1906131 (Refugee)

1906131 (Refugee) [2024] AATA 4202 (16 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1906131
COUNTRY OF REFERENCE:                   India
MEMBER:Rachelle Johnston
DATE:16 July 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 16 July 2024 at 4:11pm
CATCHWORDS
REFUGEE – Protection Visa – India – feared harm in India from the BJP and political parties – political opinion – joined the Nationalist Congress Party – limited roles in the NCP and BJP – applicant was not physically harmed at any time whilst in India – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 56, 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 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 March 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of India, applied for the visas on 19 June 2017. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Claims and evidence before the Department
Protection visa application
On 19 June 2017, the first named applicant (the applicant) lodged an application for a protection visa. The second named applicant is the applicant’s wife and was included in the application as a member of the same family unit. She did not put forward her own claims for protection before the Department and sought to rely on the applicant’s claims.
The applicant, in his protection visa application, provided the following:
·     He was born in [year] in [City 1][a village], Gujarat, India.
·     Between [birth] and 1997 he lived in [City 1]. Between 1997 and March 2017 he resided in Ahmedabad.
·     He speaks, reads, and writes Gujarati and reads and writes English and Hindu.
·     He married on [date November] 2003 in Ahmedabad. His son was born in [year]. His son, mother, and father remain in India.
·     He completed his schooling in [City 1] up until [a grade].
·     Between 1997 and 2006 he worked as [an occupation] in Ahmedabad. In April 2006 he commenced working in a [business] in Ahmedabad and continued working there until February 2017.
In a statement attached to his protection visa application the applicant made the following claims:
·     He is seeking protection in Australia so that he does not have to go back to India where he was threatened to be killed by the members of his previous political party.
·     He was a member of the BJP, but he left the party after he realised that most of the party leaders were involved in corruption, and he joined the Nationalist Congress Party (NCP) in 2014.
·     Being a businessman, he always desired to be a significant presence in his local and business community. The ideology of his party is strengthening the force of nationalism with an emphasis on the egalitarian and secular ethos of the Indian Republic and combating fundamentalism and social transformation and economic emancipation of the Indian society, which comprises of the schedule castes, schedule tribes, backward class and religious minorities such as Sikhs, Muslims, Christians, Parsis and Buddhists.
·     The Bharatiya Janta Party (BJP) is currently in power in both Centre (Government of India) and in his state where he was living in India. It is a right-wing party with close ideological and organisational links to the Hindu nationalist Rashtriya Swayamsevak Sangh (RSS).
·     The situation was aggravated when he refused to join the BJP. They started threatening him with an explicit threat of harm. He tried to repeatedly make a complaint with the local police station (responsible for his area), but in vain, the police officers neither took his complaint, nor offered any protection and instead asked him to comply with the requests of the BJP should he want to stay peacefully.
·     The office bearers of these people are very well connected and highly influential with the government dispensation of BJP and they can do anything and can go to any extent, should they decide.
·     During the recent municipal election some businesses were asked to pay ten lacks Rupees depending on their business activities and small businessmen paid thousands of rupees. He raised the illegal party donation issue with the local BJP leader on behalf of the businessmen. He informed them what was going on in the name of party donations but surprisingly they took it very lightly and told him that they are going to make enquiries about it because they did not believe that BJP members are involved in any illegal activities.
·     After a few months he tried to contact them, but they refused to discuss it.
·     In the recent [Village 1] election he was in [a] committee for the NCP party candidates in his area and he had a significant contribution for the NCP party candidates. He campaigned against the BJP candidate and asked others to vote for the NCP party. The BJP suffered a humiliating defeat in the [Village 1] election. It comes less than a year before the assembly elections due near the end of this year. They became more aggressive towards him and threatened to kill him. They asked local transport business owners to pay more money if they want to continue their businesses.
·     After failing to stop their illegal activities he organised a rally from one side of the area to another, attended by most of the farmers including people from different walks of life to condemn the BJP’s activities. They carried placards and banners with slogans against the local BJP leaders and their corruption.
·     The verbal abuse continued for a while and mobs led by activists came to his house and threatened him with direct consequences for himself and his family. They ransacked his business and house and threatened his family members.
·     He was terrified and could not sleep for many days. He got worried about his family members and decided to leave India immediately. They threatened to kill his family members.
Interview with the delegate and additional evidence
The applicant attended an interview with a delegate of the Department on 27 February 2019. The second named applicant did not attend the interview. The interview was conducted with the assistance of an interpreter in the Gujarati and English languages. In the interview, the applicant responded to questions and elaborated on his claims. The Tribunal has listened to a recording of the interview. Where relevant, the applicant’s oral evidence at the interview is referred to in the Tribunal’s analysis below.
The Departmental delegate requested the applicant provide any further documents in support of his claims to the Department within seven days of the Departmental interview. On 6 March 2019 the applicant provided the Department with copies of his NCP Membership Card, his BJP Membership Card, and his travel business card.
The delegate’s decision
On 8 March 2019, a delegate of the Minister refused the applicant’s protection visa application. The delegate did not accept the applicant was a member of the BJP or the NCP. The delegate found the applicant’s claims to be unsubstantiated and not credible. The delegate was not satisfied that the applicant is a refugee, as defined by s 5H(1) of the Act or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to India, there is a real risk that he will suffer significant harm as defined in s 36(2)(aa) of the Act. The delegate therefore found the applicant is not a person in respect of whom Australia has protection obligations, and nor is his wife.
Evidence before the Tribunal
Review application
On 15 March 2019, the applicants lodged an application for review of the delegate’s decision. They provided the Tribunal with a copy of the delegate’s decision.
The hearing
The applicant appeared before the Tribunal on 1 July 2024 to give evidence and present arguments. The second named applicant did not appear at the hearing. The Tribunal confirmed with the applicant the second named applicant did not intend to give evidence before the Tribunal. No witnesses were called to give evidence in support of the applicant’s claims. The applicant was not represented in relation to the review.
The hearing was conducted with the assistance of an interpreter in the Gujarati and English languages. The Tribunal confirmed with the applicant they were able to understand the interpreter. The applicant was able to answer questions without hesitation and his answers demonstrated an understanding of the questions being put to him.
The Tribunal is satisfied that the applicant had a meaningful and genuine opportunity to be heard, present their case, and participate fully in the hearing. Where relevant, the applicant’s oral evidence to the Tribunal is referred to in the analysis below.
CRITERIA FOR A PROTECTION VISA
The relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality and family unit
The applicants claim to be citizens of India and provided copies of their Indian passports to the Department. The delegate was satisfied the applicants are using their own identity and that they are citizens of India. In the absence of evidence to the contrary, the Tribunal accepts this and finds the applicants are citizens of India and India is their receiving country for the purposes of assessing their claims for protection.
The Tribunal is satisfied that the applicant and second named applicant married on [date November] 2003 and that they remain married. The Tribunal is satisfied that the second named applicant is a member of the same family unit of the applicant as defined in s 5(1) of the Act.
Analysis, reasons and findings
In the hearing, the applicant discussed his protection claims, why he fears returning to India, his political history in India, and his work, family, education, and travel history. Whilst the Tribunal is satisfied the applicant was drawing on personal experience in describing aspects of his political involvement in Ahmedabad, it is of the view he has exaggerated the extent of his political involvement in the Bharatiya Janata Party (BJP) and Nationalist Congress Party (NCP) and the harm he experienced in India in order to enhance his protection claims.
The applicant explained a friend in Australia assisted him to complete his protection visa application, and although he can only remember a little bit of it now, at the time he submitted it the details it contained were true and correct. He stated he wanted to come to Australia because he was facing lots of difficulties in India due to political parties, he was being harassed a lot, and so he wanted to leave the country. He confirmed at hearing he feared harm in India from the BJP and political parties, although stated the situation in which he came here, and a long time has passed, so he doesn’t know what the situation is now.
Past political involvement and harm – BJP and NCP
At hearing the applicant explained he was a member of the BJP for about four to five years but towards the end of 2015 he left the BJP to join the NCP. He stated he attended a rally on 25 August 2015 in relation to the Patidar reservation movement, explaining that he fought as part of that campaign to remove the reservation so that people in his community who studied hard and got good marks could get places in universities based on merit, rather than reserved groups getting places.
When asked why he had first joined the BJP, he explained he had an interest in political parties and he wanted to join other people and do something new. The Tribunal asked the applicant what his role in the BJP was and he stated there was not any personal work, but if there was a small or big problem in his area, they would inform the main party members. He explained he left the BJP in order to support the reservation movement and confirmed that was his only connection to the NCP. In discussing his role in the NCP, he explained it was the same as his BJP role and that he worked for and supported the NCP. When asked specifically what his role involved, he stated if there was a small problem or a big problem, he would inform a party worker of the NCP. The Tribunal asked if he had any specific role or formal function within the NCP and he stated no.
The Tribunal asked the applicant whether he had been intimidated, harassed, persecuted, or harmed in any way in India. He explained if he was going in his car members of the BJP would harass him or remove air from the tires of his car. He explained sometimes they would take his lights or windshield and that small things were going on. When asked if any other type of harm occurred to him in India he stated no, nothing serious, but he was told things would happen to him or he would be killed. On further exploration with the applicant as to what this involved, the applicant explained there were verbal arguments, and he was told to stay with the same political party and was asked why he attended rallies. He stated the verbal arguments would happen at any time if he was standing somewhere. The Tribunal asked if anything else happened to him in India, other than the verbal arguments and incidents involving his car, and he stated nothing apart from that occurred.
In discussing when the verbal threats and other incidents occurred, the applicant stated 2016 was a difficult year for him and at that time if he was passing on the road he would be harassed. He stated if he was going out for a walk and these people were drunk, they would even kill him. The Tribunal asked why he would be killed by BJP members in circumstances where they did not physical harm him at all in the years following the August 2015 rally. The applicant stated at that time there was only verbal arguments, but he was emotionally disturbed, and his wife said to him what if he was killed, what will she do, and so they left India. The Tribunal confirmed with the applicant again that he did not experience any other past harm in India.
The Tribunal also queried with the applicant why he was harmed given he did not have a large political profile and given his limited roles in the NCP and BJP. In response the applicant reiterated the purpose of the Patidar reservation movement and its connection to the NCP.
The Tribunal discussed with the applicant the documents he provided to the Department after his Departmental interview. The Tribunal raised with the applicant that the NCP membership card did not appear to have any official details on it, including the NCP district or assembly or membership expiry date, and that it only contained an NCP logo. The applicant stated the card was only for his name and linked with the NCP as his card. When the Tribunal put it to the applicant that his NCP and BJP cards contained the same ID number and queried why that would be the case, he stated he is not sure and that because he worked with the NCP, he asked to get a card and they made him a card.
The Tribunal raised its concern with the applicant that based on the lack of details on the NCP card, including district and assembly details, and that the NCP and BJP cards contained identical ID numbers, the Tribunal may not accept them to be genuine documents. It explained this may lead the Tribunal to doubt the applicant’s credibility and find he has fabricated his claims about being a member of the BJP and the NCP. In response the applicant stated there is one town office and ten to twelve people in it and he wanted to work in the NCP so they made him a card and gave it to him and if he was at the State level, they would have a member level and everything. The Tribunal considered the applicant’s response but found it did not explain why his NCP card contains only his name and the NCP logo and no other organisational details and why the membership cards of two opposing political organisations, which the applicant joined across different years, would contain the exact same ID number. The Tribunal finds the copies of the NCP and BJP membership cards supplied by the applicant not to be genuine documents.

The Tribunal also raised with the applicant that it had concerns that aspects of his oral evidence were lacking in the type of detail the Tribunal would expect from someone speaking from personal experience. It explained, for example, for someone who claimed to be a member of the BJP and NCP, it would expect him to be able to speak about what drew him to those political parties, what his specific function was as a member of those parties, and what he did on a day-to-day basis beyond helping with small or big problems. The Tribunal explained the applicant’s evidence, when asked about his involvement in political parties, was brief and repetitive, and this may lead the Tribunal to doubt his credibility and find he has fabricated or embellished aspects of his claims and evidence. The applicant did not wish to comment in response to the Tribunal’s concern.
The Tribunal put it to the applicant there were substantial discrepancies in his evidence between what is written in his protection visa application and what he had stated in his oral evidence. The Tribunal explained in his protection visa application he had stated he was on [a] committee for the NCP party candidates, had raised illegal party donations with the local BJP leader on behalf of the businessmen, and that a mob led by activists came to his house and threatened him with direct consequences for himself and his family and ransacked his business and house. The Tribunal outlined that the applicant had stated at hearing that he had experienced verbal arguments and incidents involving his car only and that he was a regular member of the BJP and NCP but didn’t have a formal function in either party. The Tribunal explained the discrepancies in his evidence raises doubts for the Tribunal about his credibility.
In response to the Tribunal’s concern the applicant discussed other incidents of harm that occurred in India. He stated that he did attend another rally for the NCP against the BJP and that BJP members came to his house about seven to eight months after the August 2015 rally when he was in [City 1] for a job, and they had a verbal argument with his wife and threw belongings from one place to another but did not hurt his wife. He stated this was the only time anyone came to his home. When the Tribunal indicated to the applicant it may have difficulty accepting the other claims in his written protection visa application given his oral evidence at hearing, including that he was on [a] committee for the NCP party and that he was asked to pay money to the BJP and raised illegal party donations, he stated they did refuse to pay and did not give them anything. He explained in relation to the BJP seeking payments, they were not from a state level and didn’t want community support and just wanted to harass him and said if you want to do business you have to pay money. He explained he was being harassed because he was telling people to work for the NCP in relation to the Patidar reservation movement and with this movement the police would even come into the community and damage property and harass and assault people.
The Tribunal asked the applicant directly about the rally he referred to in his written claims attended by farmers. He explained small businesses and farmers gathered together as they had lost trust with the BJP and after the August 2015 rally the NCP organised a further rally with farmers. He explained this was connected to the Patidar reservation movement, with farmers and small businesses coming together so they would all get benefits.
The Tribunal considered the applicant’s evidence throughout the process and his responses to its concerns and is prepared to accept the applicant attended a rally on 25 August 2015 in Ahmedabad in connection to the Patidar reservation movement and that he was a community supporter of the reservation movement across 2015-2017. Country information before the Tribunal confirms a large rally led by Patidar Animat Andolan Samiti (PAAS) convenor Hardik Patel took place in Ahmedabad on 25 August 2015[1]. The applicant had a detailed understanding of the purpose of the Patidar reservation movement and consistently referenced its objectives throughout the hearing.
[1] ‘Hardik Patel: Face of Gujarat caste protests’, BBC News, 26 August 2015; ‘Gujarat remains tense after Patel caste violence’, BBC News, 27 August 2015; ‘Patels’ stir hits normal life in Gujarat’, Indian Express, 26 August 2015.
Whilst the Tribunal accepts the applicant held political views and participated in the Patidar reservation movement, the Tribunal does not accept on the evidence before it that the applicant was an official member of the BJP or the NCP, that he held any formal role in either organisation, that he was on the [committee] for the NCP party candidates in his area, that he had a significant contribution for the NCP party candidates, or that he campaigned against the BJP candidate. The applicant was unable to explain in any persuasive way, despite multiple questions being put to him, what his specific function as a BJP or NCP member was. His answers were brief and repetitive. He stated that his role in the NCP was the same as his role in the BJP and that his function extended to informing party members if there was a small or big problem in the area. The Tribunal would expect the applicant to be able to expand in some detailed way as to what his membership role in the BJP and NCP entailed, were he to be a member, given he claimed at hearing to have been a member across both organisations for more than seven years. The Tribunal would also expect someone providing strategic support and who is significantly involved in the NCP to be able to indicate what their party involvement entailed, beyond raising problems with more senior party members. The Tribunal finds the applicant’s BJP and NCP membership cards are not genuine documents, for the reasons discussed above.
The Tribunal is prepared to accept, given his community support of the Patidar reservation movement, that the applicant was involved in verbal arguments with BJP members, that these arguments included verbal threats against his life, and that at times his car was tampered with, including having the air removed from the tires, and the lights and windshield removed. The Tribunal accepts the applicant’s written claim that he complained about the threats to the local police station, and they did not respond to his complaints. Whilst the applicant did not advance this claim at hearing in detail and only described the police response to the Patidar reservation movement, the country information supports the police would have been unlikely to assist the applicant during the height of the movement[2].
[2] ‘Gujarat government orders inquiry into police action against Patidar protestors in 2015’, Scroll.In, 4 October 2017; ‘Patel reservation stir: Gujarat HC seeks reports on police atrocity’, The Times of India, 27 August 2015; ‘Six months after Hardik Patel’s reservation rally, more than 1,300 Patidars face criminal cases’, Scroll.In, 25 February 2016.
The Tribunal is also prepared to accept that as part of the broader Patidar reservation movement, the applicant joined a further rally with farmers agitating against the BJP and advancing the plight of the broader community in terms of reservations and equality in academic and employment opportunities. The Tribunal also accepts the applicant was harassed by BJP members to pay financial contributions from his [local] business to the BJP and that he refused to make any payments. The Tribunal accepts the applicant was not physically harmed at any time whilst in India.
Whilst the applicant did not discuss the attack on his house until the Tribunal raised the discrepancies in his evidence with him, and he had stated to the Tribunal he had experienced no other harm in India other than the verbal arguments and issues with his car, his explanation that BJP members attended his house on one occasion when he was in [City 1] for work and only his wife was home is consistent with his oral evidence during his Departmental interview and broadly consistent with his written claims. Whilst the Tribunal has some doubts about how many members of the BJP attended his home location and does not accept a mob of activists attended his property, the Tribunal is prepared to accept in the year following the August 2015 rally some BJP members attended his home on one occasion, verbally harassed his wife, and disrupted some of the personal belongings in his home.
The Tribunal does not accept the applicant raised illegal party donations with the local BJP leader or that a mob of activists ransacked his business. When the Tribunal put it to him that it may not accept, given the discrepancies between his written and oral evidence, that he raised illegal party donations, he repeated he refused and would not give any payment. His response did not indicate he raised the payment issue on behalf of local businesses in any way. The applicant was asked throughout the hearing on multiple occasions what harm he experienced in India. In discussing the tampering of his car and the verbal arguments he was involved in the Tribunal would expect if his business had also been threatened, tampered with, or ransacked, the applicant would have raised this at hearing. The applicant gave no details to the Tribunal about any incidents at his business, even after the Tribunal raised the discrepancy with him between his oral evidence and his written claims.
Future harm – BJP members
At hearing the Tribunal clarified with the applicant whether he experienced any issues from the BJP in India outside of the Patidar reservation movement and he stated no. The applicant confirmed he had not joined any political groups in Australia and his family had not been harmed in India whilst he has been in Australia. Whilst the applicant has not continued any political activities whilst in Australia, the Tribunal is prepared to accept given his community involvement in the Patidar reservation movement in India that he would express political views if he were to return to India in the reasonably foreseeable future and that he continues to hold political views that align with the NCP.
The Tribunal asked the applicant why he fears returning to India and what he thinks would happen to him if he returned there. He stated the situation when he came to Australia nine years ago has passed and he does not know what the situation is back in India if he goes back there. When asked, given the passage of time, why he thinks he may still be at risk of harm, he stated such a long time has passed and he doesn’t have any other context or know the situation over there. The Tribunal queried who it was he feared harm from, and he stated the BJP and political parties, although repeated the situation in which he came to Australia has passed so he doesn’t know the situation now.
The Tribunal asked the applicant whether he believed he would be the target of any harm in India given he has not pursued any political action whilst he has been in Australia or joined any political groups in over seven years. In response he stated he wouldn’t know that. When asked if there was anything else he wished to tell the Tribunal about the harm he fears he will face on return to India he stated he doesn’t know anything and the situation in which he came to Australia, whether those people are there or not or have gone to God’s place, he does not know. The Tribunal asked the applicant where he would return to if he had to return to India and he stated he did not know, and it was depending on God. The Tribunal put it to the applicant it may find he would return to Ahmedabad as that is where his son and father currently live and where he previously resided before he came to Australia. The applicant did not respond.
The Tribunal raised its concern with the applicant that based on his evidence it may not find he genuinely fears harm on return to India from the BJP or anyone else in the reasonably foreseeable future. In response to the applicant stated he cannot say anything about the place over there. The Tribunal considered the applicant’s response and finds it does not overcome its concerns.
Country information before the Tribunal indicates India is a mature and robust democracy in which politics is hotly contested[3] and political diversity and robust debate are part of the fabric of Indian society[4]. Citizens are able to criticise the government privately and publicly, express political opinions through protest, in online forums and join political groups[5]. DFAT assesses leaders and members of opposition parties do not face official or societal discrimination on a day-to-day basis. There is a risk of violence around elections and in street protests, however, overall, both elections and protests are mostly peaceful. DFAT assesses those with diverse or anti-government political opinions in general face a low risk of official discrimination or violence on the basis of their political opinions[6]. In Gujarati politics in particular, DFAT assesses that participants face a low risk of official or societal discrimination or violence[7]. Media reports indicate the recent 2024 elections in Gujarat resulted in the BJP winning all seats except one, which Congress won, which was an increase in Congress votes since the 2019 election[8]. There is no indication in media reports that the elections in Gujarat were characterised by violence or rioting between political parties.
[3] Department of Foreign Affairs and Trade, Country Information Report - India, 29 September 2023, 2.6, 9-10.
[4] Department of Foreign Affairs and Trade, Country Information Report - India, 29 September 2023, 3.76, 27.
[5] United Kingdom Home Office, Country Policy and Information Note India: Political parties and affiliation, Version 1.0, December 2023, 3.1.1 and 3.1.2, 6.
[6] Department of Foreign Affairs and Trade, Country Information Report - India, 29 September 2023, 3.87, 29.
[7] Department of Foreign Affairs and Trade, Country Information Report - India, 29 September 2023, 3.93, 30.
[8] ‘Gujarat election results 2024 highlights: BJP sweeps Gujarat once again, Congress wins 1 seat’, The Hindu, 4 June 2024; ‘Election results 2024: Congress opens account in Gujarat after a decade’, The Hindu, 5 June 2024.
The Tribunal discussed this country information with the applicant at hearing and explained it appears to indicate, and the Tribunal may find, the applicant could express his political views publicly and openly in the reasonably foreseeably future in India, including in Gujarat and Ahmedabad, whether he supports the BJP, NCP, or holds other political views or previously supported other parties, without facing a real chance of serious or significant harm. In response the applicant stated the BJP have been beaten in some states and it was Congress who won seats. The Tribunal finds the applicant’s response did not directly respond to or overcome its concern.
The Tribunal also raised with the applicant that in respect of the Patidar reservation movement, country information confirms a rally for the movement and in support of its leader Hardik Patel took place on 25 August 2015 in Ahmedabad but DFAT report their understanding is the Patidar reservation movement is not currently active[9]. The Tribunal raised with the applicant that Hardik Patel commented in May 2019 in the media that the quota stir for the Patidar community was now over and there is no point in continuing the agitation as the central government has provided ten per cent reservation for economically weaker sections in non-reserved category[10]. The Tribunal explained in June 2022 Hardik Patel himself joined the BJP and he was successfully elected on 10 November 2022 to the Gujarat Legislative Assembly[11]. In terms of the arrests and charges of people involved in the Patidar reservation movement, the Tribunal explained charges and cases had reportedly been withdrawn against people in the larger interest of society[12].
[9] Department of Foreign Affairs and Trade, Country Information Report - India, 29 September 2023, 3.92, 29-30.
[10] ‘With 10pc quota for EWS, Patidar reservation stir over: Hardik’, United News of India, 1 May 2019.
[11] ‘Hardik Patel – from Cong to BJP and now Guj MLA. On becoming minister, he says…’, Hindustan Times, 10 December 2022.
[12] ‘Gujarat govt withdraws one more case against agitators of Patidar quota stir’, The Times of India, 12 April 2022.
The Tribunal explained the country information before it may lead it to find the Patidar reservation movement is not active, Hardik Patel is now a member of the BJP, the BJP are not targeting anyone involved in the Patidar reservation movement, and that he may not be the target of anyone in India if he were to return there. The Tribunal explained this may lead it to find he would not face a real chance of serious or significant harm from anyone in India in the reasonably foreseeable future. In response the applicant confirmed Hardik Patel was the main person and he had crossed the party, betrayed them after the rally, and joined the BJP. He stated when he left India the cases against people were going on and at the moment, he can’t say what is going on there. The Tribunal considered the applicant’s response and found it did not allay its concern.
Findings
The Tribunal accepts the applicant attended a rally on 25 August 2015 in Ahmedabad in connection to the Patidar reservation movement and that he was a community supporter of the reservation movement across 2015-2017.
The Tribunal does not accept the applicant was an official member of the BJP or the NCP or that he held any formal role in either organisation.
The Tribunal does not accept the copies of the BJP or NCP membership cards the applicant provided to the Department are genuine documents.
The Tribunal accepts the applicant was involved in verbal arguments with BJP members, that these arguments included verbal threats against his life, and that at times his car was tampered with, including having the air removed from the tires, and the lights and windshield removed.
The Tribunal accepts the applicant reported the verbal threats to the local police and they did not respond to his reports.
The Tribunal accepts the applicant joined a rally with farmers agitating against the BJP as part of the Patidar reservation movement.
The Tribunal accepts the applicant worked at a [business] and that he was harassed by BJP members to pay financial contributions from his local [business] to the party and that he refused to make any payments. The Tribunal does not accept the applicant raised illegal party donations with the local BJP leader or anyone else.
The Tribunal accepts in the year following the August 2015 rally some BJP members attended his home on one occasion, verbally harassed his wife, and disrupted some of the personal belongings in his home. The Tribunal does not accept a mob of activists ransacked his business.
The Tribunal accepts the applicant was not physically harmed at any time whilst in India.
The Tribunal accepts the applicant continues to hold political beliefs that align with the NCP and that if the applicant returned to India, he would express his political views.
Do the applicants meet the refugee criterion?
The applicant claims in his written protection visa application he left India as he was terrified, worried about his family members, and that the BJP threatened to kill his family members. At hearing, the applicant stated the situation when he came to Australia has passed, and he does not know what the situation is in India now.
The Tribunal, for the reasons set out above, has accepted the applicant was involved in the Patidar reservation movement, that he attended a rally on 25 August 2015 and a further rally with farmers, and that BJP members threatened him verbally, tampered with his car, harassed him for party donations, and attended his home on one occasion and argued with his wife and disrupted his belongings. The Tribunal has accepted the applicant reported the verbal threats to the police and they did not respond to his reports. The Tribunal has not accepted he was an official member of the BJP or NCP, that he raised illegal party donations with the BJP local leader, or that a mob of activists ransacked his business. The Tribunal has accepted the applicant continues to hold political views and that he will express those views if he returns to India in the reasonably foreseeable future.

For the following reasons, and having regard to the findings above, the Tribunal is not satisfied there is a real chance that he will suffer serious harm upon return to India in the reasonably foreseeable future.
To meet the refugee criterion, a person must have a well-founded fear of persecution for one or more of the reasons mentioned in s 5J(1)(a), namely race, religion, nationality, membership of a particular social group or political opinion.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, whilst s 5J(1)(b) imposes an objective standard, that there must be a real chance of that fear being realised and the person being persecuted.
The applicant acknowledged at hearing the situation in India in which he came to Australia has passed and stated he does not know what the situation in India currently is. He was unable to articulate what harm he would face on return to India. When the Tribunal raised its concern with him that based on his evidence it may not find he genuinely fears harm on return to India from the BJP or anyone else in the reasonably foreseeable future he responded that he could not say anything about the place.
Whilst the applicant was in India he was not physically harmed on any occasion, despite having ongoing contact with BJP members in the community and despite BJP members knowing of his home address and having attended there on one occasion, threatening his wife and disturbing his home items. The BJP members did not attempt to contact the applicant at his home address on any other occasion or carry out any of their threats on his life when they verbally harassed him in the community or tampered with his car. It has been over seven years since the applicant departed India and since he was involved in any form of politics, including the Patidar reservation movement. During that time his family have been able to remain in Ahmedabad without issue.
Country information before the Tribunal, discussed above and raised with the applicant at hearing, indicates the Patidar reservation movement has ended, agitators of that movement have not had arrests or charges pursued in the larger interest of society, Hardik Patel has joined the BJP, and participants in politics in India, including in Gujarat, face a low risk of official or societal discrimination or violence.
Considering all the evidence before the Tribunal, the Tribunal finds there is no real chance the applicant will face serious harm from members of the BJP, anyone connected to them, or anyone else if he returns to India in the reasonably foreseeable future, including in circumstances where he continues to hold and express his political views in Ahmedabad, and that the applicant does not genuinely fear that he will be subject to serious harm from anyone if he returns to India in the reasonably foreseeable future.
The applicant did not claim, and there is nothing in the material to suggest, that he fears persecution for any other reason in India. When asked if there was any other reason or basis on which he feared harm on return to India he stated no.
For the reasons given above, and having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that if the applicants return to India now or in the reasonably foreseeable future that they face a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied that the applicants have a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicants have a well-founded fear of persecution, the applicants do not meet the definition of refugee in s 5H(1) and do not satisfy the criterion set out in s 36(2)(a).
Do the applicants meet the complementary protection criterion?
Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s 36(2)(aa).
The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicants will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to India.
For the reasons set out above, the Tribunal has found that there is not a real chance that the applicant will experience harm from BJP members, anyone connected to them, or anyone else if he returns to India, including if he returns to Ahmedabad and continues to express his political views. The ‘real risk’ test under the complimentary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion[13]. This applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J. It follows the Tribunal finds that the applicants do not face a real risk of significant harm for any reason.
[13] MIAC v SZQRB [2013] FCAFC 33.
On the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, there is a real risk that they will suffer significant harm. That is, the Tribunal is not satisfied that there is a real risk in being removed from Australia to India that they will be arbitrarily deprived of their lives or suffer the death penalty; or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
The Tribunal is therefore not satisfied the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Rachelle Johnston
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 4202

16 July 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction