1906822 (Refugee)

1906822 (Refugee) [2024] AATA 4181 (11 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1906822
COUNTRY OF REFERENCE:                   India
MEMBER:Phillippa Wearne
DATE:11 October 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 October 2024 at 10:11am
CATCHWORDS
REFUGEE – protection visa – India – business supervisor employed workers from nearby refugee camp – approached by police to provide information about former LTTE members, and by refugees about harassment, threats, assaults and drug trafficking by police – beaten and threatened by police – continuing approaches to business owner/wife’s uncle – no attempt to report police’s actions – no travel to third country after visa issued – delay in departing after new passport issued – knowing provision of inaccurate information about damage to/loss of previous passport – inconsistent claims and evidence, and no supporting documentation provided – travel to other countries and refusal of previous Australian visa application not declared – false information and fraudulent document provided in previous application – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65, 424A
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
BACKGROUND

The applicant is a [Age]-year-old national of India.[1] He arrived in Australia [in] April 2016 as the holder of a business visa (Subclass FA 600 visa) and lodged an application for a protection visa on 23 June 2016.
[1] Copies of pages of the applicant’s Indian passport issued in [2015] are held on the Department file.
On 1 March 2019 a delegate for the Minister of Home Affairs refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
CLAIMS AND EVIDENCE
Protection visa application
According to his protection application, the applicant was born and resided in [Tamil Nadu].
He states that he reads, writes and speaks English and Tamil. He gives his religion as Hindu. He completed 12 years of education and then a Bachelor [degree].
The applicant states that he married in 2001. His wife, 2 sons and a daughter reside in [Tamil Nadu] at the family home where the applicant resided from 2012 until he left for Australia. Two brothers and a sister also reside in India, another 2 in [Country 1] and 1 in [Country 2].
He indicates that he has not previously travelled to any other country in the previous 30 years and that a previous passport (number provided) was lost.
He indicates that he has never had an Australian visa refused.
The applicant made claims for protection which I have summarised as follows:
·After completing his study, the applicant had difficulty finding office employment. He opened and operated a [shop] from [Year]-2012.
·His wife's uncle, K, a building contractor operated a business partnership with 5 of his close friends. They employed the applicant as a construction supervisor, even though he didn't have building industry experience.
·He supervised the labourers’ work, found additional labourers when required, helped the accountant pay their salary, assisted engineers ordering materials and collected building materials. He worked directly under K’s instructions.
·The labourers worked manually, carrying stones and mud to the work site. They broke stones into smaller pieces. Most of the labourers were women. Men tended to leave before finishing or quit on the spot because it was hard work. The women stayed working because they needed work.
·There were many Sri Lankan Tamil refugees in refugee camps in Tamil Nadu. The partners wanted the applicant to employ them because they were hard working and paid less than Indian employees.
·These Sri Lankan workers had to return to their camps by 6pm. They feared deportation if they failed to return in time.
·The partners told the applicant to get permission from Q Branch Police to permit them to work after 6pm as they wanted the work to be completed on time.
·When the applicant attended Q Branch, he was interrogated about his connection with the refugees. The officers told the applicant that they wouldn’t permit the workers to work after 6pm because ex-president Rajiv Gandhi was murdered by a Liberation Tigers of Tamil Ealam (LTTE) cadre, a refugee in India at the time.
·The police said they were investigating former LTTE cadres living in the camps and told the applicant he could help locate such individuals by coaching information from the refugees. To avoid further questioning, the applicant agreed to help. When the applicant discussed this visit the partners, they told him that they did not want anything to do with a police investigation and that he should deal with the refugees personally.
·In August 2014, when the applicant was waiting for at the refugee camp to take some refugees to work, some Q Branch Police approached and asked him why he was there. He explained that he’d employed workers from the camp for the past 6 months. The police told him that the workers had to return by 6pm.
·That same night when the applicant dropped off the refugee workers, they told him about their problems at the camp. They said they were harassed and threatened with deportation by Q Branch police, who made them perform sexual acts and do drug trafficking. They were told if they refused to help, they would be sent to special camps or deported to Sri Lanka. The refugees asked the applicant to assist them by talking to politicians. The same police officers who had been at the camp in the morning, noticed the applicant talking to the refugees and asked what they had been discussing. The applicant said that they were planning the next day’s work. The officers started to beat the men and women workers before they ran away to avoid harm.
·The applicant was ordered to attend the police station where he was beaten and kicked for having talked to the refugee workers. He felt pain in his back and was unable to walk. He had excruciating pain in his back.
·One of the officers at the police station recognised the applicant from an earlier occasion and told the others that the applicant would be assisting the police to locate the LTTE cadres. They asked the applicant whether the refugees had told him anything about Q Branch’s involvement in drug trafficking. He denied this. They told him that he should not speak to the refugees again or he would be sent to prison for assisting the LTTE cadres in terrorist activities in India.
·The police let him go. He had to be admitted to surgery for his back injuries.
·The applicant was fearful of dealing with the refugees after this incident. For approximately 1 year, he never went near the camps. Lorry drivers picked up the refugees from camp.
·In October 2015, police officers from Q Branch arrived at the work site wanting to talk to the applicant. They took details of the employees working and asked about their salaries. The police went to the applicant’s home. There they told the applicant that refugees working for him were involved in drug trafficking with them and that the applicant should encourage all employees working under him to also traffic drugs. They offered to pay him for this. Q Branch police wanted the applicant to travel to meet their agents in Kerala, Mumbai, Delhi and Calcutta. They said that they would protect him. The applicant knew that it was wrong to be involved in drug trafficking, which is injurious to health. He had no way to escape from these officers. To escape, he said he knew ex-labourers who could assist. The applicant spoke to his wife and K. K told him that Q branch would blame the applicant for their mistakes if they got caught, and the applicant would spend the rest of his life behind bars. K wanted the applicant to leave India before becoming involved with the Q Branch police trafficking.
