, representing different political ideologies discuss political killings in Kerala during a discussion on the 2^nd day of the India Today Conclave South 2018 held at Hyderabad.’ Participants were Rajya Sabha MP Rajeev Chandrasekhar, CPM leader KN Balgopal, RSS leader J Nandakumar and Congress leader Mathew Kuzhalnadan.

16. The applicant attended the hearing on 14 November 2024. He confirmed that his wife did not make separate claims for protection. He told me that they have a[age]-year-old son. A copy of their son’s NSW Birth Certificate is held on the Tribunal file.

17. The applicant confirmed that he worked as a [Occupation 1] in the [COUNTRY 1] from 2013. He also said that before that, he’d worked in India doing various jobs while studying, that his father had taught him as a [occupation]. In Australia since arriving here in 2017, he has worked as [various roles].

18. I noted that the delegate’s decision raised concerns about the credibility of his claims of feared harm in India. I explained that credibility of his claims was an issue that I would also be considering.  I also explained that if I did have concerns about the credibility of his claims, I may decide to place limited weight on documentation he submitted as supporting his claims.

19. Where relevant the applicant’s other evidence is discussed below.

20. The applicant claimed that before he left India, he consulted a lawyer about claiming protection in Australia. When he arrived here, he contacted the lawyer again to explain his claims and the lawyer assisted him prepare the application. He also claimed that important members of the KSU and Youth Congress had also assisted him and paid the lawyer. He confirmed that the claims made in the application were his claims for protection.

21. I asked the applicant if he wished to change or add to his claims. He said that he had not provided ‘certain things’ in his statement. He said that the main reason that he was claiming protection was because when he had been an active member of the ABVP in 2010, he had attended meetings and discussions and he became aware that the ABVP were anti-Christian and anti-other minority groups but pretended otherwise publicly. Because he was involved with them, he had been aware of this secret agenda. I agreed that he had not made this as a written claim but noted that he had raised it for consideration during the Department interview. The applicant repeated his claim made in the interview, while acknowledging that people may change allegiances, he was especially targeted as it was thought he was spreading rumours about the hidden agendas of RSS which was affiliated with the ABVP. The rumours led to a poor performance by the ABVP in the 2013 elections and the applicant was blamed.

22. I noted that the delegate had been concerned because he had not claimed to have been in the ABVP very long to make an impact having joined in 2010 and left by 2012-2013. I noted that this was also a concern I had regarding his claims for protection. The events that formed the basis of his claims for protection occurred more than 10 years ago and much had changed or could have been forgotten with the passage of time. The applicant agreed that it had been a long time ago, but he said that he was remembered for his activity at the time. He realised this when he returned to India recently, because he came to know that the 2 people ‘ [had] been making enquiries and followed him. However, he told me, he was able to flee before something bad happened.

23. The applicant added that it had been the events of 2016 that had been very difficult for him. When I asked him what he was referring to he said it was when he was attacked with the iron rods on a return trip to India from [COUNTRY 1] in July 2016.

24. I asked the applicant what had happened. He said that he and his wife had been on a motorbike in his hometown one afternoon. The 2 people from the ABVP started to follow them. They attacked the applicants and the applicants fell from the bike. The 2 people tried to tie up his hands and they beat him up. His leg was injured when they hit him with an iron rod. I noted that in his written statement he claimed this attack happened on the 21 July 2016. I referred to the medical report from the orthopaedic surgeon at [Hospital 1], which he had submitted in support of this claimed attack. The applicant confirmed that [Hospital 1] was a private hospital. The report from the surgeon stated that the applicant had been diagnosed with [an] injury and lateral meniscal tear for which he had undergone ACL reconstruction on 22 July 2016.

25. I noted the independent information, set out above, indicated that typically that type of knee injury was a sports injury where the leg had been twisted. I acknowledged that it could also occur in other situations. However, I explained that I was having difficulty accepting his claim that the knee injuries were caused in the attack that occurred on the afternoon on 21 July 2024, given he had the reconstruction surgery in a private pospital by an orthopaedic surgeon the following day. I referred to independent information (set out above) which indicated that this type of reconstructive surgery on a knee was not considered to require emergency surgery. Dangerous injuries near the knee, like open fractures of the tibia or fibula near the knee might require immediate surgery. However, other conditions, such as tear of an ACL surgery are considered to be discretionary, after diagnosis and after other treatments are attempted. The applicant responded that after he had fallen from the bike people had helped him. He couldn’t walk. He had swelling and pain. He went to the private hospital, had the MRI and the diagnosis, and the orthopaedic surgeon considered it an emergency. I told the applicant that the medical certificate he had submitted made no mention that the injury to the knee was received in an attack. It stated only that the ACL had been injured and there was meniscal tear.

    Frequent return trips to India after 2013

26. I noted that another concern I had about the applicant’s claims for protection, was the number of times he had returned home to India since the claimed events of 2012-2013. These 5 trips indicated to me that the applicant did not have a genuine fear of harm in returning to India because he returned so often and for the durations that he did.

27. I noted that according to the applicant’s evidence provided in the protection application,[32] and discussed in the delegate’s decision record, he had made the following trips back to India since first leaving India in August 2013:

    ·[date] November 2014 until [date]  January 2015 (3½ months),

    ·[date]  June 2015 until [date] September 2015 (nearly 3 months),

    ·[date]  April 2016 until [date]  May 2016 (3 weeks),

    ·[date]  July 2016 until [date] November 2016 (4½ months),

    ·[date]  July 2017 until [date]  August 2017 (2 months).

    [32] See pages 7-11 protection application. Previous address details.

28. I told the applicant that these return trips indicated that he was not in fear of returning to India, and so suggested that he did not have any genuine fear of harm there. The applicant seemed surprised at the length of time he had remained in India in 2016 after the claimed attack. I noted that the information came from the protection visa application and the delegate’s decision record. I noted that he had had the knee operation during the second trip back to India in 2016 and may have needed time to recuperate. The applicant agreed. The he said that he had needed surgery and rest. He added that there was a lot of trouble around the place. Politics were in bad shape. He said the 2 other people wanted revenge on him from when he had left the ABVP. He agreed that he had left the ABVP a long time previously. However, he claimed nonetheless these 2 others wanted revenge on him. He said that was probably because a lot of people had left the ABVP after the applicant left it in 2012-2013. The applicant said that he thought the situation had calmed down again after the July 2016 attack. However, he was told by his uncle’s friend who was a police officer, that he and his wife should leave India and go back to the [COUNTRY 1]. I noted that this claim was inconsistent from his protection application, which indicated that his wife had not returned with him to the [COUNTRY 1] after the claimed attack. The applicant then agreed with me adding that she had been working [in] India. I queried his evidence of threats, asking if he had any concerns for her safety in remaining in India, given the claims that he had made of threats against them. The applicant responded that the political party members were threatening him not her. She wouldn’t be attacked because they were really looking for him. He added that he had been worried, and this is why he arranged for her to join him in the [COUNTRY 1] in January 2017. I noted that this was inconsistent with his other claims in the protection application that she had joined him in March 2017.[33]

    Recent return to India

    [33] In his written statement the applicant claimed that she had joined him in April 2017.

1. I told the applicant I was also concerned about his very recent trip back to India, because this indicated he had no fear of harm in returning there.

2. I asked the applicant if his wife and son had joined him on this trip. He said that his wife had but not his son. He had wanted his son to travel with them, had applied for a visa for him, but it was not granted. So, he and his wife had to leave their son behind with a friend. Because they had left their son behind, they did not intend to remain long in India. He could not initially remember how long he had stayed in India thinking it had been a couple of days. However, his passport stamps indicated that he left Australia on [date] August 2024 and left India on [date] August 2024. The applicant explained that he and his wife had remained in India longer than they intended because his wife had difficulty with her immigration account. They had contacted the Department in Australia to resolve the issue.

3. I referred to the applicant’s request, and accompanying medical certificate about his mother, which the applicant had submitted with his request for a postponement of the earlier hearing. The applicant had stated that he had to urgently travel to India given his mother’s serious health condition. I noted that his mother’s medical certificate had been written by an obstetrician and gynaecologist. It referred to her attending the obstetrics and gynaecological outpatient department complaining of severe abdominal pain, and that she required recurrent outpatient visits for follow-up treatment. The applicant told me that his mother, who is now [age] years old, had had difficulty getting a diagnosis for severe lower back pain for what turned out to be a kidney stone. As she is diabetic, any medical procedure is problematic for her, and she had been scared. The applicant had been very concerned about her and this why he travelled back to India.

4. I noted that in his written statement the applicant had referred to feeling responsible for his family. I couldn’t imagine that he would knowingly take his wife and baby son into any situation that exposed them to danger. The fact that he had returned to see his mother, even if she was in pain, indicated to me that the applicant did not genuinely fear harm in India. Otherwise, he would never have taken his wife and tried to take his young son. The applicant told me that his mother was anxious and thought she was dying and so he did want to see her. He would have regretted it if he had not seen her. He also said that in planning the return trip to his hometown he did think that things had calmed down there for him and that it would be safe for them all for a few days. However, he realised this was not the truth because he heard that the 2 people from the ABVP were enquiring about him.

   Video link

5. I told the applicant that I had watched the video from the link that he had sent to the Tribunal, noting that it was about 45 minutes long. I observed that no mention had been made of the applicant, and he agreed. He said he had submitted it because it showed that people were getting killed in Kerala from political violence. He said that this could happen if a person changed party allegiances. The victims did not have to be leaders to be killed. No one can guarantee safety or say when the violence will cease. If there is no active opposition party the government will run easily. However, in Kerala there is always an active opposition.

6. I referred to the independent information I’d raised earlier in the hearing describing India as a mature and robust democracy, where politics is hotly contested, and news and analysis is often sensationalised. I noted that this video he wanted me to consider was a good example of that independent observation about politics in India. The anchor/interviewer was trying to excite the different speakers from different parties to get a more robust reaction from them as the discussion continued. I noted that despite that and their politics they were able to have quite a reasonable discussion from different perspectives about political violence in Kerala. I also noted that there were no obvious security measures taken in this public discussion, made in front of a live audience.  I also noted while the Wikipedia article he had submitted to the Tribunal stated that between 2000 and 2017 there had been at least 80 political murders, the participants couldn’t agree on the exact number of political killings and from when to start counting them. For example, was it 1948,1995 or 2000?

7. I also noted for context, in considering the numbers of deaths being referred to in the video and the extracts he had submitted, it was important to know the total population of Kerala, which is significantly large. There were 35 million people recorded living there in 2023.

   Beef ban

8. I asked the applicant about his claims about violence following the national beef ban in May 2017. He said that he and his friend had attended a protest rally, that some of his friends led. Some people were angry and riot police came. He added that stones were thrown at his house. I referred to independent information which indicated that the beef ban was never made in Kerala and there was no significant violence reported and overall. I noted that political parties in Kerala largely united against the beef ban. I read out some of the generalised views of the political parties to the beef ban.

9. I also noted that according to dates provided in the protection visa application the applicant had been in India in May 2017. The applicant said he did attend a rally but could not remember the exact dates.

10. The applicant agreed with independent information I read out about the BJP's response to beef ban being more subdued in Kerala. He said that they did not have a stronghold there. The applicant referred to what had been said about the Congress view and said that the beef ban represented more of a human rights issue. A ruling party should not decide what people can eat.

11. The applicant added that people knew he was against the agenda, and he had to leave the country. I noted to the applicant that what he had described as the secret agenda of the ABVP and BJP party was not secret anymore. The applicant agreed, saying that today, Indians know the agenda of the ruling party. It was secret but its not anymore. Now its different.

12. I told the applicant that I was confused by his claim that he left his job in [COUNTRY 1] and returned to India because his family was having problems in India. The applicant said that he didn’t go back to India because he lost his job. He had discussed his position with political leaders. His family was facing more problems and it was getting worse. So, he had to come to Australia with his wife. I indicated that I remained confused by his evidence. What problems was the family experiencing? The applicant said that he had been worried about his wife. I noted that according to information provided under protection application his wife had joined him in [COUNTRY 1] in March 2017 and remained with the applicant until they both returned to India in July 2017. The applicant then said that his family members had been threatened in India, saying that they would ‘finish’ the applicant if they saw him. I pointed out that while he was in [COUNTRY 1] he was safe. The applicant replied that political members were also in [COUNTRY 1].

    FINDINGS AND REASONS

    Nationality

13. On the basis of their Indian passports, I accept the applicants are nationals of India and consider India is the country of nationality and the receiving country for the purpose of assessing the applicant’s claims against the refugee and complementary protection criteria respectively.

    Consideration of applicant’s claims

14. The basis of the applicant’s written claims for protection were his departure from the ABVP (allied with the BJP) to join the INC (and the affiliated Youth Congress) and the ‘animosity’ against him from the ABVP following that. As discussed with the applicant during the hearing, the delegate observed that the applicant had only been a member of the ABVP from 2010 until 2012-2013 and noted that people regularly change political allegiances. Given this, the delegate observed that the applicant’s claim of an enduring animosity from ABVP members did not seem plausible. When this implausibility was brought to the applicant’s attention during the interview, he made a new claim that during his time in the ABVP he went to meetings where he heard discussions of their secret agendas. He claims that he was suspected of leaking the secret agendas of the ABVP, RSS and BJP, and that he did do so. Because of this, the ABVP did not do well in the 2013 elections and people left the ABVP. The applicant maintained this claim in the hearing and that he continues to be blamed and revenge continues to be sought against him to this day. He claims to fear serious harm if he is returned to India.

15. I accept that the applicant went to a church school and that he joined the KCYM, which was a Christian related group and that there were no issues for him flowing from this. Also, because his evidence was forthcoming and naturally given, I accept that the applicant has an interest in Kerala politics, felt aligned with the INC and Indian Youth Congress views and was interested in the nationally driven meat ban issues.

16. However, I have great difficulty accepting the applicant’s core claims for protection, as discussed below.

17. It over strains credibility that someone genuinely fearing serious harm since 2013 in his hometown in India would have left and returned there 5 times during 2013-2017. Further, the applicant did not just return to his hometown, he remained each time for an extended period ranging from 3 weeks to 4 and a half months. Indeed, the total time spent back in his hometown, where he claims to fear harm, from when he first returned there in November 2014 until he finally left India in August 2017, was 13 and a half months. This is a significant amount of time to remain in a place where harm is feared. Further, despite the frequency and duration of all these return trips home, the applicant claims[34] that (apart from the trip where he married in July 2016) he left India for the [COUNTRY 1], each time because he feared imminent harm.

    [34] In the protection application statement.

18. It also strains credibility to accept there is an objective basis for the applicant’s claimed fear of harm given the precipitating events he relies on occurred 11 years ago. Particularly so, given the claimed secret agendas of BJP and RSS, in regard to the prominence and promotion given to Hindu nationalism, have been publicly reported and widely acknowledged for some time – as the applicant acknowledges.

19. It also over strains credibility to accept the applicant’s claims of feared serious harm in India when he returned to his hometown just 3 months ago. To state the obvious, I find it highly unusual for a person who genuinely fears harm in a place to return there. Even more significantly, his wife accompanied him on this trip, and their [age]-year-old son would have too if the applicant had been able to obtain a visa for him. As I observed to the applicant during the hearing, he claims he is the head of his family and is responsible for them. And I accept this claim because he presents as a responsible person dedicated to the well-being of his family. As I explained to the applicant, such a responsible person would not put family members at risk by bringing them to the place where he genuinely feared harm. I accept that the applicant’s mother in India was unwell and in great pain with a kidney stone. I even accept that she told the applicant that the pain was such that she felt she was going to die. However, she was not in hospital at the time the applicant visited his hometown, as acknowledged by the applicant. She was not in hospital at the date of her doctor’s report, submitted by the applicant to postpone the hearing. This doctor’s report clearly states that the applicant’s mother is an outpatient of the clinic requiring on-going outpatient treatment. So, although I understand the applicant’s desire to see his unwell mother, especially after being away for 7 years, I do not accept that he would have returned to his hometown if he genuinely feared harm there – let alone travelling with his wife and [age]-year-old son. When I raised these issues with the applicant during the hearing, he said that he had considered it safe to return there but while there learnt that 2 members of the ABVP were still interested in him, but he managed to flee before something bad happened. However, I note that despite considering it safe to return with his wife and young child, the applicant did not withdraw his application to review the decision to refuse the protection visas.

20. Another concern I have is that the applicant claimed the attack on him happened on 21 July 2016, and that a few days after his wife was also threatened. He made the written claim that he ‘immediately rushed’ back to [COUNTRY 1]. However, as I pointed out to the applicant, he inconsistently claimed in the protection application to have left India on this visit on 29 November 2016, which is over 4 months after the claimed attack. I consider that the applicant’s evidence on this issue reflects adversely generally on his other claims for protection.

21. I also have concerns about the applicant’s evidence about threats to his wife and family. He claimed during the hearing that he and his wife went to [COUNTRY 1] after the July 2016 attack, and subsequent threats made against them. However, as I reminded the applicant, he had elsewhere claimed that his wife had not joined him there until March 2017.[35]  In seeking to explain why his wife had remained in India after the July 2016 attack, despite claiming that she had been threatened, he told me that it was him, not his wife, who was in danger of harm. I consider that this is inconsistent evidence, and I find it reflects adversely generally on the applicant’s credibility regarding his claims for protection.

    [35] In his written statement he claims it was April 2017 but elsewhere in the protection application states it was March 2017. I accept it was March 2017 as the applicant’s wife also claimed this date. See page 20 of the protection application.

22. Another issue is, despite no harm or threats of harm in [COUNTRY 1] (but claims of being followed and information being collected), the applicant maintains the claim he and his wife returned to India on [date] July 2017 because of the problems his family faced in India. The applicant claims that these were threats made to his family about the applicant. However, despite these claimed threats, the applicant and his wife returned to his hometown and remained there nearly 2 months, before leaving for Australia on [date] August 2017. I do not accept that the applicant would have returned to his hometown and waited there for 2 months, if he genuinely feared harm.

23. Given all the above, I do not find the applicant credible in his claims for protection. I do not accept that he left India in August 2013 for the reason he claims, or that any of his subsequent departures from India were because he feared harm by remaining there.

24. Specifically, I do not accept that:

    ·The applicant was an active member of the ABVP from 2010 until 2012-13 (or anytime) and participated at their meetings and campaigns and was one of the founding members of the RSS at college. Nor do I accept that the applicant attended any off-campus meeting of the ABVP with secret agendas that he spread to others or was thought to spread to others.

    ·The applicant joined the INC, Youth Congress in 2012-2013 in India or [COUNTRY 1] or at any time before he left India in 2017. Nor do I accept that the applicant joined the KSU.

    ·When the applicant left the ABVP in 2012-2013 there was animosity to him and his family, and threatening calls made to the applicant warning him to rejoin the party. Nor do I accept the applicant moved to [COUNTRY 1] in August 2013 to escape harm from the ABVP or BJP members. (However, I do accept his other claim that he went there for employment.)

    • The applicant returned to [COUNTRY 1] in January 2015[36] from India because ‘their threat became so heavy’.

    [36] See footnote 26.

    (Instead, however, I do accept the applicant’s evidence given during the interview that no personal incidents of harm occurred:

    • during the November 2014-January 2015 hometown trip and he returned to [COUNTRY 1] to work, or
    • when he got married in India (June 2015-September 2015 hometown trip)).

    ·Members of the BJP and ABVP planned to attack the applicant while he was home in India in April-May 2016 because of the beef ban politics, and this is why he returned to [COUNTRY 1] on [date] May 2016.

    ·The applicant was involved with INC or Youth Congress activities in India before or after August 2013 or in [COUNTRY 1] between 2013-2017. However, because of his travel experience and religious background, I am prepared to accept that the applicant may have assisted others with their visa issues while he was in [COUNTRY 1], and that he continued his church activities when back visiting his hometown in India.

    ·The applicant took part in a beef fest when he was back in Kerala India from [date] April 2016 until [date] May 2016 after which he was targeted, and threats made against his life by BJP and RSS members so he went back to [COUNTRY 1].  Nor do I accept that the applicant took part in any beef fests in 2017, or that his house his family home was attacked by ‘Hindi Ultras’.

    ·That the applicant was attacked by ABVP, BJP or RSS members or those acting on their behalf on 21 July 2016 when he was on his motor bike with his wife, or that he was hit with iron rods, or the applicant’s wife filed a petition with the police about the attack. (Although I do accept based on the medical certificate submitted that the applicant had otherwise injured his knee and had scheduled knee reconstruction surgery at Lords Private Hospital on 22 July 2016.)

    ·The applicant’s wife was threatened by the BJP, ABVP or RSS members or those acting on their behalf after 21 July 2016 (or anytime), or that the applicant’s family home was attacked when he returned to [COUNTRY 1] on 7 September 2016.

    ·It was because the situation with the BJP, RSS and ABVP became worse that the applicant’s wife joined him on[date] March 2017.[37]

    [37] Later date is claimed in the applicant’s written statement but elsewhere it is consistently claimed to be [date] March 2017

    ·The applicant was followed by supporters of the ABVP in [COUNTRY 1] and he came to learn that someone was collecting information about him there. Nor do I accept that he also received information from friends that unknown people were enquiring about his residence and other details in [COUNTRY 1], or that he believes these are supporters of the BJP and RSS in [COUNTRY 1]. (However, given the independent information set out above, I accept that many Keralites live in [COUNTRY 1].)

    • The applicant left his job in [COUNTRY 1] due to the problems his family faced in India.
    • ‘ [Two named individuals] from ABVP have any adverse interest in the applicant for reasons he claims.
    • Members of the KSU and Youth Congress in India had also assisted the applicant in making his claims and paid the Indian lawyer who prepared the protection application in Australia for the applicant.
    • The 2 ABVP members or others acting on their behalf followed the applicant on his August 2024 return trip to his hometown and he fled back to Australia before something bad happened.

25. In regard to the video link and the extracts that the applicant submitted, I accept that there is political violence in Kerala, which had sometimes extended to killings. I also accept that the violence has not been restricted to harming leaders, and has on occasion, followed someone changing political allegiance. However, I do not accept that the video or the extracts support the applicant’s claims of specific harm to himself from the events he claims.

    The refugee criterion

1. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far- fetched possibility.[38]

   [38] And a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

2. In the present case, I do not accept that the applicant genuinely fears harm from ABVP members, BJP members or RSS members or former members or those acting on their behalf for the reasons he claims. Nor do I accept that there is an objective basis for his claimed fear of harm from these people for the reasons he claims.

3. I am not satisfied, notwithstanding independent information that political violence exists in Kerala, that the applicant is being threatened by ABVP members or former members or BJP or RSS member or former members. I have not accepted the claim that the applicant was a former member of the ABVP or that he leaked or was thought to have leaked their secret agenda causing the ABVP to not do well in the 2013 elections and lose members because of that, or the applicant’s actions. I have not accepted that the applicant was threatened or harmed by ABVP, BJP or RSS members or former members or anyone acting on their behalf. I have not accepted that his wife and other family were threatened, or that his house was stoned. I have not accepted that he or his family was targeted because he participated in the beef fests or other beef ban protests. I have not accepted that the ABVP, BJP or RSS members or former members or those acting on their behalf have followed the applicant or gathered information about him in [COUNTRY 1].

4. I am not satisfied that ABVP, BJP or RSS members or former members or those acting on their behalf have any interest in the applicant for leaving the ABVP party in 2012-2013 or revealing their secret agendas or for any other reason, if he were to return to India now or in the reasonably foreseeable future.

5. Having rejected the applicant’s claims about leaving the ABVP party and revealing their secret agenda, I am not satisfied the applicant faces a real chance of serious harm from these people or anyone else for this or any other reason. Given these findings and this conclusion it is unnecessary to specifically address the issue of whether the harm feared by the applicant is for a specified reason set out in s 5J(1)(a).

6. For the above reasons I am not satisfied the applicant meets the requirements for recognition as a refugee as defined by s 5H of the Act and I am not satisfied that he is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

   The complementary protection criterion

7. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have also considered the alternative criterion in s 36(2)(aa). Having rejected the applicant’s claims regarding feared harm from the ABVP, BJP or RRS members or former members or anyone acting on their behalf, I am not satisfied that he is at risk of adverse attention or interest from these people upon return to India. I find there is no basis, on the evidence, to conclude that the applicant faces a real risk of arbitrarily deprivation of his life, or that the death penalty will be carried out on him, or that he will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment if he is returned to India. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

8. 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).

9. The applicant’s wife does not make her own claims for protection. She relies on being a member of the same family unit as the applicant. The fate of her application follows that of the applicant. 

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

    DECISION

11. The Tribunal affirms the decisions not to grant the applicant protection visas.

    General Member Wearne

    Hearing date: 14 November 2024.

    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.

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    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.

    …