1904203 (Refugee)

1904203 (Refugee) [2023] AATA 1450 (8 May 2023)
CORRIGENDUM
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Simar Hermis (MARN: 1464902)
CASE NUMBER:  1904203
COUNTRY OF REFERENCE:                   India
MEMBER:Peter Papadopoulos
DATE OF DECISION:  8 May 2023
DATE CORRIGENDUM
SIGNED:17 May 2023
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

The words: "... the Tribunal is not satisfied that the applicant held, or not garnered, any discernible profile as an environmental activist..." at paragraph 146 should be replaced with: "... the Tribunal is not satisfied that the applicant held, or garnered, any discernible profile as an environmental activist..."
Peter Papadopoulos
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Simar Hermis (MARN: 1464902)
CASE NUMBER: 1904203

COUNTRY OF REFERENCE: India
MEMBER:Peter Papadopoulos
DATE:8 May 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants a protection visa.

Statement made on 08 May 2023 at 3:15pm
CATCHWORDS
REFUGEE – protection visa – India – imputed political opinion – environmental protests – religion – Christian – lobbying political candidates – legal proceedings – fear of killing – physical assault – state protection – false information – bogus documents – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Fox v Percy (2003) 214 CLR 118
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 91
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sun v MIBP [2016] FCAFC 52
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZLVZ v MIAC [2008] FCA 1816
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

[The primary applicant] is [an age]-year-old female who claims to be a national of India. [The secondary applicant] is [an age]-year-old male who is married to [the primary applicant] and also claims to be a national of India.
[The primary applicant] and [the secondary applicant] were each granted a [Visitor] [visa] on 15 March 2016 and arrived in Australia [in] May 2016. They have not departed since.
On 14 June 2016, [the primary applicant] and [the secondary applicant] (the applicants) applied for a Subclass 866 Protection (Class XA) visa (protection visa).
On 5 February 2019, a delegate of the Minister for Home Affairs made a decision to refuse to grant the applicants a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate refused to grant the visa on the basis that the applicants are neither persons to whom Australia has protection obligations nor members of the family unit of a person to whom Australia has protection obligations.
This is an application for review of the delegate’s decision.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CLAIMS AND EVIDENCE
Claims and evidence provided to the Department
Protection visa application
According to information contained in the protection visa application, [the primary applicant] was born in Trivandrum (now known as Thiruvananthapuram), Kerala in India. She raised claims for protection while her husband, [the secondary applicant], did not raise his own claims for protection.
Based upon information in the protection visa application form that was completed and signed by [the primary applicant] on 14 June 2016, she:
·     is a Christian and an ethnic Malayalam.
·     married [the secondary applicant] on 12 May 2001.
·     has two children in India, namely:
o   [names, gender, dates of birth].
·     resided at the following premises in India before arriving in Australia:
o   [An address in] Trivandrum, Kerala (between [a specified year] and October 2008); and
o   [Another address in] Trivandrum, Kerala (between October 2008 to April 2016).
·     was unemployed throughout her life in India.
In relation to her claims for protection, [the primary applicant] provided the following information in a written statement dated 14 June 2016 (written statement of 14 June 2016) which accompanied her protection visa application form:
·     She is an [occupation specified].
·     She lived in an area of India where there were many children, schools and places of worship.
·     With the blessing of the Left Democratic Front Communist Party (LDF), the [Factory 1] (the factory) was established. The factory was situated in a residential area. Due to the factory’s [operations], carbon was released into the atmosphere causing problems for people, young and old, such as lung and liver diseases and other health issues.
·     The community lacked proper drinking water and day-to-day living was difficult because of the factory’s operations.
·     [Leader A], the [leader] of [a named] Church in [Town 1], led a peaceful meeting with the factory. During this meeting, she was elected convenor or leader for a group of [number] women at the meeting. With this group of women, she led peaceful demonstrations against the factory over a period of time.
·     [The] owner of the factory, bribed [Official A], an LDF government official, and appointed him to the role of project manager.
·     [Official A] was a ‘gangster of the communist party’ who assaulted her, entered her house, damaged her household items, and threatened to kill her family and children.
·     She visited the police station to make a complaint against [Official A] but, due to issues stemming from political and economic influence, the police were ‘not in a position to act according to the law’.
·     Some time later, she and others prevented factory staff and management from entering the factory’s premises. In response, factory management filed a case at the police station against her because she was ‘the leader’. The police tried to arrest her. She believed that her life was in danger and sought refuge with friends and relatives for a few days.
·     The factory took her to court and registered some cases against her. Her lawyer obtained a bail order and she was proven innocent and acquitted.
·     For the next two years, she led demonstrations against the factory ‘on a day to day basis’ with different people joining her. Because of these demonstrations, the factory was shut and [Official A] tried to kill her. This led to the applicant and her family sleeping at a local church for safety.
·     She expected the LDF to retain power after the State election held in May 2016. She fears that [Official A] and his gang would engage in further criminal activities. She believes the owner of the factory is using [Official A] as a ‘hinch man’ [sic].
·     She cannot relocate to other parts of India because she is a Christian and the Bharatiya Janata Party (BJP), who are pro-Hindu, will not allow her to reside elsewhere in India.
