1906974 (Refugee)

1906974 (Refugee) [2024] AATA 3913 (26 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1906974
COUNTRY OF REFERENCE:                   India
MEMBER:Rachelle Johnston
DATE:26 August 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 26 August 2024 at 3:42pm
CATCHWORDS
REFUGEE – protection visa – India – religion and political opinion – Hindu cow vigilante – reported attacks on cows by Muslims – harassed and threatened to change or withdraw evidence by perpetrators and community leaders – political collusion and police inaction – inconsistent and implausible claims and evidence – scope and duties of work and other activities and role in investigation and trial of cow attackers – quality of translations of documents – working in Australia and sending money to family – country information – member of family unit wife – Australian-born child not an applicant – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 424A
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 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 26 July 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 26 July 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 [Village 1], [District], Gujarat.
·     He married on [Date].
·     Whilst in India he resided at the one address in [Village 1], Gujarat.
·     Between April 2011 and May 2014 he worked as a reporter for [Employer 1].
·     Between June 2005 and April 2008 he studied a Bachelor of [Subject] in Ahmedabad.
·     He speaks, reads, and writes Hindi and Gujarati. He is a Hindu.
The applicant makes the following claims in his protection visa application form:
·     He left India to escape the harassment of the Muslim goons who were hell bent on killing him. He was chased and badly tortured.
·     He tried to seek help, but the authorities were working at the behest of the people in power. The ruling party was not at all interested in solving the issue but wanting to keep the issue alive in order to garner the votes of the majority. The issue is politically very sensitive in India.
·     The culprits are so powerful they will seek him and kill him. He will be killed as the issue is politically sensitive in India.
·     Politicians in power try to gain political mileage from such incidents. There is no hope of safety until the issue subsides.
·     He cannot relocate, at least not until the impartial government comes into power which believes in social justice and gives justice to all regardless of political, religious, and social ideology.
In a statement attached to his protection visa application the applicant made the following claims:
·     He was residing in [Village 1] and working at [Employer 1] as a reporter in 2013. At that time some strangers in [Village 2] blinded a cow, which is worshipped as a Goddess in the Hindu community.
·     Belonging to the Hindu religion, he also worked to defend cows from such incidents and when he came to know about this sensational newsworthy report he went there.
·     Seeing the condition of the cows, he informed the police of the incident. The police arrived at the location of the incident and registered a case where he signed as a witness.
·     After further investigation the police caught the culprits who belonged to the Muslim community.
·     After the culprits were granted bail, they started searching for the person who registered the case with the police and who had signed as a witness.
·     They threatened him and said they will kill him. They came to his house and warned him that they will kill him and his family members and forced him to give a wrong statement in court. There was a lot of pressure on him to turn hostile in court, but he decided to support the truth.
·     Cows are a sensitive political issue. He tried to seek justice from the local police, but they received orders from the people in government not to act on the case and to keep the case live in the media so that they can elicit sympathies among the people for the cows.
·     His purpose was to fight for the animals which is worshipped by the largest community of India, which is his community, Hinduism.
·     He didn’t think the opposition party, Congress, whose politics is based on Muslim appeasement, would support him. But what came as a shock is that the BJP, the party which is a pro Hinduism party, decided not to support him and to rather keep the issue live among the people and in the media in order to get Hindu votes.
·     The opposition party and fanatic members of the Muslim community were harassing him and the people in power were silent for the vote bank politics.
·     Because of this family members asked him to leave India. The situation became worse, and he had to run away form his country and seek protection in Australia.
The applicant provided the following news articles with his protection visa application:
·     Kamaal Saiyed, Satish Jha, “Gujarat cow law: Hundreds of cases, but only one conviction since 2011”, India News, 3 April 2017.
·     “India’s police has a diversity problem: Too few Muslims”, Asia Times, 30 May 2018.
·     “We Have No Orders to Save You: State Participation and Complicity in Communal Violence in Gujarat”, Human Rights Watch, April 2002, Vol. 14, No. 3.
The applicant stated in his protection visa application that more information could be found in a copy of the First Information Report. The First Information Report provided by the applicant to the Department was not translated.
Interview with the delegate
The applicant attended an interview with a delegate of the Department on 18 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.
At his Departmental interview the applicant provided the Departmental delegate with untranslated documents, including four Indian newspaper articles, a document titled First Information Report, and a document titled Final Form Report.
The Departmental delegate provided the applicant with a period of seven days within which to provide the Department with English translations of those documents.
Post interview evidence
On 27 February 2019 the applicant provided the Department with the following translated documents:
·     Panchnama dated 1 December 2013.
·     First Information Report dated 22 November 2013.
·     Four newspaper articles.
On 7 March 2019 the Departmental delegate wrote to the applicant seeking clarification whether the Panchnama was the English translation of the untranslated Final Form Report. On 9 March 2019 the applicant responded to the Departmental delegate with a definition of what a Panchnama is but did not confirm if it was the same document as the Final Form Report he provided to the Department at his interview.
The delegate’s decision
On 12 March 2019, a delegate of the Minister refused the applicant’s protection visa application. The Departmental delegate concluded the Panchnama was the English translation of the Final Form Report the applicant had provided to the Department. The delegate accepted that the applicant is a cow protector, that he reported to the police as a witness in relation to the incident in [Village 2], that he has expressed a political opinion through his actions as a cow protector, that he is a member of the majority Hindu community, that the police in India have taken action in response to the applicant’s complaint, that the BJP influenced the police to investigate the matter, and that the court matter is outstanding. They did not accept that the applicant was in [Village 2] as a photojournalist or reporter for [Employer 1], that the details in the First Information Report and Final Form Report have been altered, that friends of the Muslim perpetrators threatened the applicant, that the applicant has been personally targeted by powerful Muslim goons or elders of the Muslim perpetrators, that the BJP bribed the police or ordered the police to cease investigating the matter, that the BJP threatened or bribed the applicant and witnesses in order to have the case dismissed, that the BJP agreed to have the case dismissed to acquire votes from the Muslim community, or that the applicant’s cousin has threatened him, which the applicant raised in his Departmental delegate interview.
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 25 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 15 July 2024 to give evidence and present arguments. The second named applicant did not appear at the hearing. The Tribunal confirmed with the applicant that 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.
At the hearing the Tribunal discussed with the applicant the translated documents he had provided to the Department. It was apparent to the Tribunal the applicant had not provided the Department in his email of 27 February 2019 with the full English translations of the original untranslated documents he had given the Department at his interview. The Departmental delegate referred in their decision record to the Panchnama, which they took to be the English translation of the Final Form Report that was provided by the applicant at interview, as well as the First Information Report. The Tribunal reviewed copies of translated documents the applicant had with him at the hearing, titled Panchnama and Final Form Report. The Tribunal took copies of these documents and for certainty, asked the applicant to send the Tribunal copies of all the English translations he had within seven days of the hearing. He confirmed he did not have a copy of the First Information Report with him at hearing, although he had it at home. The Tribunal had a copy of the First Information Report from the Department file before it at the hearing.
On 20 July 2024, the applicant emailed the Tribunal copies of the English translations of the Panchnama, First Information Report, the Final Form Report. These documents matched the Panchnama and Final Form Report the applicant had at hearing and the First Information Report he had provided to the Department and were the same documents the Tribunal had discussed with him at hearing.
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.
Section 424A correspondence
On 2 August 2024, after the hearing had concluded, the Tribunal wrote to the applicant in accordance with the terms of s 424A of the Act. The Tribunal included in that letter statements the applicant made in his Departmental interview on 18 February 2019, taken from an audio recording of the interview reviewed by the Tribunal, and invited comments or responses from the applicant on the information within a specified time period.
On 15 August 2024 the applicant responded to the Tribunal’s s 424A letter. The applicant’s responses to the Tribunal’s concerns are detailed in the Tribunal’s analysis below. In his response the applicant commented that if he was given more time, he had more evidence of what has been done by others and that people have been killed by Muslims.
On 15 August 2024 the Tribunal wrote to the applicant consenting to an extension of time to provide further comments or response by 22 August 2024.
On 21 August 2024 the applicant provided the Tribunal with newspaper articles and Google translations of those articles. The articles refer to cow protectors, cow vigilantism, Muslim attacks on cow guards, and Muslim attacks on Hindus. These articles are referred to in the Tribunal’s analysis below, where relevant.
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 that the applicants are using their own identity and that they are citizens of India. The applicant presented his Indian passport at his hearing, as well as the Indian passport of the second named applicant and the Indian passport of his child, born in Australia on [Date].
The Tribunal 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] and that they remain married and have since had a child together. 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
At hearing the applicant advanced largely the same claims as those set out in his protection visa application and that he discussed with the Departmental delegate in his interview. He confirmed the details of his protection visa application were true and correct, he was assisted with his application by a migration agent, and that he did not wish to make any changes to that document. The Tribunal discussed with the applicant what he claims occurred in India, why he fears returning there, and his work, travel, family, education, and residential history.
The applicant updated the Tribunal that he has since had a child in Australia, born in [Year]. He confirmed his biological mother, as well as the woman who he regards as his mother, who is his biological mother’s sister, remain in the family home in [Village 1], in addition to his father. He stated his adopted father has passed away. His sister lives in a different village in Gujarat, five kilometres away from his family, and has married.
The applicant provided the Tribunal with a straightforward account of his family background, his circumstances in Australia, and what he witnessed at the scene of the cow slaughter in [Village 2]. Beyond that, the Tribunal has substantial concerns with multiple aspects of his evidence. It finds his evidence about the harm he experienced in India as a police and court witness in relation to the cow slaughter in [Village 2] not to be consistent or credible. In reaching this view, the Tribunal has considered inconsistencies between the applicant’s oral and written evidence throughout the process, country information which is inconsistent with the applicant’s account of his experiences in India, aspects of the applicant’s evidence which the Tribunal finds to be implausible, and the shifting nature of the applicant’s oral evidence at hearing. The Tribunal’s full assessment is below.
Work as a journalist and the incident involving the cow slaughter

In his protection visa application, the applicant outlined he worked between April 2011 and May 2014 as a reported for [Employer 1]. He claims he was working as a reporter for [Employer 1] in 2013 when some cows were injured, leading him to go there to report on the news. In his Departmental interview he similarly claimed to have worked for [Employer 1] between 2010 to 2013, although stated he left [Employer 1] in April 2014 to work for [Employer 2], where he did office work in the [work Department]. At his Departmental interview he stated after the incident with the cows happened, he was working for [Employer 2] but as an employee so he could not not write in the news about it.
At hearing the applicant outlined a different work history in India, explaining during the last year he was in India before his arrival in Australia in July 2017 he started and managed a [business], whilst also working at [Employer 1]. The [business] was staffed by three to four boys, and he moved between it and his reporting work. The applicant stated he previously worked at [Employer 1], then worked at [Employer 2] in 2013 for approximately eight to twelve months, after which he returned to his work at [Employer 1] prior to his departure to Australia.
The Tribunal struggled to gain a clear picture of the exact type of work the applicant undertook in India and where he was working at particular points in time. Of significance to the applicant’s claims is that he was working as a journalist in November 2013, leading him to attend the scene of the cow slaughter in [Village 2]. The Tribunal explored with the applicant what his work at [Employer 1] involved. He explained he was a reporter and in his small city there weren’t different reporters so they would report on whatever news occurred. His job was to get the news and deliver it to the office. In discussing with the applicant the mechanics of this, he explained he would keep a book and note down points and go to the office and explain the story.
Included in the applicant’s supporting evidence are four newspaper articles, with English translations, describing the cow slaughter that took place in [Village 2] in November 2013. None of the newspaper articles contain the applicant’s name. Given this, the Tribunal asked the applicant what his role as a reporter involved, to which he explained his job was to bring the news to the main reporter for each district, and he was paid by the main reporter in the area to bring information to him. He stated the news was only reported in that person’s name and his role was to attend the incident, take photos, get information, and take it to the office.
Given the general consistency and level of detail in the applicant’s evidence concerning his work at [Employer 1], the Tribunal is prepared to accept the applicant worked at [Employer 1] at the time of the cow slaughter in November 2013. The Tribunal is also prepared to accept the applicant worked at [Employer 2] following his employment at [Employer 1], and that he returned to his work at [Employer 1], as well as working at the [business], before coming to Australia. Whilst the applicant did not mention his [business] work and return to [Employer 1] in his Departmental interview, given the piecemeal nature of the applicant’s work at both workplaces, where he was not directly employed by the main office of [Employer 1] and did work for the main reporter, and where he came and went from the [business] as needed, the Tribunal finds it is possible the applicant did not find it necessary to detail this later work in his protection visa application or at his Departmental interview, especially where it was not connected to the incident involving the slaughter of the cows.
As to the applicant’s role at [Employer 1] in November 2013 at the time of the cow slaughter, the Tribunal accepts his role was to obtain information and photographs of newsworthy incidents and bring it to the main reporter, as he explained at hearing. The Tribunal does not accept the applicant was a report writer for [Employer 1], that he directly wrote any news articles, or that his name ever appeared in any newspapers in relation to any news reports.
Central to the applicant’s claims is his presence at the scene of, and report to the police about, the slaughter of the cows in [Village 2] in November 2013. In discussing this incident with the Tribunal the applicant provided the following details:
·     The incident occurred at night, and he received a call the next morning to attend the scene. On arrival, he observed the villagers had tied up the injured cows in a single place. There were four cows, all missing eyes and tails, and they had cuts from sharp weapons on their legs and were bleeding.
·     He called the doctor for the cows and then the police. The police asked him who injured the cows and he explained he only came because he got a phone call, and he didn’t see anything.
·     He did not observe any individuals at the incident. He only observed the injuries to the cows.
·     He insisted the police lodge a First Information Report (FIR), not just take preliminary information. They told him he needed to sign as a witness and complainant, and he agreed.
·     After taking preliminary information and photographs he reported to [Employer 1] then attended the police station. Once he reached the police station there were members of the Hindu community present, including cow protectors. A few people signed the FIR as witnesses, including his cousin. He was dragged into the case as he called the police and signed the FIR.
Whilst the applicant had no memory of the date when the incident occurred, recounting at hearing that it happened at night and he attended the next day, the Final Form Report indicates the assailants were accused of committed the crime at night on the evening [in] November 2013 and were arrested on 30 November 2013. The newspaper articles are dated across late November 2013. The Tribunal accepts the incident occurred [in] November 2013.
The Tribunal struggled to understand the role the applicant played in providing witness evidence. The Tribunal discussed the applicant’s supporting documents with him, including the Panchnama, FIR, and Final Form Report. The Tribunal confirmed with the applicant there were three documents of relevance to the court case and that the Panchnama was a separate document to the Final Form report. In discussing the documents, the applicant explained the police first complete a Panchnama on site, then a FIR at the police station, which includes the main complainant making the complaint, then there is the Final Form Report which goes to the court and is based on the FIR.
The English translations of the applicant’s police documents are of a very poor quality, which added to the Tribunal’s difficulties deciphering the applicant’s role as a witness. The Tribunal discussed the poor quality of the translations with the applicant at hearing and queried why if the Panchnama is completed first, it is dated 1 December 2013, after the date of the incident, and why it refers to the accused individuals, who at the time of the incident, had not yet been identified. The applicant explained he was not sure if changes could be made to that document, but his understanding was the Panchnama was the first document prepared by the police.
The Tribunal also raised with the applicant that his name does not appear in the translated copy of the FIR before the Tribunal. He stated it does. After discussing the various documents with the applicant at hearing and reviewing the copy of the translated FIR the applicant had provided the Department, the Tribunal raised with the applicant that it could not see his name in the FIR. In response he stated the FIR has the name of the main person making the complaint and the Final Form Report is the document that goes to court. The Tribunal did not find his responses alleviated its concerns related to the absence of his name within the FIR. The Tribunal accepts the applicant’s name appears in the Panchnama and the Final Form Report.
Given the poor quality of the translations and to ensure the Tribunal had each of the full translated documents before it, the Tribunal provided the applicant with a further seven days following the hearing to provide it with the translated police and court documents. On 20 July 2024 the applicant provided the Tribunal with translated copies of the Panchnama, FIR, and Final Form Report. The translated FIR the applicant provided the Tribunal on 20 July 2024 matches the document he provided the Department and that the Tribunal had before it at hearing and does not contain his name, as put to the applicant at hearing.
Considering together the newspapers articles detailing the cow slaughter, the translated police and court documents, and the applicant’s evidence, the Tribunal is prepared to accept the applicant attended the scene of the cow slaughter on 20 November 2013 as part of his informant role at [Employer 1], that he gave evidence to the police, and that he was a witness in the court matter. The Tribunal accepts the applicant signed the Panchnama dated 1 December 2013 and that his name appears in the Final Form Report dated 22 January 2014 that was given to the court. For the reasons outlined above, the Tribunal does not accept the applicant was a complainant for the FIR.
Claims related to pressure to change his witness evidence
The applicant claimed at hearing that owing to his witness statement he was approached by his cousin, relatives of the assailants, and leaders of the Muslim community to change his evidence. He stated he was threatened to change his evidence or withdraw the case and that he was pressured for political reasons to shift his evidence.
In his protection visa application the applicant explained after the culprits were granted bail, they started searching for the person who registered the case with the police and who had signed as a witness. He claimed they threatened him and said they would kill him, and that they came to his house and warned him that they will kill him and his family members and forced him to give a wrong statement in court. He claimed the local police received orders from the government not to act on the case and keep it alive in the media, that Congress supported him, and the BJP decided not to support him and kept the issue alive in the media to get Hindu votes.
During his Departmental delegate interview the applicant outlined political leaders wanted him to change his statement. He explained an election was occurring in the fifth month of 2014, and in the area there were more Muslim people and the Minister and Minister’s wife could give the maximum votes of the Muslim people.
The Tribunal discussed with the applicant at hearing what happened after his gave his police evidence and during the court case. The applicant explained when he filed the court case nothing happened, and the problems started after he appeared in court and gave evidence. He explained he was contacted three to four times by relatives of the people accused of slaughtering the cows before he appeared in court where he was asked to change his mind and withdraw the case, given he was present during the time of the FIR. When asked what specifically they said to him when they came to see him, the applicant explained they asked him to say he didn’t know much, he saw something there, but the accused aren’t the people involved. He explained he was issued with a threat that whoever didn’t withdraw from the case won’t have a good result.
In discussing in more detail who it was that contacted the applicant he indicated it was his cousin that facilitated the contact between himself and relatives of the Muslim assailants. He stated his cousin is in politics and a BJP member, and although originally a witness in the case himself, his cousin withdrew from the case as he knew the party needed votes. The applicant stated it was his cousin who came with relatives of the Muslim assailants and members of the Muslim community who supported them to seek that he changes his evidence.
Struggling to understand the BJP’s connection to this matter, the Tribunal queried why the BJP would support relatives of the assailants involved in the slaughter of the cows. In response the applicant stated votes. When asked why the BJP would be reliant on votes from the Muslim community in Gujarat, the applicant stated whether the BJP or another political party, they would keep connections with various communities for votes and when this incident happened there was an election for the milk collection centre, for the Chairman’s Election. He explained two to three votes were given from every village and there would be four to five votes from the Muslim community, with only the President and Secretary from each village having the right to vote. He stated that ultimately the Muslim community would only give their vote on the condition the case was withdrawn.
Considering the applicant did not himself identify any individuals in the police or court documentation, the Tribunal raised with the applicant that he did not appear to be a material witness in the court case, and it could not see how his evidence would have been important to the court case or that it would have made any difference if he withdrew his evidence. He stated the police investigated the matter and some of the villagers knew who the people were, and they reported to the police and that’s how they came to do the final report, which he signed. He stated he was present and started the case with the police. He explained those people who signed the final report were then witnesses in the court. Whilst the Tribunal accepts the applicant initially contacted the police, and that the assailants came to be identified after a police investigation and through positive identification from some other villagers, his response did not alleviate the Tribunal’s concerns as the centrality of his specific evidence to the court case, notwithstanding he signed the Final Form Report that names the assailants.
The Tribunal discussed with the applicant it was struggling to understand why his evidence would be important given he had just observed the injured cows and put it to him that it would be the police and the other witnesses who identified the assailants whose evidence would be critical in the court case. The applicant explained when he appeared in court the judge asked him if he was present at the place and if he saw the injured cows, to which he said yes. He explained he also told the judge he called the police and the doctor. The applicant stated the judge asked if he was willing to sign as a witness that the police have accused the assailants and that they had done this before. When asked how he knew the assailants had done the same crime before he stated he was working at the time at [Employer 2] and their names had appeared in the FIR and in the news and everywhere and people had beaten them up at that time.
The Tribunal formed the view the totality of the applicant’s evidence in the case and to the court was that he saw the injured cows and initiated the police and medical response at the scene of the incident. The Tribunal accepts the applicant was willing to sign the Final Form Report which accused the assailants. The Tribunal did not find persuasive the applicant’s response that the judge would ask him to confirm the assailants had committed similar acts before, or his explanation that his observations of the assailants’ names in the news and of having been beaten up was indicative they had committed a similar crime before. The Tribunal does not accept the applicant was asked at court to confirm any details beyond his observations of the injured cows and his role in informing the police and the animal doctor.
The Tribunal had several difficulties with the applicant’s evidence related to the threats and political pressure he experienced in advance of the court case. Firstly, the applicant’s evidence at hearing about the political pressure he experienced was inconsistent with the evidence he gave to the Departmental delegate during his Departmental interview. At hearing when asked when the election for which he was pressured to change his evidence took place, he stated it was sometime around 2016. He explained his cousin told him the votes would only be given if he withdraws his evidence, otherwise the Chairman will lose. He stated he ultimately didn’t withdraw his evidence and the Chairman lost. In his Departmental interview, the applicant provided details of the May 2014 election for which he was pressured to change his evidence for votes and did not describe the 2016 Chairman Election at all.
The Tribunal raised the inconsistencies in the applicant’s evidence in its s 424A letter of 2 August 2024. It indicated his evidence at the hearing contained specific information about the 2016 election that the Tribunal would expect, had it been true, would have been put forward during his Departmental delegate interview, whereas in his Departmental interview he described last being contacted by political people in respect of an election occurring in the fifth month of 2014. It explained the inconsistency in his evidence between his Departmental interview and at hearing could suggest his evidence about the pressure put on him to change his witness statement is not credible.
In his written response of 15 August 2024, the applicant did not comment on the Tribunal’s concerns relating to the inconsistencies in his evidence about the elections and the political pressure placed on him. The Tribunal considered the applicant’s evidence throughout the process and is unable to reconcile the discrepancies in the applicant’s evidence, particularly why the applicant did not detail the 2016 political pressure he experienced to the Departmental delegate in his 18 February 2019 interview when it occurred closer in time to the events that transpired in India.
Secondly, the Tribunal finds it implausible the applicant would be asked to change his statement by members of the BJP, anyone connected to the BJP, his cousin, or the police, in an attempt to appeal to Muslim voters in Gujarat given the country information indicates the BJP promote Hindu nationalism[1], the importance of cows to Hindus[2], the anti-cow slaughter laws that exist in the State (and which were subsequently strengthened in 2017)[3], and where only 10% of the Gujarati population are Muslim[4], even in circumstances where select communities have restricted votes, as claimed by the applicant. When the Tribunal raised this country information and its concerns with the applicant at hearing, he stated it has happened and people have been abducted and taken to farms and have been tied up and reporters beaten up and there is no unity, and the community has lots of problems with none of the politicians providing support. The Tribunal considered the applicant’s response and found it confused, speculative, and that it did not alleviate its concerns in light of the independent country information.
[1] United Kingdom Home Office, Country Policy and Information Note India: Political parties and affiliation, Version 1.0, December 2023, 3.1.4, 7.
[2] Department of Foreign Affairs and Trade, Country Information Report - India, 29 September 2023, 3.26, 21
[3] ‘Gujarat amends law to bring in life sentence for cow slaughter’, The Indian Express, 1 April 2017.
[4] 2011 Indian Population Census, Gujarat, accessed at on 5 August 2024.
Thirdly, whilst the applicant claimed he needed to withdraw his specific evidence in order for the votes to be cast and a political outcome to be achieved, the Final Form Report dated 22 January 2014 includes the names of sixteen witnesses. During his Departmental interview the applicant stated there was a court date and all the people changed their statement, and he was the only one that did not change their statement. Conversely, at hearing the applicant gave evidence that it wasn’t just him who didn’t change his initial witness statement, and there were a few other people, including witness six, [Mr A], and witness number eight, [Mr B] from the Final Form Report who provided evidence in court like he did. He explained once he came to Australia they remained in India and continued the case and based on their evidence the assailants were convicted. In circumstances where other witnesses did not change their evidence, the Tribunal was left with the impression there was no utility in anyone pressuring him to withdraw or change his evidence in order to secure political votes as it would not lead to the court case ending.

The inconsistencies in the applicant’s evidence as to whether witnesses changed their evidence also caused the Tribunal to doubt the credibility of the applicant’s claim that he was contacted by his cousin, members of the Muslim community, and relatives of the assailants in relation to his witness statement. In its 2 August 2024 s 424A letter the Tribunal raised its concern with the applicant about inconsistencies in his evidence given in his Departmental interview and at hearing about witnesses changing their evidence at the court hearing or not. The Tribunal explained such inconsistencies could suggest his evidence about the witness statements, the pressure placed on him to change his evidence, and the harm he experienced in India in relation to his witness statement and the court case is not credible.
In his 15 August 2024 response to the Tribunal the applicant confirmed it was true there were three to four persons due to whom the accused had to suffer punishment, including [Mr A] and [Mr B] who continued with their statements after he came to Australia. The applicant’s response further caused the Tribunal to doubt why he would be pursued to change his evidence in the context of a specific political outcome or promise given other witnesses were continuing the court case and did not change their evidence.
Lastly, the Tribunal struggled to understand why the applicant’s witness evidence was significant to the case such that he would be pressured to withdraw or change his evidence. He did not see the assailants at the scene of the cow slaughter and his evidence provided no critical link between what he observed at the scene and the accusations cast against the assailants. The Tribunal raised with the applicant at hearing that it may find it implausible that he would be targeted as he has claimed, to the extent he would be approached to change his evidence or harmed, given the minimal details in his statement to the police about what he witnessed. It raised it may find he has embellished or exaggerated his evidence in these circumstances and that his claims are not credible. In response he stated everything he has stated happened and he faced it and people lose their life because they don’t have support and people take their revenge later on. The Tribunal considered the applicant’s response and did not find it persuasive in circumstances where the applicant did not observe the assailants at the scene of the incident and had only commented to the police that he saw the injured cows.
For the reasons outlined above and having considered the applicant’s oral and written evidence and his responses to its concerns, the Tribunal finds the applicant’s evidence about being pressured to change his witness evidence is not reliable and does not accept it. The Tribunal does not accept the applicant’s cousin, the assailants, relatives of the assailants, Members of the Muslim community, representatives from the BJP, the opposition party, the police, or anyone else ever approached or threatened the applicant at any time in relation to changing or withdrawing his witness evidence.
Past harm in India
The applicant has claimed he was harmed in India on account of his role as a police and court witness. In his protection visa application the applicant stated he was chased and badly tortured by Muslim goons, and that he was harassed by the opposition party and fanatic members of the Muslim community. In his Departmental interview he explained he was visited at his home by friends of the Muslim perpetrators and was threatened to change his witness statement.
At hearing the applicant explained although he was contacted and threatened prior to the court case about changing his evidence, it was not until after the 2016 court case, when he did not change his witness evidence or withdraw it, that he was harmed. He explained he came to Australia after he gave evidence, but the case continued in India and the assailants were proven guilty and jailed for one to one and a half years. In discussing the outcome of the court case, the applicant stated he got news of the outcome in 2017 whilst he was in Australia.
At hearing the applicant outlined two instances of harm that occurred in India. He explained once when he was going to his [business] he was beaten at a crossing near a village where two of the people who were accused in the court case live. On the other occasion when he was harmed, he was at a wedding at night and his cousin asked him to come out. When he went outside his cousin and another person from the village where the assailants came from offered him money to withdraw the case. He refused and was beaten up. He stated when his friend came over, they left. The applicant stated he hasn’t been in contact with his cousin since the incident at the wedding.
As to other instances of harm and continued contact with anyone in India, the applicant explained before he came to Australia, he was threatened on the phone by people who called from unknown numbers and his family have been visited three to four times since he arrived in Australia by people looking for him, but his family were not harassed. He stated it was about two years after arriving in Australia that someone last visited his family house. In terms of police involvement related to harm he experienced in India, the applicant explained he tried to make a police complaint, however they only took preliminary information and didn’t do anything. He stated that is when he decided to come to Australia.
The Tribunal asked the applicant why he was being offered money to change his evidence when he had already been to court and had given his statement. The applicant stated the assailants were punished so they wanted him to withdraw the case. When pushed to explain what it was that they expected would change, given he had already given his evidence at court, he stated it was all final, but they were saying if he withdraws the case they will reapply for a review of the decision and at that time he can withdraw. The Tribunal did not find the applicant’s explanation persuasive in circumstances where the assailants could seek a review of the case on their own accord, irrespective of the applicant’s evidence, and where the applicant’s evidence was not central to identifying who the assailants were at the scene of the slaughter of the cows.
The applicant stated at hearing that after giving evidence at the court case he stayed away from the village. He explained he tried to get a visa for [Country] but when that failed, he came to Australia. The Tribunal put it to the applicant it did not understand how he was staying away from the village when he had stated earlier at hearing that he was working at a [business] and had returned to his work at [Employer 1]. In response he stated he only visited the [business] occasionally and for his [Employer 1] role he was only delivering messages and photos by phone. The Tribunal did not find the applicant’s response persuasive in circumstances where he had told the Tribunal he delivered his news articles to the head reporter at [Employer 1] in person from a notepad and from incidents he himself had attended to photograph in person, and where he had explained he opened and managed a [business] in his hometown in the year prior to coming to Australia.
Given the Tribunal’s concerns, the Tribunal put it to the applicant if someone wanted to find him it would expect they would do so as he lived at the one address in a town he had described at hearing as being very small. In response he stated they came at night to threaten him, and they beat him up a couple of times to get him to change his decision in the court, but once he appeared in the court they didn’t do anything until they were convicted, then after the conviction and the court had taken the decision they started hassling him. He stated the last time when his cousin came to him he told him he would change his decision next time in court. He indicated the court would call him up not once but ten times for the same questions and there were lots of adjournments. The Tribunal found the applicant’s response confused and inconsistent with his earlier evidence at hearing that he was harmed once he had appeared in court in 2016 and had not changed his evidence and that the conviction did not occur until 2017 when he was in Australia. The Tribunal found the applicant shifted his evidence at hearing in response to concerns raised by the Tribunal.
The Tribunal asked the applicant why he would be a target of harm or revenge when he did not appear at the final court case when the assailants were convicted. In response he stated the court accepted the decision he gave on the previous occasion he attended and considered him out of the country and accepted his absence and finalised the case.
When the Tribunal put it to the applicant it may find it difficult to accept a court case was finalised, leading to the conviction of four assailants, in circumstances where he was out of the country and where the totality of his evidence was that he saw injured cows, he stated it happened. The Tribunal did not find his response persuasive. The Tribunal raised with the applicant it may find it difficult to accept anyone would want to seek revenge on him where the entirety of his evidence was he saw injured cows and he left the country before anyone was convicted. In response the applicant stated it wasn’t just him who didn’t change their witness statement and there were other people, including witness six, [Mr A], and witness eight, [Mr B], from the Final Form Report, who provided evidence just like him and once he came to Australia they were still there and continued the case and based on their evidence the assailants were convicted. He explained those people belong to the Patel community and that community is strong and large, so no one was able to harm them.
The Tribunal is prepared to accept [Mr A] and [Mr B] did not change their evidence, that they continued the court case in India after the applicant’s departure to Australia, and that the assailants were convicted in approximately 2017 for the slaughter of the cows and that they served one to one and a half years in prison.
When asked why he fears returning to India and what will happen to him, he stated he’s not sure what will happen if he goes back to India but he’s sure the Muslim community that he filed the case against will harm him again as he took the decision not to withdraw the case. The applicant stated he could not be protected from such harm because of corruption, and the Muslim community group and Hindus in the group are big businessmen with lots of money connected to the BJP and Congress.
The Tribunal put it to him the matter resolved many years ago and queried why it would continue to be an issue for him in the future. In response he stated he doesn’t know but they can take revenge on him. The applicant referred to an incident in 1998 of a person being killed twelve years after a court case was handed down, stating he doesn’t trust the assailants. When asked why the police would not assist him in relation to any further incidents, as they had done in finding, investigating and convicting the assailants, he stated because of politics and corruption those with money get protection and those without don’t. The Tribunal did not find the applicant’s response persuasive in circumstances where the police had been able to investigate, charge, and ultimately obtain a conviction in relation to the assailants.
When asked where he would return to if he had to return to India, he stated he didn’t want to go back to India. The Tribunal put it to him it may find he would return to [Village 1] as that is the place he previously lived whilst in India and where he has familiarity. In response he stated that’s the only place he has but if he goes back to his parent’s place, the people are there. The Tribunal accepts if the applicant were to return to India, he would return to his home village in [Village 1].
The Tribunal considered the applicant’s evidence throughout the process and has significant concerns about the genuineness of his evidence related to the harm he experienced in India. The Tribunal found the applicant’s account of the past harm he experienced in India inconsistent with the evidence he gave to the Departmental delegate and his written protection claims. It also found aspects of his evidence to be implausible and unreliable. The applicant’s failure to mention the two instances of harm discussed at hearing in either his written protection visa application or at his Departmental interview cast doubt on the credibility of his claims. The Tribunal’s full assessment is below.
The Tribunal found the applicant’s account of his past harm in India inconsistent across his oral and written evidence. The Tribunal raised its concern with the applicant at hearing that neither of his claimed incidents of harm in India, involving the Muslim assailants on the crossing and his cousin and the Muslim community member at the wedding, are referred to in his protection visa application or were discussed at his Departmental interview. The Tribunal explained it would send him a formal letter detailing its concerns as to the inconsistencies in his evidence in accordance with s 424A of the Act and invited him to comment at hearing about the inconsistencies and discrepancies in his evidence. The applicant indicated at hearing that he would respond in writing, following receipt of the Tribunal’s correspondence.
On 2 August 2024 the Tribunal wrote to the applicant setting out inconsistencies in his evidence as to his claimed harm in India. It explained in his Departmental interview he had described being threatened at his home and that he last had contact with his cousin in May 2014, whereas at hearing he detailed specific instances of harm occurring, including involving his cousin in 2016 at a wedding and separately on a street crossing, that were not explained to the Departmental delegate. The Tribunal explained it would expect, had the events described at hearing been true, for them to have been put forward by the applicant in his Departmental delegate interview. The Tribunal explained these inconsistencies could suggest to the Tribunal his evidence about the harm he experienced in India is not credible and that he does not face a real chance of serious or significant harm in India for any reason.
In his written response of 15 August 2024 the applicant reiterated that he was first offered money which he refused, so his cousin and a friend then took another way and when he was at a friend’s wedding, they called him out and beat him up whilst the other friends came and freed him. He stated the beating was quite true and his friends in India who were present with him at the wedding can prove it if they are contacted. He also stated when he was going about his business two Muslim boys came and beat him. The Tribunal considered the applicant’s response and did not find it addressed its concerns as to the inconsistencies in his evidence and why the two instances of harm raised at hearing were not mentioned in his Departmental delegate interview or in his protection visa application.
The Tribunal notes it is the responsibility of an applicant for a protection visa to specify all particulars of his or her claim to be owed protection and to provide sufficient evidence to establish the claim: s 5AAA(2) of the Act. The Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the applicant’s claim, or to establish or assist in establishing the claim: s 5AAA(4). The Tribunal finds the applicant had sufficient time to obtain and provide the Tribunal with witness evidence from his friends who were present at the wedding and could comment on the harm he experienced if he wished to do so, including after the Tribunal sent its s 424A letter. The applicant was also asked in his response to hearing invitation form if he wished for any witnesses to give evidence before the Tribunal and he indicated that he did not.
The applicant’s claims about why he would be a target of harm in relation to the cow slaughter incident do not accord with available country information before the Tribunal. The Tribunal discussed country information with the applicant at hearing that Hindus constitute 79.8% of the population in India, and Muslims 14.2%[5], and that Hindu nationalists enjoy a significant amount of political and social capital, with DFAT assessing that they experience a low risk of social or official discrimination[6]. It explained DFAT report that there have been high-profile attacks by Hindu nationalists against minority communities and some analysts have claimed that the national government has created a permissive environment for Hindu nationalist groups to intimidate members of minority religions through violence, hate speech, and otherwise[7]. The Tribunal explained its concern that it may find, as a Hindu, the applicant is in the religious majority in India, and he would not face ongoing adverse consequences from his report to the police, or a real chance of serious or significant harm from the Muslim community or assailants on return to India.
[5] 2022 Report on International Religious Freedom: India, US Department of State, 15 May 2023, 4.
[6] Department of Foreign Affairs and Trade, Country Information Report - India, 29 September 2023, 3.28, 21.
[7] Department of Foreign Affairs and Trade, Country Information Report - India, 29 September 2023, 3.28, 21.
In response the applicant stated there are many castes in India and he’s from [Caste 1] and [Caste 2] or any other caste wouldn’t support him. He stated no one ever interferes in each other’s caste and the BJP and other parties are only concerned about votes and don’t care about small issues. He referred to an incident in his own village where a [Caste 1] caste member, a carpenter, was killed, and the people convicted came out in one to one and a half years and are in the same village. The Tribunal considered the applicant’s response and found it speculative and disconnected from the Tribunal’s concerns as to whether he specifically would face any adverse consequences or a real chance of harm from anybody arising from his police report or the court case.
Given the applicant’s references to his caste the Tribunal reiterated its concern with the applicant that the country information indicates that overwhelmingly Hindus have significant political and social privilege, the BJP appeals to the Hindu majority, and it was struggling to understand why he would be a target of harm because of his caste, the police report, or from the Muslim minority in his home area. In response he stated the court case is the first reason, and there is no Hindu unity so no one would help him if someone broke into his house and was killing him. He stated the picture the BJP has painted since 2014 is not true. The Tribunal considered the applicant’s responses and found them speculative and that they did not alleviate the Tribunal’s concerns in light of the available country information.
The Tribunal raised with the applicant at hearing that DFAT report cow vigilante attacks receive a significant amount of media coverage. It explained DFAT report cow vigilantism generally involves groups of men who find and attack people, usually religious minorities, who allegedly interfere with cows, for example across State lines, and that victims are often beaten, sometimes to death[8]. The Tribunal explained the country information indicates the police are sometimes unwilling to investigate and pursue those responsible for committing acts of violence against religious minorities, and there are examples whereby victims have been prosecuted in religiously motivated crimes rather than the perpetrator[9].
[8] Department of Foreign Affairs and Trade, Country Information Report - India, 29 September 2023, 3.26, 21.
[9] United Kingdom Home Office, Country Policy and Information Note India: Political parties and affiliation, Version 1.0, December 2023, 14-15.

The Tribunal outlined to the applicant the country information appears to indicate that religious minorities are targeted in the case of cow slaughter and the police are often unwilling to investigate and pursue acts of violence perpetrated against religious minorities. It explained the country information does not appear to indicate political parties or the police would suggest he change his evidence or that the police would not pursue religious minorities involved in the acts. The Tribunal explained the country information may lead it to find he would not face a real chance of serious or significant harm on return to India in the reasonably foreseeable future for any reason. In response he stated he is not sure whether he’ll face any harm due to the case or not, but he believes he will. The applicant referred to instances where power and money have led to people being behind bars. The Tribunal considered the applicant’s response but did not find it persuasive in circumstances where he did not outline in any detail how the case he was involved in concerned power and money, why that would still be the case given the passage of time, and why he would be a specific target of harm owing to power or money.
The Tribunal also found it implausible the applicant would remain a target of harm on return to India given the minor role his evidence formed in the court case. The Tribunal put it to the applicant at hearing it may find it implausible anyone would want to seek revenge on him if he returned to India in circumstances where the court case concluded many years ago, he wasn’t present in India for the end of the court case, and he didn’t identify any of the assailants in his evidence, including where he is not from a big caste like the Patels. The Tribunal explained it may find he has fabricated or embellished aspects of his evidence and that his claims are not credible and invited him to comment. In response he stated nothing is fabricated, everything happened, and people lose their lives because they don’t have support as these people take revenge later on so it’s really hard. The Tribunal considered the applicant’s response and found it to be vague, speculative, and that it did not address the Tribunal’s concerns as to why anyone would seek revenge on him in the reasonably foreseeable future on return to India given his minor role in the court case.
In his 15 August 2024 response to the Tribunal’s s 424A letter, the applicant made additional comments about Muslim attacks. He stated that what he has done has been done by others and people have been killed by Muslims. The applicant’s comments were not provided in response to any particular concern raised by the Tribunal in its letter. The applicant stated they are sleeping in their own houses at night and are killed and there is evidence for this. The Tribunal considered these comments to be an extension of the concerns he raised at hearing about violence by Muslims against Hindus. The Tribunal considered the applicant’s comments in the context of his claimed harm on return to India and did not find them persuasive in light of the independent country information discussed with the applicant at hearing and raised above that indicates Hindu nationalists experience a low risk of social or official discrimination and where Hindus constitute 79.8% of the population[10].
[10] Department of Foreign Affairs and Trade, Country Information Report - India, 29 September 2023, 3.28, 21.
In his 15 August 2024 correspondence the applicant indicated if he had more time, he would bring more evidence about what was done by others. The Tribunal wrote to applicant on 15 August 2024 consenting to an extension of time to provide further comments or response to its concerns by 22 August 2024. On 21 August 2024 the applicant provided the Tribunal with a number of newspapers articles he had translated using Google translate. The articles discuss or report on cow vigilantism, cow protectors, Muslim attacks on cows, and Muslim attacks on Hindus, accompanied by pictures of the victims. The dates of those articles are not clearly stated given the applicant’s Google translations however one is stated to be from July 2019 and another from February 2015. The articles did not refer to the applicant directly. The Tribunal considered the information provided by the applicant, in addition to the other articles he provided in support of his protection visa application and did not find them persuasive in the context of the applicant’s claimed harm on return to India given his specific profile and circumstances and the independent country information outlined above and as discussed with the applicant at hearing which indicates there have been high profile attacks by Hindu nationalists against minority communities and Hindu nationalists experience significant amounts of social and political capital[11].
[11] Department of Foreign Affairs and Trade, Country Information Report - India, 29 September 2023, 3.28, 21.
The applicant’s evidence about why he left India to come to Australia causes the Tribunal to doubt he experienced past harm in India in relation to his police evidence and the court case. The Departmental delegate’s decision record, which the applicant provided to the Tribunal, indicates the applicant explained, when asked why he left his position in the news channel when they could assure him he will remain safe, that the position was stressful, and with his father’s cancer diagnosis he could not continue to work at the station, and he therefore decided to leave and travel to Australia. At hearing the Tribunal discussed this with the applicant, upon which he stated that cancer was about his oldest father, and the cancer he had discussed at hearing was his father and he needed money for his treatment and that’s why he came to Australia, and he sent the money to him. He then corrected himself at hearing and stated he didn’t come to Australia because he needed money, he came because of the problem he had, and he then came to know about the issue and his family needing money, so he is not in Australia for money. The applicant’s response raised significant concerns for the Tribunal as to his motivations in travelling to Australia and the credibility of his claims for protection.
In its 2 August 2024 s 424A letter the Tribunal set out the excerpts of the conversation the applicant had with the Departmental delegate at his interview about why he decided to leave India, as well as an outline of the evidence he had given at hearing discussing this aspect of his evidence. The Tribunal raised in its letter that the information before it may lead the Tribunal to find he travelled to Australia and made an application for a protection visa to have a valid visa to legally work in Australia and send money to his family. It explained it may cause the Tribunal to doubt the truthfulness of his evidence and consider that his claims lack credibility.
In his written response of 15 August 2024 the applicant stated that it was in 2018 after coming to Australia that they came to know from the doctors that his father had cancer. He stated he sent money to his father for medicine, but he did not come to Australia for money. He explained in 2019 and 2024 his answers have been that he came to Australia to visit and that after coming to Australia his parents found out that if he comes back to India there is danger for him, so he decided to stay in Australia where he felt safe and apply for a protection visa. He reiterated he came to Australia for sightseeing, not for money, but he knew he was in danger, so he stayed in Australia for his safety.
The Tribunal considered the applicant’s response and is prepared to accept the applicant came to Australia for the purpose of sightseeing and that his father was not diagnosed with cancer until 2018, at which point the applicant sent his father money for his medicine. The applicant’s response that he came to Australia to visit and sightsee and after coming to Australia found out from his parents there was danger if he returned to India furthered the Tribunal’s concerns about whether the applicant did face any harm in India before coming to Australia. The Tribunal considers if the applicant did experience harm in India, he would not have travelled to Australia for the purposes of sightseeing, and rather to seek protection. The Tribunal did not find the applicant’s comments that he was informed whilst he was in Australia that he was in danger persuasive in circumstances where he did not give evidence in the final court case that resulted in the conviction of the assailants.

100. Taking all these concerns together, whilst the Tribunal is prepared to accept the applicant gave evidence in India in 2016 in the court matter, for which he was a witness as outlined in the Final Form Report, the Tribunal does not accept that the applicant was harmed on any occasion in India in relation to his witness evidence or the court case, including by the assailants, relatives of the assailants, representatives of the Muslim community, politicians, or his cousin. The Tribunal does not accept he was pressured or threatened by political parties, fanatic members of the Muslim community, relatives of the assailants, or anyone else. Nor does the Tribunal accept the applicant was chased and badly tortured by Muslim goons. Given the above, it follows the Tribunal does not accept the applicant tried to seek assistance from the authorities or political parties at any time in relation to any threats or harm in India, that he received any threatening calls from unknown numbers on his phone, or that anyone has attended the applicant’s home asking after him since he departed from India.
Do the applicants meet the refugee criterion?
101. The applicant claims if he returns to India members of the Muslim community that he filed the case against will seek revenge and harm him. He also expressed general concerns about harm from the Muslim community in India. The Tribunal, for the reasons set out above, has accepted the applicant attended the scene of the cow slaughter on 20 November 2013 as part of his informant role at [Employer 1] and that he gave evidence to the police and was a witness in the court matter. The Tribunal has accepted the applicant signed the 1 December 2013 police Panchnama and that his name appears in the 22 January 2014 Final Form Report. The Tribunal has not accepted the applicant was a complainant in the FIR. The Tribunal has accepted the applicant appeared in court in India in 2016 to give evidence. The Tribunal has not accepted the applicant’s cousin, the assailants, relatives of the assailants, members of the Muslim community, representatives from the BJP, politicians, the police, or anyone else approached or threatened the applicant at any time in relation to his witness evidence, or that the police did not act on the case.
102. Nor has the Tribunal accepted the applicant was harmed on any occasion in India in relation to his witness evidence or the court case, including by the assailants, relatives of the assailants, or his cousin. The Tribunal has not accepted he was pressured or threatened by political parties, fanatic members of the Muslim community, relatives of the assailants, or anyone else. The Tribunal has not accepted he was chased and badly tortured by Muslim goons. Nor has the Tribunal accepted he tried to seek assistance from the authorities or political parties at any time in relation to any threats or harm he experienced in India, that he received threatening phone calls from anyone, or that anyone has attended the applicant’s home asking after him since he departed from India.
103. The Tribunal has accepted after the applicant had departed India that other witnesses, including [Mr A] and [Mr B] continued the court case and did not change their evidence and that the assailants were convicted in approximately 2017 for one to one and a half years of detention.
104. For the following reasons, and having regard to the findings above, the Tribunal is not satisfied there is a real chance that the applicants will suffer serious harm upon return to India in the reasonably foreseeable future.
105. 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.
106. 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.
107. In relation to the applicant’s claim that the Muslim assailants will enact revenge on him for his role in the court case, whilst the Tribunal has accepted the applicant gave evidence to the police and that he gave evidence in the court case in 2016 in India, it has not accepted he was the target of any harm in India in relation to the court case or his witness evidence. Whilst the applicant contacted the police about the injured cows and signed the Panchnama and Final Form Report, the applicant did not identify the assailants as being present at the scene of the cow slaughter in his evidence to the police or the court and nor did he report on the incident directly or identity the assailants in any newspaper articles. The assailants were convicted to one to one and a half years in prison over six years ago and after a final court hearing in which the applicant was not present, did not give evidence, and where he was already in Australia. The Tribunal finds the applicant was not of any interest to the assailants or anyone connected to them whilst he was in India and that he has not been of any interest to them since his arrival in Australia, including in relation to his role in facilitating the police presence at the site of the cow slaughter in [Village 2] and insistence that police documentation be completed.
108. Whilst the applicant stated he is not from a large caste like some of the other witnesses, so he would not be protected on return to India, the Tribunal finds he will not need protection on return to India, including if he returns to his home village in [Village 1], as he will not be a target of harm from anyone. The Tribunal finds in circumstances where it has not accepted the applicant was coerced into changing his evidence, or threatened or harmed in any way in relation to his witness evidence or the court case whilst he was in India, and the applicant was not present during the final court case that led to the conviction of the assailants, that he does not face a real chance of harm from the assailants, their family members, his cousin, political parties or anyone else on return to India in the reasonably foreseeable future, including where the assailants were convicted and have now served their prison term and the applicant returns to his home village in [Village 1].
109. At hearing and in his written evidence the applicant has claimed Hindus, including those not from a large caste, are at risk of general violence from Muslims. The applicant also provided the Tribunal with a number of articles referring to Muslim attacks against Hindus, including in the context of cow vigilantism. These articles were not specific to the applicant. Whilst the Tribunal accepts incidents of violence can and do occur in India, including between Hindus and Muslims, the Tribunal finds there is nothing in the applicant’s circumstances or profile that indicates he would be a target of harm specifically from the Muslim community or that places him at specific risk of being harmed as a Hindu.
110. The country information before the Tribunal, as discussed with the applicant at hearing, indicates Hindu nationalists enjoy a significant amount of political and social capital, they experience a low risk of social or official discrimination[12], and cow vigilantism generally involves attacks on religious minorities, with the police sometimes unwilling to pursue those responsible for committing acts of violence against religious minorities[13]. Considering the available country information, the applicant’s specific circumstances as a Hindu, and his evidence throughout the process relating to his employment history, caste, family background, and political involvement, the Tribunal finds there is no real chance he faces serious harm from the Muslim community on return to [Village 1] in the reasonably foreseeable future for any reason.
[12] Department of Foreign Affairs and Trade, Country Information Report - India, 29 September 2023, 3.28, 21.
[13] United Kingdom Home Office, Country Policy and Information Note India: Political parties and affiliation, Version 1.0, December 2023, 14-15.
111. 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 fears harm on return to India he indicated there was not. At hearing when asked if he was a member of any political or community groups in India, he stated he used to be a member of the Rashtriya Swayamsevak Sangh (RSS) and that his role extended to resolving issues raised in the community. He did not expand on what this involved. The applicant did not raise any claims related to his RSS involvement at hearing or indicate he feared harm on return to India as a result of his RSS membership or his broader political views, including his views relating to cow protection. The Tribunal finds the applicant does not face a real chance of harm on return to India owing to his RSS involvement or in connection to the expression of his political views, or that he genuinely fears harm on return to India as a result of his involvement in the RSS.
112. 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?
113. 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).
114. 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.
115. For the reasons set out above, the Tribunal has found that there is not a real chance that the applicants will experience harm from the Muslim assailants, their family members, the applicant’s cousin, political parties, Muslims in general, or anyone else on return to India in the reasonably foreseeable future. The Tribunal has also found the applicants do not face a real chance of harm on return to India owing to the applicant’s RSS involvement or connections, or the expression of 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[14]. 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.

[14] MIAC v SZQRB [2013] FCAFC 33.
116. 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.
117. The Tribunal is therefore not satisfied the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
Conclusion
118. 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).
119. 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).
120. 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
121. 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 3913

26 August 2024

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