·K told the applicant that the police officers could kill him if they found out he knew about the officers sexually assaulting the refugees. K told the applicant to move out of home until the applicant arranged a visa to go to any country. The travel agent got him the visa to travel to [Country 3] but warned that I would not be able to obtain a permanent stay. He told the applicant to stay until he got the visa to UK, Canada or Australia, so he could live permanently away from India. The agent told the applicant that he would not be able to help his travel away from India if he travelled to [Country 3].
·While the applicant was hiding at friends' places, his wife called him stating that the Q Branch police officers asked about his whereabouts. She said he was in Andhra Pradesh. The police officers told her to tell him to report to Hyderabad police station.
·He got a visa for Australia and fled India before the Q Branch could locate him.
Before the Department interview, the applicant made the following additional claims[2]:
[2] Statement, Recent information for your consideration, 11 February 2019.
·After he arrived in Australia his wife told him that K, was facing problems from the Q Branch police because they learned through the applicant’s employees that the applicant was related to K. They asked K whether he knew about their drug trafficking proposal made to the applicant. Although he knew all about it, K told them he didn't know what they were talking about.
·Q Branch police continued to visit K and the partners questioning whether they knew anything about the employees’ [i.e. Sri Lankan refugees] involvement with them. The partners didn’t want anything to do with the police, so K's relationship with the partners broke down. K opened his own business.
·The Q Branch police continued to visit K and asked him about whether the Sri Lankan workers or the applicant had complained to K about them.
·In the ‘latter part of 2017’, Q Branch police arrested K and interrogated him about his possible involvement with the LTTE. They also told him most of the Sri Lankan employees had been involved in drug smuggling for the LTTE and the applicant had been assisting them with drug transportation using company vehicles. They blamed K for encouraging the applicant and the refugees to continue drug trafficking. K denied any involvement. The officers released K after warning him that he had to bring the applicant to the police if he returned from overseas.
·A few months later the police abducted K and held him in an unknown location for a few weeks. K’s wife was able to use her influence on politicians to get K released. K told the applicant’s wife that the police had asked him to assist with their storing of drugs at his business premises. He refused so that is why they had detained him. The police threatened him with imprisonment for his involvement with drugs and LTTE in the past if he did not assist them.
·The applicant's wife told him never to return to India to assist K because his life would be ruined.
·To avoid being imprisoned, K lent his old truck to the police. He found it abandoned in December 2018 with blood stains on it.
·In January 2019, K was arrested and questioned about the applicant by the [City] police. He told them the applicant was overseas. The police told K that the applicant had been using K’s vehicles for drug trafficking and molesting Sri Lankan refugee women. They ordered K to bring the applicant to Q Branch police on his return to India.
·K warned applicant that should he return, he will not be able to escape Q Branch. He will end up as a drug dealer or would spend the rest of his life behind bars.
Department interview
The applicant attended a protection visa interview on 14 February 2019. During the interview the applicant provided additional information, including the following.
·He had no difficulty in departing India through Chennai Airport.
·He’s in contact with his wife and children in India and speaks with them weekly.
·He found out about protection visas from the Tamil refugees when he was working in the construction industry in India.
·He wrote his own claims for protection. This is why he's applying for protection in Australia.
·The refugee camp was near Chennai Airport and was called the Sri Lankan Refugee Camp.
·He couldn't find another job because Q Branch police thought he knew everything illegal that they had been involved in and didn't let him out of their sight.
·His wife and children are currently safe because they're living with her parents.
·If he goes back to India, he will face the same problems and he will have to commit suicide.
The delegate referred to some of the applicant’s other evidence the decision, some of which is discussed below in ‘Analysis, reasons and findings’.
The applicant also submitted extracts from several articles:
·Widespread sexual harassment persists in India, MSU 28 March 2016.
·Two years on, has Sexual Harassment of Women at Workplace Act done any good to India. Anjana Radhakrishnana
·Building India cities, silent workforce of women goes unrecognised. Reuters, January 2015.
·Women exploitation in Indian modern society. International Journal of Scientific and Research Publications, 2 February 2013.
·Indian Q Branch police arrest 63 Lankan refugees, Colombo Gazette, 21 January 2016.
·Tamil refugees arrested in Tamil Nadu. The Guardian, 8 April 2015.
·Among The Walking Dead, Leo Seemanpillai in the Indian refugee camps. 28 January 2015.
·Tamils facing new atrocities among The Walking Dead. Leo Seemanpillai in the Indian refugee camps. 28 January 2015.
·Sri Lankan Tamil refugees treated worse than beasts in Tamil Nadu. Asian Tribune, 12 July 2012.
·Asian Human Rights Commission, Dealing with the tremendous problem of torture in India (2003)
·Special Refugees and India’s obsession with detention, Sreekumar Kodiyath, 12 March 2016, Countercurrents.org [3]
- Women labourers work at the construction site of a road in Kolkata, 8 January 2015. Reuters. Reuters/Rupak De Chowdhuri.
·The horror of Indian jails, India Today Bhavna Vij-Aurora, 24 June 2011.
·(Abstract) Status of female workers in the construction in India. A review. Babasaheb Bhimrao. Status of Female Workers in Construction Industry in India: A Review, Kalpana devi & U.V.Kiran, Department of Human Development and Family Studies, School for Home Sciences. Babasaheb Bhimrao Ambedker University, Lucknow.
The delegate’s decision
[3] “Special Refugees” And India’s Obsession With Detention By Sreekumar Kodiyath (countercurrents.org)
The delegate did not find the applicant’s claims to be credible and decided that:
· the applicant did not have a well-founded fear of persecution for those reasons set out in s 5J(1)(a) of the Act, and
· There were not substantial grounds for believing that as a necessary and foreseeable consequence of being removed to India, there was a real risk that the applicant will suffer significant harm.
The applicant provided a copy of the decision record with the application for review.
The review application
On 22 March 2019, the applicant applied to the Tribunal for a review of the delegate’s decision.
Pre-hearing submissions
On 10 September 2024 the applicant submitted a further statement[4] and supporting documentation. The statement is summarised below:
The applicant contacted his wife recently and she said that Q Branch has repeatedly questioned K about whether he personally knew the Sri Lankan refugees the applicant employed. K maintained that he never had any direct dealing with them as the applicant oversaw employing and paying them. K convinced them that the applicant was employing labourers from the refugee camps and had never consulted K before employing them. The police suspected that the applicant gave details to K about the police officers’ involvement in sexually molesting the refugees and using them for drug trafficking. K convinced the police that the applicant had personal dealings with the refugees. The police officers ordered K to get the applicant to India and hand him over to the police. However, K advised the applicant not to return to India as the police officers fear that he could expose their Illegal activities.
His wife told him that Q Branch officers visited home last month and took their son for interrogation. The son was asked repeatedly whether the applicant was living in India. When his son said he was living in Australia, they asked when he would be returning from there. They asked his son about whether he was aware that the applicant had been involved in drug trafficking along with the Sri Lankan Tamil refugees in the camp. His son replied that he was not aware of that. The officers warned his son, that if the applicant ever attempted to re-enter India, he would be taken away and sentenced for his involvement in prostitution in refugee camps and for drug trafficking along with the Tamil refugees. His wife and K arranged release of his son through the Tamil parliamentarians and his wife is planning to send their son to [another country].
The applicant stated that Indian police, including Q Branch, are corrupt and are involved in illegal activities such as rape and drug peddling. He attached an article, Punjabi Police Report says 234 cops involved in the drug trade.[5]
[4] Change of circumstances, statement undated.
[5] Punjab Police report says 234 cops involved in drug trade - Pakistan - DAWN.COM - – accessed 11 September 2024.
The applicant also submitted the following articles: CBI raids on passport offices: How do passport scams happen,[6] and 108 Agents arrested in incidents of visa and passport fraud in 6 months.[7]
The hearing
[6] Times of India, 30 June 2024.
[7] New Delhi Television Limited, 11 July 2024.
The applicant appeared before the Tribunal on 11 September 2024 to give evidence and present arguments. An interpreter in the Tamil (Indian) language assisted the Tribunal.
The applicant said that a Sri Lankan friend who is also a housemate assisted him with his written statements in his application for protection.
He confirmed that he had lived at the same address since arriving in Sydney in 2016. He said that he had worked at the same [company] here for 8 years.
His wife and children live with his mother-in-law. He sends his family money every month. His sons are aged [Ages] and his daughter is [Age]. His older son has just finished college.
Later in the hearing, I asked the applicant why he feared returning to India. He replied that he is fearful because he knew everything about Q Branch’s secrets. He clarified this to mean that he knew they were smuggling drugs and sexually abusing the women in the refugee camps. He said that Q Branch still think that they will be in trouble because of him. He said that even now Q Branch is harassing K. However, he added that he thought that K ‘has come out of that’ now. Now that the applicant’s son has finished his college studies, Q Branch are interrogating and troubling him, not K. If the applicant returned to India, Q Branch would put him in to the old case and there is more chance that they harass and torture him. There is corruption everywhere in India so people like the applicant are not protected.

The applicant confirmed that he had never been involved in smuggling, transporting or selling drugs, despite Q Branch police pressuring him to do so. Nor had he ever been involved in any of the sexual abuse by Q Branch of the Sri Lankan refugees. He also confirmed that he hadn’t had any contact with LTTE cadres or given Q Branch any information about them. The applicant also confirmed that he had never reported Q Branch regarding its ‘secret activities’ to any authorities. He added that he would not do this because corruption was entrenched within the authorities, and they would tell Q Branch.
I noted that the applicant had been in Australia for over 8 years. He’d never reported Q Branch to the authorities, including since coming to Australia. According to his evidence, Q Branch would know that he’d not reported them, and they would probably assume that he’d never do so given his fear of them. Accordingly, it was difficult for me to accept that Q Branch would think that the applicant would report Q Branch now if he returned to India. It seemed to me that they would have no remaining adverse interest in the applicant after all this time has passed and no reports made against them. The applicant replied that K was pursued for this problem in 2019 and now his son is being investigated; this shows that the problem is still going on. If there was a problem in Q Branch, they would blame the applicant. The applicant said that Q Branch is currently involved in high level distribution of drugs to colleges and so on.
The applicant added that if he returned to India there was a chance that Q Branch would get him involved again and harass him. They are in his local area, there is a chance they could find out about his past and they might force him to get involved with drug deals. He does not know why this trouble comes to him when there are millions of people in India.
Where relevant, the applicant’s other oral evidence at the hearings is referred to in the Tribunal’s analysis below.
Section 424A letter
The Tribunal sent a s 424A letter to the applicant after the hearing[8] raising for comment particular oral evidence given by the applicant in the interview which had not been referred to in the Department decision. This oral evidence related to the timing of a particular event. This issue of inconsistent timing is not pursued by the Tribunal (see para 41). However, other statements made in the applicant’s response[9] to the s 424A letter are referred to below (see para 41).
[8] 16 September 2024.
[9] 30 September 2024.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complementary protection.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Independent information
The following are extracts from the Department of Foreign Affairs and Trade County Information Report India 2023 (the ‘DFAT Report’) which provide some background information.[10]
[10] DFAT Report, 29 September 2023 – accessed 1 October 2024.
3.178 India hosts more than 90,000 Tamils from Sri Lanka, mostly in the state of Tamil Nadu, which has a strong Tamil identity. India does not recognise their refugee status or have a legal framework for refugee protection, but the national and state governments, along with UNHCR and aid groups, provide basic services such as food and basic housing, education and health care. Sri Lankan Tamils in Tamil Nadu can and do work after obtaining government permission but, according to the US Department of State’s 2021 Human Rights Report, the police sometimes summon them back to camps at short notice, especially during election periods or major events.
3.179 Sri Lankan Tamils in India can be broadly divided into two groups – those who live in camps serviced by the government (about 60,000 people, but DFAT does not have exact numbers), and those who are integrated into and live in the community (approximately 30,000, although DFAT cannot confirm exact numbers). Those in camps receive education, housing, health care and psychosocial support. Many are highly educated, including degree holders. Sources told DFAT that accommodation for Sri Lankan Tamils who are in the camps is generally good with sanitation, food, health care, education and other services provided…
3.188    Sources told DFAT that they are not aware of LTTE (Tamil armed separatists) being active in the camps. DFAT is aware of media reports about the issue but cannot confirm details. Authorities question people if they suspect that they are related to the LTTE and monitor financial transactions that, broadly, may be used to fund terrorism.
Unreliable identity documents and document fraud
5.40    In-country sources told DFAT identity documents in India are unreliable because ‘breeder documents’ (which include birth, marriage and death certificates used to support applications for identity, residence and travel documents) and other basic government identity documents can be obtained fraudulently. Easily-faked bank statements or utility bills can also be used to demonstrate residency. Verifying documents is time consuming and largely unreliable given the ease of fraudulently obtaining genuine documents of all types.
5.41    Document fraud is a common criminal activity. It is not difficult to obtain fraudulent documents. For example, a passport might be based on only one other form of identification. Organised networks of agents are known to provide complete packages of fake documents. For example, The Times of India reported in February 2019 the arrest of five persons in Hyderabad for fabricating documents and official stamps, and helping people obtain visas for Western countries. The accused allegedly took applicants’ original passports, charging approx. AUD 750-850 as a first instalment, and a further AUD7,500-8,500 if the visa was successful. The process allegedly involved tampering with original Indian passports, and forging documents such as bank statements and seals, income tax returns, identity proofs, letter heads and logos, as well as rubber stamps of government officials, immigration stamps used at Indian airports, and immigration service stamps of Australia, the UK, the US and the UAE. Sources told DFAT organised networks such as those arrested in Hyderabad in 2019 provided complete packages of fake documents and charged significant fees for the provision of fraudulent documents.
Exit procedures
5.24    The Bureau of Immigration undertakes immigration functions in India. Indian nationals travelling abroad require a valid Indian passport and travel authority for the destination country. An Indian national, on re-entry to India, requires a valid Indian passport or travel document issued by the Government of India.
…
5.28    India has a border alert mechanism, known as a Look-Out Circular (LOC), that allows certain agencies to flag citizens and non-citizens for border intervention on entry to or exit from the country. Authorities can request LOC listing in cases where a person is a suspect, accused or under investigation for serious criminal offences under the Indian Penal Code or other penal laws. LOC listing can prevent a person from exiting the country (via airports, ports or land border crossings), and allow for arrest in some cases (such as when a person is absconding). In other cases, immigration authorities may not prevent LOC subjects from travelling, but originating agencies will be informed about the person’s departure or arrival. Generally, LOCs are valid for one year from the date of issue. In some cases validity can be longer (such as LOCs issued at the request of courts or Interpol, those with a specified duration or those linked to impounding of passports). DFAT is not aware of details of who would be placed on the list and is not aware of a pattern of treatment of those people that are.
Analysis, reasons and findings
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
I have the following concerns about the applicant’s evidence regarding his claims for protection.
Inconsistent information about previous passport
The applicant’s current Indian passport was issued in [2015]. On the protection application, the applicant declared that a previous passport was ‘lost’. During the interview he claimed his previous passport had been water damaged in a flood[11] and became unusable. When the reason for replacing his passport was raised with him during the hearing, the applicant said that it had been water damaged. He said that if he told the Indian authorities that it was damaged it would have been more difficult to get a new passport, so he declared that it had been lost. He said that because this reason was given to the Indian authorities, the same information was given on the Australian protection application. In his statement[12] dated 30 September 2024, the applicant stated that he had not personally attended for the replacement Indian passport, or personally mentioned to the Indian authorities that it was lost. It was the agent who had assisted him apply for the new passport who told him to state that it had been lost. He stated that he never intended to mislead the Indian or Australian government. He claims he was ‘facing problems’ from the corrupt and unruly Q Branch and ‘urgently’ had to leave India, and this is why he applied for the new passport through an agent.
[11] The Tribunal does not pursue the issue of the year this happened, which was raised in a s 424A letter sent after the hearing. The Tribunal accepts that applicant’s response to that letter that it was water damaged in 2005.
[12] Response to the Tribunal’s s 424A letter.
I note that the applicant did not leave India until about 10 months after the new passport was issued. Accordingly, I don’t accept this recent claim that he urgently required the replacement passport. Further, in seeking to place responsibility on his agent for providing knowingly false information about what happened to the previous passport, the applicant indicates that he attributes no personal responsibility or accountability for the inaccurate information provided about his passport both on his application for it and on the protection application. I consider the applicant’s evidence on this issue demonstrates a positive disregard to providing correct information about identity documents to Indian and Australian government authorities to achieve an easier, faster or desirable travel or migration outcome.
August 2014 attack
The applicant claims in his written statement that in August 2014, he was caught by Q branch police officers talking to the construction firm workers at the refugee camp twice in one day. He was ordered to the police station where he was questioned about whether he had been discussing the police’s drug trade with his workers. He claims that he was severely beaten and attacked by Q Branch officers at the police station causing such severe pain in his back he was unable to walk, and as a result was admitted to surgery for treatment. However, when asked about this claimed event during the interview, he said that he said that he had an MRI[13] taken, physiotherapy treatment for his back injuries but did not undergo surgery. During the hearing I raised this inconsistent evidence about treatment received for his injuries with the applicant. The applicant told me that he had been ‘admitted into surgery’ but when told of the risks, he postponed surgery and opted for physiotherapy. Then he cancelled the surgery. I find that the applicant has given inconsistent evidence about medical treatment he purportedly received for injuries sustained during the attack by Q Branch police. I also think his evidence on this issue indicates that he has the capacity and willingness to return to an original claim and rephrase his evidence in an attempt to justify an inconsistency brought to his attention.
[13] The Tribunal does not pursue the issue of the whereabouts of the MRI identified by the delegate in the decision.
Regarding the same claimed the severe attack on him by Q Branch police officers, the applicant states he was so fearful of more harm from them he stayed away from the refugee camp for a year. Given the attack and his fear of Q Branch, I asked the applicant why he remained working with the construction firm until April 2016. According to the applicant’s evidence, Q Branch police officers knew where he worked and about his continuing connection to the refugee camp workers. The applicant told me that he had to stay working there because K was looking after him and wanted him to stay working there. He felt like he was still learning and had a passion for the work and could earn more money at this construction firm. He worked well and K trusted him, so he continued working there. I do not find his reasons for remaining in the same employment after the severe attack and the continuing adverse interest from Q Branch, to be convincing and I don’t accept that the applicant had to keep working with the same construction firm as he claims. Given my concerns about the applicant’s above evidence, including medical treatment for his back injuries, I don’t accept that the applicant was severely beaten and attacked by Q Branch officers at the police station in August 2014.
Q Branch searching for the applicant
As already observed, the applicant claimed in the protection application to have continued working for the construction firm until April 2016. He also claimed in October 2015, Q Branch police officers came around to his home to convince him to get involved with drug trafficking. He started to stay at friends’ places to keep safe. He claimed K had wanted him to leave India at this time. I asked why he hadn’t left at this time instead of waiting until April 2016. I also asked if Q Branch police officers had been looking for him after October 2015, as he claims, surely, they would have been able to locate him. The applicant said that although he was very scared, he could not leave as he had to look after his family. He said he only stayed on in India for a ‘few months’ and then he came to Australia. He also added inconsistently that it was only after he came to Australia that Q Branch police started searching for him.
During the interview that applicant said that he couldn't relocate in India because the police could locate him in any other state. I noted again if Q Branch police did have this power why hadn’t they located him before he left India when they were searching for him? The applicant said he would somehow be found if he moved interstate because the police had links in everywhere. Later, I referred to country information that indicates procedures are in place to prevent people of adverse interest to police from leaving the country. I noted that the applicant claimed to be pursued by Q Branch police, whom he also claimed knew his every move and whom he claimed were powerful with links, yet he was able to exit India without a problem. The applicant said that the police had not put a case on him. The problem was with [the] Q Branch, it was just local not national. He got a visa without the police knowing. The exit alerts would be for a First Information Report about a murder.
I find that the applicant has given inconsistent information about the extent of Q Branch’s adverse interest in him, whether they were searching for him and his views about their capacity to locate him. I don’t accept the claim that they would be able to locate the applicant in another state yet were not able to locate him in the area where he continued to work for the same firm before he left India. Given this and my concerns already expressed about the credibility of the applicant’s claims, I do not accept that Q Branch were looking for the applicant before he left India, as he claims.
[Country 3] visa
Copies of the applicant’s passport indicate that he was granted a multiple entry visa for travel to [Country 3] issued on 29 December 2015, which was valid for 12 months. The applicant claims to be increasingly fearful of Q Branch officers after October 2015, that he had moved out of home after this, and was staying at different friends’ places. In explaining why he didn’t go to [Country 3] when he had the opportunity to leave India, the applicant said during the interview, that his agent had advised him not to go because he couldn’t get permanent residency. During the hearing, I raised this issue with him and asked why he had not escaped the threats and harm and gone to [Country 3]. The applicant said he could not get a protection visa or any visa to stay in [Country 3]. He also added that it was possible that Q Branch could operate in [Country 3]. He said that he knew that there was drug dealing in [Country 3] as he’d seen it on the news.
I consider that if the applicant felt very scared and feared imminent serious harm from Q Branch police officers, and also if K was urging and helping him leave, as he claims he was, the applicant would have left India at the first opportunity he had. Instead, he delayed leaving until April 2016.

Given the above, I don’t accept that the applicant was very scared of Q Branch in his hometown, or that he moved out of home in October 2015 to avoid them. I don’t accept that he did not go to [Country 3] because he was concerned about the possibility of Q Branch operating being there. I also consider that the applicant’s evidence on this issue reflects on his credibility adversely in regard to his other claims for protection.
Q Branch incriminate themselves
As I indicated to the applicant, it strains credulity that after the applicant left India Q Branch police officers would ask K and the applicant’s son what they knew about Q Branch’s illegal drug activity and their sexual misconduct with the Sri Lankan refuges. For in doing so they would incriminate themselves. The applicant said that they did so because they were trying to get more information from K and then from his son. They were feeding them with information to get more information.
I don’t accept that Q Branch police would incriminate themselves to a successful local businessman and the applicant’s son by telling them about their illegal activities, in an attempt to illicit more information about the applicant.
Q branch involved in illegal activities
The applicant submitted an article in support of his claim that Indian police including Q Branch are corrupt and involved in illegal activities.[14] Given the country information available[15] I accept that there can a problem with corruption in India including with the police. For example, there are some reports that those who have contacted police may well have paid a bribe for the police to take action.[16] However, there is no mention of Q Branch police in the article that he submitted to support his claims about Q Branch. Also, as I told the applicant, I had looked at country information available to me and made searches of the internet and couldn’t find a reference or a mention that Q Branch was involved in, or linked to, or rumoured to be so, corruption and the illegal activities he claimed that they are so involved with. In response, the applicant said that they weren’t directly involved, they were distanced from the illegal activities. They got their commissions. They avoided trouble for themselves. The Indian government would not put this information on the Internet.
[14] See footnote 5, above.
[15] DFAT Report 2.11, 2.13.
[16] DFAT Report 5.4.
Reports of corruption and involvement in illegal activities are not limited in their source to the Indian government. In the absence of any supporting information to the contrary, from any source, I don’t accept the applicant’s claims that Q Branch police is corrupt and involved the illegal activities including drug trafficking and supply that the applicant claims it is.
Family has move for their safety
During the hearing, the applicant stated that his wife and children had moved from the family home to her mother's address for their safety at the time the applicant left for Australia in April 2016. I pointed out that this was inconsistent with information he’d provided in the protection application, which states his wife was still at the family home when he made the protection application on 23 June 2016. The applicant then said that his wife and children had continued to stay half the time at the family home and half the time at her mother’s home until she and the children completely moved in with her mother completely in 2017. The applicant’s evidence is that he is close to and protective of his family. Their wellbeing was one of the reasons that applicant claims he delayed leaving in India. I find that the applicant has provided inconsistent information about his family having to move to ensure their safety. I don’t accept that his family had to move for their safety when he left as the applicant claims. I also find that the applicant’s evidence on this issue reflects adversely generally on his other claims for protection.
K’s role and gaps in timeline of claimed events
Another concern I have regarding the applicant’s evidence is with the role of K. The applicant provided written claims before the interview stating that since the applicant left India, K opened and operated his own construction business. Q Branch started to become more interested in K and his relationship with the applicant. In the later part of 2017, K was interrogated and later abducted. The police asked K to assist them in their illegal drug distribution activities for reward. According to the applicant’s written statement K’s wife was able to get K released through her influence on politicians. I asked given this why could she similarly not use her influence to protect the applicant if he returned to India. The applicant responded that it was not ‘influence’. In India if you knew a member of council you can ask for their help, and they will talk to the police and get the person released. I asked if they could help the applicant too then if he returned to India. The applicant said this had happened after he came to Australia, and for drug dealing he would never get help. Anyway, now the politicians have changed. Sometimes it works and sometimes it doesn’t. It depends on who you know. I consider that the applicant’s evidence on this issue is inconsistent because according to the applicant, K was asked to assist in the drug dealing, yet he was assisted and released from abduction by the police.
I also asked the applicant why K had not also left if he received this claimed adverse interest from Q Branch. The applicant replied that K was scared and did try to leave. However, he had a lot of business assets in his name so he couldn’t go. Everything would be lost. The applicant then said that K was coming out of that adverse attention now. He said that after he came to Australia in 2016, they tortured K in 2018-2019. They gave him trouble and arrested him. However, as K has been successfully working in construction, he has money and influence, and he is being left alone by Q Branch. I noted that if K was protected from Q Branch now because of his wealth and influence, he would also be able to protect the applicant, so the applicant would have no problem now if he were to return to India. The applicant said that would not happen because K has [children] to look after. The applicant then said that it was because K had managed to convince Q Branch that had nothing to do with the applicant that is why he had come out of that problem. I find the applicant’s evidence regarding the growing interest in K over a year after he left for Australia, the subsequent lapse of interest and reinterest and the reasons for that to be unconvincing.
Specifically, regarding the timeline of claimed events, I noted to the applicant that there were some long gaps in claimed events. After he left in India in April 2016, there was no claimed activity until ‘the later part of 2017’. At that time, according to the applicant’s claims, Q Branch started focusing on his uncle, K. I noted that there were no claimed events in 2018. However, in January 2019, K is arrested and asked about the applicant. After the Department decision in March 2019 there are not claimed events for the rest of 2019, none in 2020, none in 2021, none in 2022, none in 2023 and then around September 2024, the applicant claims that Q Branch police questioned K again and then the applicant’s son is now questioned. I queried this lack of continuity in claimed interest by Q Branch police as well as lengthy gaps between claimed events. I indicated that I considered that the claimed timeline strained credulity. The applicant said maybe K got out attention from Q Branch by bribes. But he knows the problem for him is continuing because Q Branch then spoke to his son.
Given my concerns about the credibility of the applicant’s claims noted above and the lack of continuity of sustained interested by Q branch, apart from times that correspond to the Department interview or Tribunal hearing, I don’t accept that Q Branch has questioned K since the applicant left India or that his son was recently questioned by Q Branch police officers regarding the applicant.
Knowledge of protection visas
I noted that the applicant had variously claimed to have found out about protection visas from the Sri Lankan refugees, from the agent who organised the visa to come to Australia and from K. He had also claimed during the interview to have come to Australia with the purpose of applying for a protection visa. However, also during the interview, while seeking to explain the delay in applying for a visa, he had claimed that he hadn't known ‘anything’ when he arrived in Australia, and he slowly started to find out about protection visas by speaking to different people. I told the applicant that I considered his evidence about his knowledge of protection visas to be inconsistent. The applicant replied that K told him that he had to leave for overseas for safety. The dealings were between K and the agent. The agent did all the forms. The applicant only met the agent at the airport.
I do not find the applicant’s explanation satisfactorily explains the inconsistent evidence about his knowledge of protection visas. Specifically, I find the claim that he did not know anything about protection visas when he arrived here to be untruthful.
Credibility concerns raised by the delegate in Department decision
I also discussed concerns about credibility of the applicant’s claims that were raised in the delegate’s decision.
1.Refusal of previous Australian visa application not declared
The Department decision record notes that the applicant lodged a business visitor (FA-600) visa application on 17 March 2016, which was refused on 21 March 2016. A second application was made on 29 March 2016 which was granted. In the protection application, the applicant answered ‘no’ to the question asking whether he had ever had an Australian immigration visa refused or cancelled. When asked about this during the interview the applicant responded that his migration agent obtained the visa for him. During the hearing the applicant told me that K had arranged the visa for him and got everything done for him. The applicant gave the agent his passport for this purpose. I said that he would have presumably had to sign 2 different applications, so he would therefore know that he had made 2 visa applications. The applicant said he just put his signature on whatever forms he was presented to sign. I asked whether he had checked the purpose of the declarations. The applicant said in India if you get the visa that was enough for them. He trusted K and K trusted the agent, so the applicant just signed the forms.
I have already made some adverse credibility findings in respect of some of the applicant’s claims for protection. I consider that the applicant’s evidence on the issue of not declaring a refused Australian visa demonstrates that he is indifferent to providing a truthful response in an application if it achieves the migration outcome he seeks.
2.Declared purpose of travel to Australia inconsistent
During the interview, the applicant claimed that his purpose of travel to Australia was to apply for a protection visa. However, in support of his visitor visa application to enter Australia, the applicant provided a letter of support from his employer, an invitation letter from [Business organisation] and copies of his personal income tax returns from 2013 to 2015. This visa application and the documents used to support clearly indicated that the applicant came to Australia for a purpose other than seeking protection.
The applicant told the delegate that he just did what his agent had told him to do. He added that it is very common in India to be able to produce fraudulent documents and very easy to obtain non genuine documents. Given the country information available I accept that this is the case. His agent advised him to do certain things to process the visa and be able to leave India, so he did whatever his agent instructed. The delegate asked the applicant whether he was declaring that he had provided fraudulent or misleading documents to the Department in connection with applying for a visa. The applicant responded ‘no’. The asked why he would allow his agent to provide false or misleading documents to the Department. The applicant told the delegate that his agent’s objective was to make money out of the visa application and this way his agent could demand more money.
In his pre-hearing statement, the applicant stated the delegate refused to accept that the agent who obtained the visa for him to travel to Australia made all the documentation and evidence to get his visa. K who is his uncle, had direct contact with the agent and made all arrangements with the agent to obtain the visa. The agent must have obtained and submitted non-genuine tax documents to secure the visa for the applicant. The applicant said that he did not personally lodge any fraudulent documents to the Department. The applicant said that he was panicking about being taken away by Q Branch at the time the visa was applied for, and he relied on K to deal with the agent directly.
Given independent information available, I accept that fraudulent and fraudulently obtained documents are available in India.[17] However, I have already made some adverse credibility findings in respect of some of the applicant’s claims for protection. Specifically, I have not accepted that he was very scared of Q Branch in his hometown, that he moved out of home in October 2015 to avoid them or that Q Branch police were looking for him. Given this, I don’t accept that the applicant was panicking about being taken away by Q Branch at the time he was applying for the visa. Further, I find that the applicant’s evidence on the issue of his declared purpose in coming to Australia visa demonstrates that he is indifferent to providing a truthful response in an application or enabling someone else to do it on his behalf, as long as it achieves the migration outcome he seeks.
3.No supporting documentation of claimed employment
[17] See paragraph 35, above.
During the hearing the applicant confirmed claims on the protection application that he operated a [shop] from [Year]-2012 and from 2012-April 2016 he worked as a supervisor at the construction firm.
Construction firm
The delegate asked the applicant whether he had any evidence of his employment at the construction company in India where he claimed to have worked prior to his arrival in Australia. He replied that he did not have any documents. He said because K was a partner at the company and family he didn't get an ID card for the company. He was then asked to provide any pay slips that could support his claims of working at the construction company in India. The applicant replied that he was paid by deposit of his salary into his bank account and sometimes he was paid in cash. He provided no supporting evidence of his employment.
In his pre-hearing statement, regarding his employment at the construction firm, the applicant reiterated his claim of obtain employment through K. As he was under the direct control of K, he wasn’t provided with a company ID. Further, the applicant employed and supervised labourers, without much contact with the partners. The applicant said the system in India if different. You trust the relative who invited you to work. The applicant was looked after by his uncle. This is why he did not have payslips. It was like cash in hand to avoid income tax. This was the way it was in India.
[Product] shop
The applicant told me that his [shop] did not have an individual name or a business name. It was located within a group of other shops collectively referred to by the name of the street where the shops were located. He bought [supplies] locally to avoid import tax. He said that it’s different in India. Income was low so no tax is paid. There are no tax records. He did not have any records.
Apart from the applicant’s claims that he did so, there is no supporting evidence before me that he worked in the [shop] for 9 years or for the construction firm for 4 years. Even with the employment informalities he describes in India, which I accept do exist to some extent, I note that his tax records were provided to the Department in regard to his application for the business visa.
I have already made some adverse credibility findings in respect of the applicant’s claims for protection. Given this and the lack of any supporting documentation I don’t accept that the applicant operated the [shop] or worked at the construction firm as claimed.
4.Undeclared travel to another country
In the protection application, responding to the question about whether he had travelled to any country other than Australia in the last 30 years, the applicant responded ‘no’. However, information before the Department indicated that the applicant had previously travelled to [Country 4][18] and [Country 1]. When this undeclared travel was brought to the applicant's attention for comment, he stated that he had not travelled to any other country. He said that an impostor might have used his old passport to travel and that such incidents do happen in India. In the pre-hearing statement, the applicant repeated he had not travelled to another country. He postulated that corrupt Indian passport officers who issued his new passport after taking away his old, damaged passport may have used it in illicit activities. His old passport may have been given to an unknown person after removing the damaged pages and this unknown person has travelled abroad. This malpractice is well known in India. The applicant said he had provided an article about it.
[18] The claimed travel to [Country 4] is not pursued by the Tribunal.
Given independent information available[19], including the article submitted by the applicant[20] I accept that there at instances of passport fraud and scams. However, I have already made some adverse credibility findings in respect of the applicant’s core claims for protection. I consider that the applicant’s evidence on the issue of undeclared previous travel to [Country 1] indicates that he is indifferent to providing a truthful response in an application if it achieves the migration outcome he seeks.
5.Department confirms employment at [Product 1 Company] for previous 8 years
[19] See Country information, above.
[20] See paragraph 17, above.
The delegate informed the applicant that information he previously submitted to the Department indicated that he was employed at [Product 1 Company] and had been since 2008. This employment was checked and confirmed by a Departmental officer with [Product 1 Company] before the Visitor Business visa was granted in March 2016. In response to this confirmed employment, the applicant stated he had travelled to Australia to seek protection and insisted that he had given his agent details of his employment first at the [shop] and then at the construction company.
During the hearing the applicant repeated that the agent had organised everything. The applicant just wanted to leave. The applicant said that he did not know what mistakes were made and what false documents were used – anything wrong he did the applicant did not know about. With money the agent would do anything. That is why there may be some errors. The applicant said that what he claims is true, his own IQ as good as it was. Sometimes he forgets things.
I have already made some adverse credibility findings in respect of the applicant’s core claims for protection. I consider that the applicant’s evidence on previous claimed employment indicates that he is indifferent to providing a truthful response in an application, or having someone else provides it on his behalf, as long as it achieves the migration outcome he seeks. Further, on the same basis of adverse credibility findings already made in respect of the applicant’s claims, I don’t accept that inconsistencies in his evidence can be explained by his reduced IQ or that sometimes he forgets things.
Suicide

I noted that the applicant had claimed to the delegate that he would suicide if he returned to India. I asked the applicant if had depression. He said that when he first came to Australia, he had nightmares sometimes and couldn’t get back to sleep. The applicant did not expand on this or indicate that he was taking any medication for depression. In the absence of any information to the contrary, I do not accept that the applicant is depressed, is being treated for depression or has thoughts of suicide.
Issues not pursued by the Tribunal
1.K’s full name
In his written claims, the applicant consistently maintained that his wife's uncle K recommended him for employment at the construction firm, where he was a partner. He claimed a continuing family and employment relationship with K. However, the applicant was unable to provide K’s full name. Given the applicant had been married a lengthy time, had been provided employment by K, and had working for K for approximately 4 years, the delegate was concerned that the applicant didn’t know K’s full name. In response to the delegate’s concerns, the applicant said that it was not unusual not knowing K’s full name. There was no need to know it. The applicant compared it to not knowing the uncle’s house number, although he knew where the house was located. He said most of his family members don’t remember their relative’s family names. In Hindu culture, they know people by first names only. Although, I too initially found it unusual that the applicant did not know K’s full name given their strong connections, independent information available to me indicates that in Tamil Nadu and Sri Lanka the use of surnames is not common.[21] This is issue is therefore not pursued by the Tribunal.
2.Identity of the construction firm
[21] Hinduism, Culture and Religion, Religious fact sheets - Hinduism (nt.gov.au) – accessed 26 September 2024.
The applicant claimed during the interview that the name of the construction company in India was an acronym of the initials of the business owner. The delegate said that the name of the construction firm had not previously been provided, noting that the applicant had elsewhere described it as a partnership with several of K’s friends. The delegate was concerned about this inconsistency. During the hearing when I raised this issue the applicant said that it was like a partnership. They had invested their money into the business. But at the same time, they did not get involved. They had other businesses they operated. K has a private business as well as his company. It is different in India. There was a landowner and then there were construction owners. This issue of identity of the construction firm is not pursued by the Tribunal.
3.Safework NSW Work and Safety General Construction Induction
The delegate was concerned that the applicant had completed a ‘Safework NSW Work and Safety General Construction Induction’ prior to lodging his protection application. The applicant said that his Sri Lankan flatmates had advised him to do so. He provided the names of them after the interview. The delegate came to conclusion that the applicant completed the course for the sole purpose of bolstering his claims for protection as a person who had worked in the construction industry. The Tribunal does not pursue this issue otherwise than to accept the applicant’s evidence that he completed this course to bolster his employment opportunities in Australia.
4.Delay in applying for protection in Australia
During the interview, the delegate was concerned that the applicant waited 2 months after arriving in Australia before lodging his protection application. This issue is not pursued by the Tribunal.
Finding of facts
Given all the above including findings already made, I do not accept that:
·     The applicant worked for a construction firm as a supervisor in India where he recruited and employed Sri Lankan refuges.
·     The applicant was targeted by Q Branch or the police because of his conversations with and employment of Sri Lankan refugees.
·     Q branch had, has or will have any interest in the applicant for any reason he claims, including implied political views or his knowledge of their illegal activities.
·     The applicant was threatened or harmed by Q Branch officers or other police officers, including the threat that he would be sent to prison for assisting LTTE cadres in terrorist activities.
·     Q branch requested him to get information about LTTE cadres from the Sri Lankan refuges.
·     Q branch asked the applicant to assist them for reward in their illegal drug trafficking activities, including by recruiting the Sri Lankan workers to work in illegal drug trafficking
·     The applicant had a genuine fear of harm from Q Branch police or that he left India because he feared harm from Q branch officers.
·     There is corruption everywhere in India so people like the applicant are not protected.
·     That he did not report Q Branch because corruption was entrenched within the authorities and the authorities would tell Q Branch.
·     K was questioned or detained by Q Branch or the [City] police about the applicant after the applicant left India.
·     The applicant’s son was recently questioned by Q Branch regarding the applicant, including his whereabouts.
·     Q Branch has or had any interest in K or his son for the reasons the applicant claims.
·     Q Branch is involved in drug smuggling and trafficking. Specifically, that it is currently involved in high level distribution of drugs to colleges and other institutions.
·     If the applicant returned to India there is a chance that Q Branch would get him involved in their illegal activities and harass him.
·     Q Branch or the police will threaten or harm the applicant if he returns to India
·     That the applicant genuinely fears returning to India because he fears harm from Q Branch officers or other police.
Given the findings above, there is no need to further consider the articles that the applicant submitted to the Department and Tribunal.
Having rejected the applicant’s claims in regard to Q Branch’s or other police officers’ adverse interest in him at any time, I am not satisfied that there is a real chance the applicant will suffer serious harm from these people or anyone else for this or any other reason if he were to return to India now or in the reasonably foreseeable future. Given these findings and this conclusion it is unnecessary to address the issue of whether the harm faced by the applicant is for a specified reason set out in s 5J(1)(a).
For the above reasons I am not satisfied that the applicant meets the requirements for recognition as a refugee as defined by s 5H of the Act and I am not satisfied that he is person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). Having rejected the applicant’s claims regarding Q Branch’s or other police officers’ adverse interest in him at any time, I am not satisfied that he is at risk of adverse interest or attention from them for reasons he claims upon his return to India. I find there is no basis, on the evidence before me, to conclude that the applicant faces a real risk of arbitrarily deprivation of his life; or that the death penalty will be carried out on him; or that he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if he is returned to India. I am, therefore, not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India as the receiving country, there is a real risk that the applicant will suffer significant harm. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Family unit
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Phillippa Wearne
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 4181

11 October 2024

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

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