·     Given this danger to her life, she fled India with her husband and left her two children at her sister’s house.
On 4 September 2017, the applicants appointed registered migration agent[named] to act as their representative (the first representative).
On 21 October 2017, [the primary applicant] made a statutory declaration (statutory declaration of 21 October 2017) in which she explained that she and her husband did not speak much English and had relied upon someone they met at church to help them complete their protection visa application and prepare her written statement of 14 June 2016. Since appointing the first representative, she understood that there ‘seems to be misunderstanding and confusion in the statement’ and therefore wished to ‘clarify things and correct whatever may be the errors in that statement’. Relevantly, and by way of clarification, her statutory declaration of 21 October 2017 contained the following information:
·     In February 2009, she was assaulted at her home by a group of people led by [Official A]. They demanded she withdraw from protesting against the factory.
·     In 2009, the factory initiated a court case against all activists, including her. She only had a copy of the originating court document to show to the Department.
·     From that time, there was a lot of tension between the factory and the activists.
·     In January 2014, she was acquitted. However, the court case proceeded. [Official A] organised for some people to assault her at her home. In August 2014, she and her family were attacked and sustained injuries. They initiated court action against the perpetrators but they were unable to include [Official A] in the action because there was no evidence to charge him due to his behind-the-scenes involvement.
·     Despite the problems she faced, she was ‘quite active’ in protesting against the factory in 2014 and 2015.
·     In October 2015, the Church convened a meeting because most of the activists were tired of going to court. Despite her protestations at this meeting, most of the meeting attendees agreed that they should ask the court to dismiss their case. The case was dismissed against most of the named individuals in November 2015 but she has heard that ‘the case continues against some’.
·     The community became divided over the issue of the factory as many people within the community began to depend on the factory for their employment. The factory has been illegally dumping waste which has caused serious damage to ground water.
·     She and other activists did not support any particular political party but in February 2016, in the lead up to the 2016 Kerala Assembly elections. They approached both major party candidates, including a Congress candidate [Candidate A]. They wanted [Candidate A] to take action against the factory but he feared repercussions from the Communist Party if they came to power. When they approached the Communist Party candidate, he did not wish to see her.
·     Communist Party supporters, who are strongly supportive of the factory, were aware that she was pressuring [Candidate A] to publicly state his criticism of the factory. Her husband heard from a friend that there may be an attack on her and that [Official A] is seeking to ‘wipe me out once and for all’.
·     Her husband feared that if there was an attack, it may be very serious and suggested that the only way to be safe was to flee India and go elsewhere. They then applied for visas to Australia and were ‘changing places between March, April and May 2016 to be safe from danger’.
On 23 January 2019, the Department received a lengthy document from the applicant, through her first representative, in support of the application. This document was a copy of a Writ Petition filed under Art. 26 of the Constitution of India in the civil case of [Case name] heard before the [Court 1] at [Location 1] dated [in] May 2009. The Writ Petition was prepared on behalf of the company which owned the factory and detailed various claims against [number] respondents. [The primary applicant’s] name was specified in this document as the [specified] respondent. The company contended in the Writ Petition that it had faced various ‘threats and difficulties’ from a number of the respondents, including the [specified] respondent, who were ‘causing troubles’ to the company when the factory was being set up, ‘preventing’ the factory’s establishment, ‘delaying commencement of production’ as well as trespassing, attacking and vandalising factory premises, plant and machinery on [a day in] November 2008 so as to ‘interfere’ with production. The company further contended that it had made representations to senior police officials in Thiruvananthapuram to intervene and protect the factory against further interference and attack from a number of the respondents, including the [specified] respondent. The company requested the court issue a writ of mandamus or any other appropriate writ, order or direction commanding senior police officials in Thiruvananthapuram to ‘provide adequate, effective and sufficient police protection to the petitioner company. For continuing its production smoothly, for the transportation of raw-material, finished products etc., free from interference/destruction on the part of respondents [numbered] and their henchmen’. The Writ Petition included the following [exhibits]:
· [Details of exhibits deleted, including Court documents, judgement, petitions to police, interim order, a statement submitted, photographs, media coverage, details of damages caused and a site inspection]
Supporting documents
Prior to the appointment of the first representative, the applicants provided the following documents to the Department in support of their protection visa application:
·     Department form 866B, ‘Persons included in this application and family composition’, dated 14 June 2016 and received by the Department on 15 June 2016
·     Department form 866C, ‘Personal details for each person included in this application’, completed by [the primary applicant] on 14 June 2016 and received by the Department on 15 June 2016
·     The written statement of 14 June 2016, the contents of which are summarised above
·     An affidavit completed by [Brother A], [the primary applicant’s] brother, dated 27 May 2016 attesting to, among other things, her claim to have participated in environmental protest action against the [Factory 1] (Affidavit of [Brother A])
·     A Certificate cum Report from [Advocate A], Advocate of [Firm 1] in Kerala, dated 27 May 2016 (Report from [Advocate A]), specifying that:
o   [the primary applicant] was involved in some environmental issues in connection with a [factory] named [Factory 1]
o   the LDF filed criminal cases against [the primary applicant] and she was subsequently proven innocent and acquitted
o   following her acquittal, [the primary applicant] was assaulted by Communist Party activists at her residence and had filed a private complaint before a court against those activists
o   he assisted [the primary applicant] in relation to her defence for the criminal matters and her filing of the private complaint.
·     A copy of an Indian passport (reference [number]) issued to [the primary applicant] [in] 2009 and which expired [in] 2019
·     A copy an Indian passport (reference [number]) issued to [the secondary applicant] [in] 2015 and set to expire [in] 2025
·     NSW Drivers licence issued to [the primary applicant] and set to expire [in] 2021
·     NSW Drivers licence issued to [the secondary applicant] and set to expire [in] 2021.
Following his appointment on 4 September 2017 and before the interview with the delegate on 15 January 2019, the first representative provided the Department with various documents which it already had in its possession including the Affidavit of [Brother A] and the Report from [Advocate A]. In addition to that material, the first representative provided the following documents to the Department in support of the protection visa application:
·     Department form 956, ‘Advice by a migration agent/exempt person of providing immigration assistance’, dated 4 September 2017, detailing the appointment of the first representative
·     A copy of a Marriage Certificate, dated [in] September 2009, issued by the [named church in] Trivandrum, India specifying the marriage of the applicants [in] May 2001
·     The statutory declaration of 21 October 2017, the contents of which are summarised above.
Following the interview with the delegate on 15 January 2019, the first representative provided the Department with the Writ Petition, the key contents of which are summarised above.
Protection visa application interview
[The primary applicant] attended an interview with the Department in connection with her protection visa application on 15 January 2019. The interview was conducted with the assistance of an interpreter in the Malayalam and English languages.
The Tribunal has listened to a copy of the recording of the protection visa application interview and refers to it, where relevant, in the findings and reasons below. However, for the sake of clarity and thoroughness of the claims presented to the Department, the following additional evidence was provided by [the primary applicant] during the protection visa application interview:
·     She is working as [an occupation 1] at [an agency] and was starting [another occupational] placement. Her husband is working as [an occupation 2]. They send money back to India to support their children.
·     She, her husband and two children had each applied for visitor visas but only two were granted.
·     In December 2017, [Ms A], a fellow protestor whom she knew, was missing for two days. [Ms A] was found dead with her hands bound and mouth covered. She believes [Ms A] was killed because they were unable to locate her and killed [Ms A] instead.
·     The factory [makes a product] and exports the product to different places. This caused noise and air pollution, along with dust, skin conditions and asthma. She first noticed these issues two months after the factory opened in either September or October 2008. After noticing these issues, she then complained to [Leader A]. She confirmed that the factory did not cease operating in 2008.
·     She explained that the LDF supported the factory because of the job opportunities the factory created. She added that the BJP, who are now in power, also support the factory for the same reason.
·     She sought assistance from people other than the church but none was offered until they approached [Candidate A] in February 2016 but he ultimately withdrew his support. [Candidate A] had promised to stop the factory from working if he obtained power in the legislative assembly.
·     The first protest occurred at the factory’s gates in 2009 and in response, the factory filed a case against them. This case has been resolved but she is not sure when that occurred. Another case involving the [number] women and herself is still before the courts. Others involved in that case withdrew in 2015 once they were offered jobs by the company.
·     She stated that her role as a leader was to coordinate the protests and to organise medical camps in the local area. She would organise the protests by word of mouth at the church. The medical camps were created in February or March 2014 to make people aware of the health risks caused by the factory. As a result of the medical camps, their movement received increased support from the community and their numbers rose from [number] to a peak of approximately [larger number]. Additionally, the attention the medical camps brought resulted in the factory closing down for a day.
·     She had been attacked on two occasions:
o   The first attack occurred in 2009 and she lodged a report with the police. Instead of assisting her, the police assisted the company by charging the protestors and taking action against them.
o   The second attack occurred in August 2014. A large number of people entered her house, broke furniture and the television, and assaulted her, her [Brother A] and her mother. The assailants had a sword and they also tried to attack her daughter. The attackers were screaming bad words. She was hospitalised for one week following the attack. Her [Brother A] and her mother also sought treatment.
·     In 2014, she lodged a complaint against the factory in [Court 2]. In her complaint, she alleged that due to the company’s actions, there was a lack of drinking water and that she had been attacked in her home. The case is still pending and she does not have any documentation about that case.
·     The factory offered money and jobs to some of the protestors. Some of the protestors took the offers but she did not. Those who accepted the factory’s offers then “moved against” those who did not.
·     She is still attempting to organise protests against the factory from Australia. The factory has threatened her daughter. Her daughter remains in the same area and is living with her aunt, that being [the primary applicant’s] sister. A week before the interview with the delegate, perpetrators threatened her daughter and inquired as to the whereabouts of [the primary applicant].
Summary of the delegate’s decision

The delegate’s reasoning in support of their decision to refuse the application is summarised as follows:
·     The delegate accepted the applicants’ identities as claimed. Further, the delegate accepted [the primary applicant’s] claim that there was conflict between the factory and the local community in [Town 1].
·     The delegate referred to country information which indicated protest action against the factory originated in 2006 and an attack on the factory office occurred on [a day in] November 2008. Following the attack, police registered a series of cases, including vandalism and assault on police personnel, against nearly [large number] residents of [Town 1]. Further, the decision to close the factory for one month was made, allowing various departments, including [two named] to inspect the factory. [A prominent named politician] supported the protestors.
·     On the basis of the address in her Indian passport, the delegate found that it was plausible that [the primary applicant] was present in [Town 1] when some of the protest action took place. However, the delegate was concerned with the applicant’s lack of knowledge with respect to the attack on the factory office [in] November 2008 and the subsequent closing of the factory for one month. The delegate was further concerned by the applicant’s lack of knowledge of protests organised by [Leader A] before 2009.
·     The delegate found the applicant’s claim that a medical camp she organised in 2014 made residents aware of health hazards posed by the factory to be implausible. The delegate explained that protests had been underway for several years by 2014 and the link between the factory and health risks had been established. Additionally, the delegate stated that no available country information indicated there had been a major protest at the factory after 2009.
·     The delegate placed little weight in the supporting documentation provided by the applicants due to concerns about [the primary applicant’s] credibility. Despite this, the delegate was prepared to accept that [the primary applicant] was a low-level supporter and attended some protests. However, the delegate did not accept that [the primary applicant] had an adverse profile because of her support of the protests against the factory. Nor did the delegate accept that [the primary applicant] was a leader of the protests.
·     With respect to the court case, the delegate found that, on the basis of [the primary applicant’s] claims to have been acquitted in 2014, she had equal access to the courts as the factory and had used it in equal measure.
·     The delegate found [the primary applicant’s] claims with respect to the two attacks on her person, and her claim that protest action continues presently, were implausible and that she had embellished her claims in order to strengthen the protection visa application. Due to the delegate’s overall concerns with [the primary applicant’s] credibility, the delegate placed little weight in the advocate’s letter.
·     The delegate found there was no credibility to [the primary applicant’s] claim that she was discriminated against by the police or anyone else because of her Christianity.
·     Ultimately, the delegate was not satisfied there was a real chance that if [the primary applicant] returned to India she would be persecuted for a refugee reason. The delegate was also not satisfied that as a necessary and foreseeable consequence of [the primary applicant] being removed to India, there was a real risk she would suffer significant or serious harm.
Claims and evidence provided to the Tribunal
The review application
On 23 February 2019, the applicants lodged an application for review of the delegate’s decision with the Tribunal. The first representative was also appointed to represent them before the Tribunal.
On 9 April 2020, the Tribunal was notified that another registered migration agent had been appointed to act as the applicant’s representative and authorised recipient, namely Mr Simar Hermis (MARN 1464902) (the second representative).
On 22 February 2022, [the primary applicant] requested that her review application be determined on a priority basis. In support of the request, the Tribunal received a letter from [the primary applicant] dated 3 February 2022 specifying that her sister, who has been caring for [the primary applicant’s] children and has [number] children of her own, is unable to continue caring for [the primary applicant’s] children. [The primary applicant] also stated that she was experiencing mental health issues and that her brother and sister-in-law were dead. The request was supported by:
·     A mental health care plan from [a named doctor] dated 8 December 2021 specifying that [the primary applicant] was suffering from anxiety and depression.
·     Two untranslated death certificates attesting to the death of:
o   [Name], a male, who died at a hospital in Thiruvananthapuram [in] October 2019; and
o   [Name], a male, who died at a hospital in [Country 1] [in] February 2021.
·     [Number] untranslated birth certificates attesting to the birth of [specified children], namely:
o   [Names and dates of births deleted].
On 8 March 2022, the Tribunal refused to grant the priority request.
The first hearing on 11 and 14 November 2022
On 15 September 2022, the Tribunal wrote to the applicants and invited them to attend a Tribunal hearing to give evidence and present arguments on 30 September 2022.
On 23 September 2022, the Tribunal received a response from the second representative indicating the applicants would attend and participate in the hearing.
On 27 September 2022, the Tribunal advised the applicants that due to circumstances outside of the Member’s control the hearing had been postponed until 26 October 2022.
On 24 October 2022, the second representative advised the Tribunal that [the secondary applicant] had ‘suffered a medical emergency’ and would not be available for the hearing.
On 25 October 2002, the Tribunal agreed to postpone the hearing. The Tribunal further offered that if it would assist [the secondary applicant], his evidence at hearing may be taken by telephone.
On 3 November 2022, the Tribunal invited the applicants to attend the postponed Tribunal hearing on 11 November 2022.
Pre-first hearing submissions and evidence
The Tribunal did not receive submissions or evidence prior to the first hearing.
The first hearing: supporting documents and oral evidence
[The primary applicant] appeared in person at the first hearing to give evidence and present arguments. That first hearing took place over two days, commencing on 11 November 2022 and concluding on 14 November 2022. The hearing was conducted with the assistance of an interpreter in the Malayalam and English languages. [The secondary applicant] was available to participate in the first hearing by telephone however the Tribunal did not take evidence from him as it formed the view during the course of the hearing that it was appropriate to ensure that he have an opportunity to present his evidence and give arguments in person rather than over the telephone.
On 14 November 2022, the Tribunal received from [the primary applicant] a copy of her husband’s Discharge Referral report from the [named] Hospital. This report provided that [the secondary applicant] was admitted to hospital on 24 October 2022 for ‘an elective coronary angiogram’ which demonstrated ‘critical LM disease with moderate LV dysfunction’ which resulted in him undergoing an ‘emergency CABG’ on 25 October 2022. He had been discharged from hospital by [a named doctor] on 2 November 2022.
Post-first hearing submissions and evidence
The Tribunal did not receive any submissions or evidence following the first hearing and up until the applicants attended the second hearing on 21 April 2023.
The second hearing on 21 April 2023
On 28 March 2023, the Tribunal invited the applicants to attend a second hearing to give evidence and present arguments on 21 April 2023. The primary purpose of the second hearing was to allow [the secondary applicant] an opportunity to give evidence and present arguments in person.
The second hearing: supporting documents and oral evidence
The applicants appeared in person before the Tribunal on 21 April 2023 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Malayalam and English languages.
At the commencement of the second hearing, the applicants provided a Tribunal officer with their passports. The Tribunal officer made photocopies of these documents and returned them to the applicants. The Tribunal notes that [the primary applicant] currently holds an Indian passport that was issued to her in [Australia] [in] 2021 and is set to expire [in] 2026.
Post-second hearing submissions and evidence
The Tribunal did not receive any submissions or evidence following the second hearing.
Where relevant, the oral evidence of each applicant is discussed in the Tribunal’s findings and reasons below.
CONSIDERATION OF Claims and evidence
Nationality: Country of reference/receiving country
The applicants claim to be citizens of India and provided to the Department copies of their Indian passports issued [in] 2009 and [2015] respectively. The delegate was satisfied that the applicants were using their own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicants are citizens of India. The Tribunal accepts that India is their receiving country for the purpose of assessing their claims for protection.
Credibility
Assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[1] There are special considerations in relation to asylum seekers. The Full Federal Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
[1] Fox v Percy (2003) 214 CLR 118
As credibility assessment is not an exact science, great care must be taken to ensure that the approach taken to credit assessment is reasonable, reflective and fair. The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia.[2] As a threshold principle, in the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably.
[2] For example, Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
The objective of taking a ‘reasonable approach’ to fact-finding is supported in numerous judgments and commentaries. As Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
The courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[3] A similar approach is taken in the Department’s Refugee Law Guidelines[4] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[5] which provides useful guidance for this Tribunal.
[3] SZLVZ v MIAC [2008] FCA 1816 at [25]
[4] Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines)
[5] UNHCR Handbook, re-issued February 2019 at [203]–[204]
In regard to decision-making generally, researchers have provided useful insight into subconscious influences on credibility findings. Research in Canada found that refugee decision-makers have unreasonable expectations of memory, and that ‘decades of psychological research’ has demonstrated that memory is incomplete and changes over time, and that inconsistencies in testimony should not be used ‘mechanically’.[6] The Tribunal is conscious that there may be factors that consciously or otherwise influence decisions[7] and that one study found that tribunal members may rely on assumptions which can be inconsistent with psychological literature.[8]
[6] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law, Volume 22, Issue 4, 469–511, H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9
[8] Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented.’
The Tribunal is guided by these decisions, research and commentaries, and is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, trauma and/or cultural issues. A person may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons.[9] As suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[10] such factors are taken into consideration both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.
[9] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility (July 2015)
[10] Ibid
Having outlined the Tribunal’s approach to fact-finding, in determining whether an applicant is entitled to protection in Australia, it remains necessary to make findings of fact on relevant matters. In assessing the credibility of an applicant’s claims, the Tribunal accepts that the benefit of the doubt be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also mindful that if it makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[11] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[12]
[11] MIMA v Rajalingam (1999) 93 FCR 220
[12] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547
The mere fact that a person claims fear from harm for a particular reason does not establish the genuineness of the fear or that it is ‘well-founded’ or felt for the reason claimed. Likewise, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or that it amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[13] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does it have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for the applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance.[14]
[13] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 91, Prasad v MIEA (1985) 6 FCR 155 at 169-170
[14] Sun v MIBP [2016] FCAFC 52 at [69]
In the present case, the Tribunal takes into account each applicant’s evident lack of familiarity with the Tribunal setting and limited English language proficiency. With this in mind, the Tribunal asked straightforward questions during the hearing, and paraphrased and checked each applicant’s responses where necessary.
The Tribunal does not consider things like minor changes in dates, minor details omitted from claims in the written application, or minor mistakes and omissions from an applicant’s personal history would, on their own, undermine an applicant’s credibility. However, when the evidence set out here, some of it on critical matters, is considered cumulatively, the Tribunal finds that these minor errors, inconsistencies and omissions together take on more significance and so have been given weight.
Analysis, reasons and findings
The issue in this case is whether the applicants are refugees or persons who meet the criterion for complementary protection. The Tribunal also needs to consider whether either applicant is a member of the same family unit as a person who is a refugee or meets the criterion for complementary protection. A summary of the relevant law, mandatory considerations and an extract of key provisions of the Act is set out in the Attachment.
At the second hearing, [the secondary applicant] confirmed that he did not have any protection claims of his own and that it was his wife who had claims for protection. It is also not evident on the material before the Tribunal that a claim for protection in relation to [the secondary applicant] has arisen. Accordingly, the Tribunal has focussed its consideration upon whether [the primary applicant] (hereinafter referred to as ‘the applicant’) is owed protection obligations.
In the first hearing, the applicant gave evidence that a Justice of the Peace helped her to fill in her protection visa application form. The applicant could not recall the name of this Justice of the Peace but stated that this person helped translate the information on the form to enable its completion. This person also helped her prepare her written statement of 14 June 2016. The applicant also confirmed that she received immigration assistance from the first representative and the second representative. She told the Tribunal that everything in her protection visa application was true and correct and there were no mistakes or changes required to correct the record.

During the first hearing, the Tribunal discussed with the applicant her identity, background, family, travel and migration history, employment, what she claims happened to her in India and why she fears returning there. The Tribunal formed the impression at hearing that the applicant drew on incidents and experiences that she had in India but that she tended to exaggerate and misconstrue the consequences of these, with a view to bolstering her claims for protection. The Tribunal also formed the impression at hearing that the applicant drew upon other incidents involving, and experiences of, other individuals and misrepresented herself as having been involved in those incidents and experiences with a view to bolstering her claims for protection. The Tribunal is also concerned that the applicants have provided, or allowed the provision of, false information and bogus documents in support of their Australian visa applications including the protection visa application under consideration by the Tribunal. Overall, the Tribunal did not find the applicant to be a credible witness. The Tribunal’s full assessment follows.
Background and immigration history
In the first hearing, the applicant gave evidence about her family situation as follows. In India she has two children, [names, ages, gender specified]. She also has two [sisters] namely [Sister A] who was [age] years old, and [Sister B] who was [age] years old. Her two children live with [Sister A] at [Sister A’s] house in Trivandrum. She is in regular contact with her children and her sisters through the video call function on the [named] platform. In Australia she has her husband who is [an occupation 2]. She also told the Tribunal that she had never been employed in India but had ‘volunteered’ for the [Town 1] Parish community and completed a [degree].
The applicant clarified the information that she provided in her protection visa application form in relation to her residential addresses in India. She explained that throughout her life in India she has lived in the same house from birth – [specified], [in Town 1], Trivandrum. She explained that the other address in [another town] provided on her form was her husband’s residence and that he moved into her family’s house in [Town 1] after their marriage.
In the second hearing, the applicant’s husband confirmed that he married the applicant [in] May 2001. He told the Tribunal that he had owned a [company] which had been involved in [specified] contract work in [Country 1] and [Country 2]. He confirmed that he had worked outside India for significant periods of time during his marriage. He worked in [Country 1] between 1997 and 2009. He also worked in [Country 2] between 2010 and 2015. His work primarily involved [specified projects]. During the time that he worked in [Country 2], he returned to India on an annual basis, usually in December. He moved back to India from [Country 2] in September 2015. He lived with the applicant in her family home in [Town 1] during his return visits to India.
Visitor visa application
The applicants were each granted a visitor visa on 15 March 2016.
Asked at the first hearing whether she or her husband had provided any bogus documents in support of their visitor visa applications, the applicant said that she did not know as it all went through an agent. Asked the identity of this agent, the applicant stated that she did not know. She said that her husband went to Chennai to ‘apply for the visas’ and was there for two days in March 2016. She confirmed that her husband did not own any property in Chennai.
At the second hearing, the applicant’s husband confirmed that he:
·     did not own any property in Chennai;
·     had never been employed in the role of [occupation 3] by a company in India; and
·     had never been employed by a company named ‘[Business 1]’.
Utilising section 424AA of the Act, the Tribunal put to the applicants at the conclusion of the second hearing that it had obtained a copy of their visitor visa application. The Tribunal drew to the applicants’ attention that their application was supported by various documents, including:
·     A signed letter from the applicant that was addressed to an Australian immigration officer, in which had been stated that the applicant’s husband was a Senior [occupation 3] at [Business 1] in Chennai
·     A signed letter from [name], HR Director at [Business 1] dated 3 March 2016 that was addressed to an Australian immigration officer, in which it had been stated that the applicant’s husband was an [occupation 3] at [Business 1]
·     A letter of offer of employment from [Business 1] dated 25 January 2011 and addressed to the applicant’s husband offering him employment in the role of [occupation 3]
·     Payslips from [Business 1] indicating that applicant’s husband was paid as an employee of [Business 1] for the performance of his duties in the role of [occupation 3]
·     A Valuation Report for a flat located in Chennai in which it was stated that the applicant’s husband owned that property.
The Tribunal explained that, based upon their testimony across two hearings in relation to the applicant’s husband’s employment history and property ownership, it appeared that these documents were bogus and that false information had been provided in support of their visitor visa application. The Tribunal then explained that this information might lead the Tribunal to find that the applicants were willing to make, or allow the making of, false information in support of an Australian visa application as well as provide, or allow the provision of, bogus documents in support of an Australian visa application. The Tribunal then explained that if it reached that finding, it would conclude that the applicants have a propensity to fabricate claims and evidence in order to achieve an immigration outcome and that neither applicant was a witness of truth and that this may form a reason, or part of a reason, in the Tribunal affirming the delegate’s decision.
The applicants elected to comment on or respond to the information rather than request additional time to do so. By way of response, the applicant’s husband stated that he and his wife simply gave their ‘details’ to the agents who then lodged the visitor visa application. He stated that the agents gave the documents to the Department. He stated that the agents did not show the applicants these documents or allow the applicants to see what documents were submitted before lodgment. The applicant then made the following statement:
I want to tell you one thing. We didn’t purposely cheat the Australian government or the rulers to come over here. Our main intention was to move away from the country due to the issues we were facing. For that reason, we took help from an agency to get the visiting visa to come over here and similarly we took help from a solicitor to provide all the documents on our behalf. We did it with the good intention that everything will be done according to the rules and regulations.
The Tribunal then asked whether the applicants wished to reconsider their responses as some of these documents, and others included with the visitor visa application, contained the signatures of the applicant, the applicant’s husband and the applicant’s sister [Sister A]. The Tribunal was then told that the agent brought the documents to their house in [Town 1] and that the applicants along with [Sister A] signed the paperwork. The applicants stated that there was not enough time to read the documents prepared by the agent and they trusted the agent so signed the various documents without reading them. Asked whether they had any suspicion that the documents were bogus, the Tribunal was told that they wanted to ‘get out of the situation at the earliest’ and trusted their agent.
The Tribunal has considered the applicants’ responses and does not accept that they had no understanding or awareness of the possibility that their agent had provided false information and bogus documents to the Department in support of the visitor visa application. The Tribunal notes the changing nature of the explanations given to the Tribunal on this issue where at first it was contended that they had no visibility over what had been lodged and later stated that they did see the documents that bore their signatures but did not review them. In reaching this finding, the Tribunal relies upon the applicant’s own evidence at the first hearing that she knew that their agent in India had provided fabricated evidence in support of the visitor visa application. Therefore, the Tribunal finds that the applicants provided, and allowed the provision of, false information and bogus documents to the Department in support of their visitor visa application.
The Tribunal acknowledges that genuine asylum seekers may provide, or allow the provision of, false information and bogus documents to various authorities in order to facilitate their flight from harm. Nevertheless, the above finding has been considered by the Tribunal in the context of its assessment of the information and documentation provided by the applicants, either directly or through a representative, to the Department in support of their protection visa application.
Environmental activism
The applicant claims to be an environmental activist having participated in various protest and other actions in response to the operations of a [specified] factory near her family home in [Town 1], Kerala, India. This factory was owned by [Business 2] (the company) and established at [Location 2] in Trivandrum, Kerala, India. The applicant has also claimed that that the Communist Party of India (Marxist) led Left Democratic Front government of Kerala supported the establishment and operations of the factory. She claims, however, that health concerns of residents who lived in the vicinity of the factory were neglected, which led to frequent protests.
At the first hearing, the Tribunal explored the applicant’s various claims in relation to the nature of, and degree of commitment towards, her environmental activism, including:
·     her knowledge of incidents that occurred before the factory commenced operations in April 2009;
·     her leadership role and participation in the protest movement;
·     her role in organising ‘health camps’ for local residents who suffered from pollution-related skin, eye and lung conditions;
·     her role in lobbying political figures in the lead-up to the 2016 Kerala Legislative Assembly election; and
·     her activities in support of the environmental movement since arriving in Australia.
Knowledge of incidents before the factory commenced operations in April 2009
Asked to explain when she first became aware of the company’s plans to establish and operate the factory at the [Location 2], the applicant stated May or June 2008. People at her local church told her the factory would soon be established.
Taking into account information specified in the Writ Petition, which the applicant provided to the delegate through the first representative, the Tribunal asked the applicant about the company’s establishment of the factory. The Tribunal explored the degree of the applicant’s knowledge of the steps taken by the company to secure the necessary consents and approvals from relevant Kerala State authorities in 2007. It became quickly apparent that the applicant had no knowledge of such matters.
Taking into account the information specified in the Writ Petition, particularly Exhibit P10, about a violent protest at the factory in November 2008, the Tribunal explored whether the applicant had any knowledge of, or involvement in, that protest. According to various newspaper reports set out in Exhibit P10 to the Writ Petition, around [number] people ransacked the factory on [a day in] November 2008 before it commenced operations. A mob had set ablaze vehicles and a section of the factory building before destroying office equipment at the factory. As a result, police had registered a series of cases, including vandalism and assault on police personnel, against nearly [number] residents of [Town 1]. The applicant told the Tribunal that she could neither recall this incident nor whether she had participated. Asked at hearing whether she knew anyone who had been arrested in 2008 by the police, the applicant stated that she did not. She also confirmed that she had not been arrested by the police in 2008.
Taking into account the information specified in the Writ Petition about an inspection of the factory site by State environmental officials, the [Official B] and protest organisers [Leader A], [and named church officials] on [a day in] January 2009, the Tribunal explored whether the applicant had any knowledge of, or involvement in, that site inspection. The applicant told the Tribunal that she had not been involved in that inspection and did not know what happened at that inspection.
Taking into account the information specified in the Writ Petition about the company requesting the police to investigate whether protestors had caused an explosion at the factory on [a day in] February 2009 which killed [an official] and company employee site, the Tribunal explored whether the applicant had any knowledge of, or involvement in, that incident. The applicant told Tribunal that she knew a person was killed there and insisted that she and other protesters were not involved in that incident.
Leadership role and participation in the protest movement
Asked to explain how her interest in this environmental issue arose, the applicant told the Tribunal that she only became concerned about the factory after it began operating and polluting the local area with smoke. The factory was about three minutes walking distance from her family home in [Town 1]. She spoke to a number of women at her church after prayer time about the smoke coming from the factory. In January 2009, she and a group of women went to the gates of the factory site and asked the ground staff to ‘stop the smoke’. They did not enter factory site. Later in the hearing, the applicant stated that she remembered one occasion when [Leader A], her and two other women went to the factory at the end of January 2009 and ‘told them to stop it’.
Asked to explain how in February 2009 she was elected as a ‘convenor’ of [number] women and led them in protest action against the company, the applicant stated that there had not been a formal election. She explained that [Leader A] appointed her to this role but was unable to clearly explain the duties of this role or why he had selected her to ‘convene’ the group.
The Tribunal then asked the applicant about a document set out in Exhibit P14 attached to the Writ Petition. This document is a letter dated [in] May 2009 from the company’s General Manager (Operations) to the local police authorities requesting the authorities provide ‘adequate and effective police protection for the smooth functioning of the company free from the interference of’ [Leader A], the applicant and [number] other respondents specified in the Writ Petition. Of particular interest to the Tribunal was that the name and address of each of these respondents were set out in this letter. The applicant’s details appeared on the fourth page of this letter as follows:
[Variant of the applicant’s name], [variant of her address], [Town 1], Thiruvananthapuram
Asked to describe what she had done to be specifically named in this letter, the applicant explained that she was selected by the group to speak with the company about pollution and that she was the person who told the [church leader] to ‘gang up’ against the company. Asked how she felt when she discovered that she was named in this letter, she stated that she was ‘scared’ at first because the police now knew about her but also felt proud for ‘standing up’ against the company.
She later told the Tribunal that after the attack on her home in August 2014 she became frightened of further reprisals and did not lead the protest movement from that point in time. She said that she was disappointed that the protest movement began to dissolve as many protestors began working for the factory in or around 2015 but insisted that she remained committed to her environmental cause.
Role in organising ‘health camps’
Taking into account the information specified in the Writ Petition about the factory commencing operations [in] April 2009, the Tribunal asked the applicant about her role in organising the ‘health camps’ for the affected local community. In particular, the Tribunal asked where they were, who funded them, how many people would attend, what information she would gather at these health camps and how she used that information in support of her environmental activism. The applicant explained that the ‘health camps’ were always led by staff at primary health centres. They were part of ordinary routine medical checks performed by local health clinic staff in the area. Asked what she did at these ‘health camps’, the applicant explained that she would ‘just ask the doctor and nurses about whether the factory pollution was causing the skin rashes’. At a later point in the hearing, the applicant claimed that from 2010 she ‘made people aware of skin tests and eye problems happening about the factory’.
Asked to explain the pollution’s impact upon the local residents, the applicant stated that there were problems with the water supply, but was unable to articulate what these problems were. Asked to explain whether the authorities investigated whether the water supply had been polluted by the factory, the applicant did not know but conceded that after 2009 there ‘not much problems’ with the safety of the water supply.
Political lobbying
Taking into account the information provided by the applicant in paragraphs 17 and 18 of her statutory declaration of 21 October 2017, the Tribunal asked the applicant her role in seeking political support from political figures in the lead-up to the 2016 Kerala Legislative Assembly election. Asked for the identity of the candidates that she lobbied, the applicant responded that she lobbied almost all the political leaders. Asked whether she could recall their names, the applicant could only recall one, namely [Candidate A]. Asked to tell the Tribunal how many times she had met [Candidate A], whether she met with him alone and describe what was discussed at these meetings and what was the outcome of these meetings, the applicant stated that she could not remember.
Activism in Australia
Asked whether her environmental activism has been ongoing since she arrived in Australia in May 2016, the applicant explained that two friends from India called her to ask whether she wanted to help them do something ‘against the company’. She then transferred about [amount range] to them through Western Union. The money was used to pay a laboratory to perform tests on the local water and help some other people with travel expenses. Asked exactly when she transferred these funds, the applicant could not recall. Asked whether she had evidence of these transfers such as receipts, the applicant said that it was sent about four or five years ago and she did not have these receipts. Asked why she had not raised these particular claims or provided evidence in this regard earlier, she explained that she did not know about the procedure to do so.
Findings
At the conclusion of the first hearing, the Tribunal put to the applicant various concerns in relation to her claims about the nature and extent of her environmental activism. The Tribunal raised its concern that there was a lack of persuasive evidence, particularly documentary evidence, to support her claims that she had participated in any protests against the company and that she had any discernible profile as an environmental activist. The applicant responded that, if the Tribunal needed it, she could obtain further documentary evidence to support her claims and offered to have a psychologist provide evidence. The Tribunal reminded the applicant that she had been represented by registered migration agents in connection with her protection visa application well before the first hearing and that it was willing to receive and consider any further evidence she provided before reaching its decision. The Tribunal has not received any further documentary evidence from the applicant after the first hearing.

(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 1450

8 May 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness