1911465 (Refugee)

1911465 (Refugee) [2022] AATA 1344 (22 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1911465
COUNTRY OF REFERENCE:                   India
MEMBER:Phoebe Dunn
DATE:22 March 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 March 2022 at 9:06am
CATCHWORDS
REFUGEE – protection visa – India – inter-caste or inter-faith relationship – credibility concerns – vague and inconsistent evidence – late claims not raised earlier – delay in leaving country – delay in applying for protection – failure to respond to the Department’s request for information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 56, 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 May 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of India, applied for the visa on 18 July 2018. The delegate refused to grant the visa on 1 May 2019.
The applicant appeared before the Tribunal in person on 22 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
The applicant was represented in relation to the review. The applicant’s representative attended the hearing by phone and video.
Identity
The applicant provided a copy of his current passport to the Department, issued [in] 2016 valid [to] 2026.
Based on this information and without any information to the contrary the Tribunal accepts that the applicant is who he claims to be, that he is a national of India, which is also the receiving country.
Background
The applicant obtained [a temporary visa] on 2 October 2017 and arrived in Australia [in] October 2017.
The applicant applied for protection on 18 July 2018.
The applicant provided the following background in his protection visa application. He grew up in [Village 1] – Karnal, Haryana and lived there prior to coming to Australia. He is Hindu. He was a student form [year] and completed high school in [year]. He worked as a [Occupation 1] from 2011 to October 2017. He contacts his brother twice a week in India.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J of the Act in India and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims
The applicant made the following claims in his protection visa application:
a.The applicant claims he was thrashed and threatened by two men on a motorbike warning him to stay away from his girlfriend – a girl from their community who is from a different caste to the applicant.
b.The applicant belongs to the Haryanvi Rod Maratha caste.
c.They told him they have very high connections and can harm him seriously. He did not seek help from the authorities as he was too scared.
d.He can’t move to another part of the country as his girlfriend does not want to do so.
e.He fears he will be seriously beaten or jailed on false charges if he returns as the men have connections with politicians and other authorities.
f.It is well known that the police authorities in India are corrupt and favour political people who benefit them financially.
g.He can’t relocate within India because his community is very much against inter-caste marriage and there are several known cases in his country where honour killings have taken place.
At the hearing, the Tribunal asked the applicant whether he had completed the application himself and he stated that a migration agent had assisted him. The Tribunal asked the applicant to confirm that the claims in his protection visa application were true and correct and he did so.
During the hearing, the Tribunal discussed with the applicant his background, family, education and employment history, where he lived, his reasons for leaving India and why he fears returning to India.
He stated that he completed Year 10 in [year] then left school and attended a [college] studying [Discipline 1] from [year] to 2012. After finishing school, he worked as a [Occupation 1]. His father died the same year and he needed to make money to support the family, so he thought he would leave India to earn money. He stated that it was at this time that the ‘issues’ started.
The Tribunal noted that the applicant had arrived in Australia on [a specified temporary] visa and sought further information about why he came to Australia. In response he stated that he didn’t have any knowledge about the type of visa he arrived on, but that he had gone to a migration agent to help him come to Australia so he could make money. He stated that a friend of his brother’s, [Mr A], introduced him to someone to help him find a way to come to Australia and helped him apply for the visa. When he first came to Australia a Punjabi man met him at the airport. His brother’s friend knew him. He helped him and he stayed with him. He didn’t charge him any money. Later, a friend from his village made some enquiries and he went to live with the family of a friend. He then moved in with a distant relative who introduced him to some other people who he is now living with.
The Tribunal invited the applicant to provide further details in support of his claims. He stated that in around 2103 or 2014 he met a girl while he was studying. He liked her and wanted to marry her, but they were from different castes and his parents did not agree. He stated that then there were fights and conflict and one day they came to hit him.
The Tribunal asked the applicant for further detail about his claims. He said they didn’t get married and once the fight started, they stopped meeting each other. He stated he was quite scared after that. The Tribunal again sought further detail from the applicant about the circumstances giving rise to his claims, including the fight. He stated that they happened quite often. He stated that a group of people would stop him. He stated that one day there were three boys on a bike and he went to hospital. He stated that he had an allergy and a lot of swelling and they ended up doing an operation.
The Tribunal sought further detail about the incident, his injuries and the hospital stay. He stated that it was [Hospital 1], and he was there for around 12 to 13 days. He didn’t have any proof that he went to hospital. He stated that he had severe swelling and needed glucose and a doctor did something to stop the pain. He stated that he had an allergic reaction to dust from [his work] and they gave him treatment for the allergy and the ‘medicine got stuck’. He stated that he had swelling from being hit by a rod. When asked to clarify what he meant about the medicine getting stuck and why he needed an operation he stated that they did the operation for his allergy and also for pain so he could get better. The operation was near his lower back and also on his chest. When asked why they had to operate he stated that it was because when they hit him, he got some marks and to heal those marks they had to operate. He stated that they also had to operate because the medicine was stuck. He was not sure what happened, but the medicine was stuck and his fingernail was also broken.
The Tribunal repeatedly sought clarification about the nature of his injuries, why he went to hospital, his treatment at hospital, the reason for the operation and his allergies. The applicant’s evidence was vague and confused. He stated that he went to hospital because he had been hit, to get treatment and bandages for the swelling. His allergies had blown up and that’s why he went to hospital for 12 to 13 days. He is not sure why he was in hospital for so long but his body had so much swelling it took time to heal and he was given glucose. The Tribunal asked if there was anyone who visited him in hospital who could verify his claims and he said there was not.
The Tribunal sought further information about his allergies and treatment for his allergies. He stated it was an allergy from dust and dirt and he would get a rash on his body. He was treated with tablets and sometimes injections and medicine on the rash. He stated that it was the injection that got stuck in his body and needed an operation to have it removed. It was in his lower back and he still has a mark and feels pain from it when it is cold. The Tribunal again sought to clarify what the pain was caused by, asking whether it was from the fight or from his allergies. In response he stated he already had his allergies and because of the fight he had wounds and swelling and when they hit him ‘it got suppressed’. When asked again to clarify he stated that they had to operate on the bruises because it ‘got suppressed’ and there was no other option. The Tribunal asked whether he meant that they needed to drain blood from his bruises. He said they needed to get the blood out and the medicine out. They did a hole somewhere and drained it out of a hole. He was given an anaesthetic.
The Tribunal again sought further details and clarification on the applicant’s claims regarding the circumstances surrounding the fight. He said that the brother of the girl that he was in love with was in a group waiting to trap him. He stated that he was inside a shop when three people on a bike appeared. He tried to run away but they trapped him. The applicant confirmed that this was the only time he was physically assaulted. He stated that the rest of the time they just threatened him. He stated that his family told him it was in his best interests to leave. When asked who told him to leave, he stated it was his brother-in-law and his brother. They said he should relocate to a different city or hide. He stated that the police couldn’t help him as they won’t act on the spot.
When asked when this started to occur, he said in 2013/2014, after his exams. When asked if he could be more specific, he stated October/November 2013/2014. The Tribunal noted that the applicant had not applied for a visa to come to Australia until October 2017, some three or four years later, depending on whether the claimed events happened in 2013 or 2014. In response, the applicant stated that he was hiding in the village for a few months. His neighbours knew and were supporting him and his family. His family said he needed to forget the girl and move on, but he was too scared. After the incident his brother said to leave the city and go to a different place. Even after five or six months he was still scared.
The Tribunal noted that the applicant had not left India until three to four years later, in October 2017. The Tribunal asked the applicant why he had delayed leaving India for so long if he held the fears he claimed. The Tribunal noted that this suggested that the applicant’s claims to fear harm were not genuine. In response, the applicant stated that he did not have a passport and that it took a significant amount of time to get everything together to get a passport and then a visa.
The Tribunal sought further information about the girl, such as how he met her and the last time he had seen her. He said the last time he had seen her was a few days after his exam. He stated that he was seeing her for tuition for about four to five months. He stated that she was a student too. He stated that they didn’t want them to marry because they were from a different caste and religion. He stated that he is Muslim and she is Hindu, he is Rod caste and she is from a different caste.
The Tribunal noted that the applicant had not raised their different religions as a claim in his protection visa application and asked him why he had not done so. The applicant stated he wanted to give less information and that he wanted the visa to make his stay in Australia longer.
The Tribunal raised with the applicant the operation of s 423A of the Act, noting that the Tribunal was required to draw an adverse inference in relation to the credibility of an applicant’s claims raised before the Tribunal that were not before the original decision maker unless there was a reasonable explanation as to why he had not done so. In response the applicant stated that he did not know very much about the visa and did not know what he should mention. He stated that all he knew was that he needed to say she was from a different caste and that would be enough.
The Tribunal noted that the applicant obtained a passport in July 2016 and a visa to travel to Australia in October 2017 but that on the applicant’s evidence he had not seen the girl since 2013 or 2014 and questioned whether his claims were still current when he left India. In response he stated that he was still scared. The Tribunal asked whether he had been physically or verbally threatened after the incident that led to his hospitalisation. He stated that he knew they were roaming around looking for him but when they couldn’t find him, they went away.
The Tribunal noted that one of the requirements for the grant of a protection visa is that an applicant has a well-founded fear of persecution. The Tribunal noted that on the applicant’s evidence he had not been harmed since the incident that he claims resulted in him going to hospital. The Tribunal noted the passage of time between the claimed incidents and that this may indicate there is not a real chance he would face harm if he were to return. The Tribunal asked the applicant why he thought he would still be in danger if he returned to India. In response, he stated he is still scared, and the feeling doesn’t disappear that easily. He stated that if he goes back, he might end up being killed. He repeated his claim that he was threatened by brothers of the girl in 2013/2014 and that he stayed at home and that the neighbours knew of his issues.
The Tribunal asked the applicant if he could seek protection from police against any threats from his former girlfriend’s brothers. In response he stated that the police in India are not competent or helpful and he doesn’t think they would help him. The Tribunal asked the applicant if he could relocate to another part of India to avoid the harm he fears. The Tribunal asked if he thought it was reasonable for him to relocate. In response he stated that he doesn’t have much knowledge about other parts of India and that he hasn’t left his village or his state before. The Tribunal noted he had come to a foreign country with a different language and queried why it would be difficult for him to move somewhere else in India such as New Delhi where the culture and language were familiar to him. In response, he stated that living elsewhere would be difficult for him because he was too scared. He had never really left the village except to study and to come to Australia. It was not reasonable for him to relocate elsewhere in India because he has no knowledge of other places. In Australia he had good friends who could guide him.
The Tribunal noted that the fear of persecution must relate to all areas in India and asked why he thought they would find him anywhere else in India or why they would know where he was if he returned to India. In response he stated that they have sources in politics, and they would find out where he was. He stated that his parents will want him to get married if he returns and everyone will give them the information that he was in India. The Tribunal asked again why they would still be interested in him, some nine years later. In response he stated that they still have grudges in their heart because he dated a girl from their caste.
The Tribunal noted that in his protection visa application one of his claims was that he would be falsely accused of crimes he did not commit and would be charged and sent to jail and asked for further details about this claim. In response, he stated that the brothers of the girl have sources in politicians and police, and they can have him put in jail for no reason and can make false allegations against him. He stated that there is a huge difference between police in Australia and India and he would be charged without hearing and have no legal help and they take the side of women over men. When asked if he was suggesting that his former girlfriend would make false claims against him, he stated that the family of the girl will tell her to do so and maybe she would.

The Tribunal asked the applicant why he had not responded to the request from the Department for further information under s 56 of the Act. The Tribunal noted that this gives rise to concerns about the seriousness with which he took his application and his overall credibility. In response he stated that it was because his English was not good and someone told him to apply for protection and that it would give him the maximum time to stay in Australia.
The Tribunal then raised with the applicant in accordance procedural fairness requirements that the applicant’s evidence suggests that the applicant had made up the claims and applied for protection to prolong his stay in Australia rather than out of a well-founded fear of persecution for a refugee reason or on complementary protection grounds, and that it also gives rise to concerns about the genuineness of the applicant’s evidence before the Tribunal. The Tribunal explained the relevance of the information and informed the applicant that this would be the reason or part of the reason for affirming the decision under review. In response, the applicant stated that initially someone told him to apply for a student visa but because his English was at too low a level he was advised that a protection visa was the better option for him. The Tribunal asked whether he was saying he had applied for protection to further his stay in Australia. In response, he stated there were two reasons he had applied for protection. One was that he does have fear, and the other reason was that a student visa was not the right visa for him so he had no other options at the time.
The Tribunal repeated its question about why he did not respond to the Department’s request for further information. In response he stated that he doesn’t know but it was because his English was not good. The Tribunal asked if the agent had raised it with him. In response he stated he did give him some information but that he believed the information he had provided in the protection visa application was enough and there was nothing further to add.
The Tribunal then raised with the applicant concerns it had with the applicant’s claims and his evidence before the hearing and sought the applicant’s response to those concerns.
The Tribunal noted that the applicant’s evidence was vague, generalised, lacking in detail and inconsistent. The Tribunal noted for example that the applicant was not able to provide specific dates or details of key events. The Tribunal noted that the applicant stated in his protection visa application that he was attacked by two people on a bike but at hearing had repeatedly stated three people. The Tribunal noted that it is expected that the applicant give a consistent account of evidence before the Tribunal and the vagueness of his evidence together with the inconsistencies gives rise to concerns that the applicant had fabricated his claims to achieve a positive visa outcome. In response, he stated that whatever he told me today happened.
The Tribunal noted that the applicant had not provided details in his protection visa application regarding his claimed stay in hospital of 12 to 13 days and had not provided any supporting evidence to the Tribunal. The Tribunal noted that this was a significant detail and the fact that he had not raised it before the Department gives rise to a concern that he had made up the claims to bolster his application. In response, he stated that he doesn’t have proof of his hospital stay but he has marks on his body. The Tribunal found the applicant’s response that he had marks on his body to be vague and lacking in detail.
The Tribunal raised with the applicant its concerns that the considerable delay in leaving India, some three to four years after the claimed events, gives rise to a concern that he did not have the fears he claimed to have and that he had made up the claims to secure a protection visa. In response he stated that his father had passed away and he was upset. He had to make the money to migrate. He had to ask the opinion of his friends and this all took time. The Tribunal asked the applicant how he raised the money to come to Australia if he wasn’t working and was in hiding for three or so years. In response he stated that his relatives helped him financially. When asked to be more specific, the applicant stated his brother-in-law, his father’s sister and other relatives gave him some money.
The Tribunal raised again its concerns regarding the delay in applying for protection when he came to Australia and his lack of response to the Department’s request for further information regarding his claims which suggested that the applicant had applied for protection to prolong his stay in Australia rather than out of a well-founded fear of persecution on a refugee ground or for complementary protection reasons. In response he stated that when he came to Australia, he knew the police were very strict and that’s what his friends told him. When asked the relevance of the applicant’s response he became flustered, and the Tribunal determined it appropriate to have a short recess. On resumption, the Tribunal again asked the applicant the relevance of his comment that the police are strict. In response, he stated that what he was trying to say is the police in Australia are honest, but in his country are corrupt and could put wrong allegations against him but he hasn’t seen the police do anything wrong in Australia.
The Tribunal again raised its concerns about the applicant’s claims raised at hearing that he and his former girlfriend are of different faiths as well as different castes and noted that the Tribunal was required to draw an adverse inference in relation to the credibility of an applicant’s claims raised before the Tribunal that were not before the original decision maker unless there was a reasonable explanation as to why he had not done so. In response, he stated that they were from a different caste and he is not sure what else he could say about this. The Tribunal stated that it was giving him an opportunity to provide the Tribunal with a reasonable explanation as to why he had not raised the claim that they were of different faiths in the protection visa application. In response he stated that he would have forgotten to mention this to the Department but requested that I consider that at least he told them they were from a different caste.
The Tribunal sought confirmation that these were his only claims and whether he had anything further he wished to add. The applicant stated that there was nothing further to add. The Tribunal asked the applicant’s representative whether he considered the Tribunal had appropriately addressed the applicant’s claims and whether he wished to make closing submissions. In response he stated that he believed everything had been covered and that the applicant has explained everything and there was nothing more to add.
Discussion and findings
Credibility
When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and other stresses including those caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.
The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[1] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[2]
[1] S 5AAA Migration Act 1958
[2] MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169–170
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility. Care must be taken not to exclude from consideration the totality of evidence where a portion of it could reasonably have been accepted.[3]
[3] Guo v MIEA; Pan v MIEA (1996) 64 FLR 151 per Foster J at 194
If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[4] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.
[4] UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (UNHCR, re-issued February 2019) (Handbook) at 196
During the hearing, the Tribunal developed considerable concerns about the truthfulness of the applicant’s claims. The Tribunal found aspects of the applicant’s evidence to be largely vague, lacking in detail, highly generalised, inconsistent and at times exaggerated. The applicant was not able to recall specific details about many of his claims or the timing of key events. He was not able to recall key details about his claimed hospitalisation. The applicant’s evidence regarding being threatened and who was threatening him was vague and inconsistent. The applicant raised new claims before the Tribunal that were not before the original decision maker. The Tribunal did not consider the applicant provided a reasonable explanation for doing so. Overall, the applicant provided vague and inconsistent responses to the Tribunal’s questions regarding his written claims and his oral claims at hearing and the Tribunal did not find the applicant to be a credible witness. The Tribunal’s concerns are discussed below.
First, the Tribunal found the applicant’s claims to be extremely vague, lacking in detail, generalised and lacking in genuine basis. As noted above, the applicant was not able to provide clear particulars of key elements of his claims, such as the date or dates of key events, the circumstances surrounding his claimed hospitalisation, the injuries he claims to have sustained at the hand of his former girlfriend’s brother and two others or the treatment for the injuries despite being given repeated opportunities to do so.
Second, the applicant provided inconsistent evidence regarding key elements of his claims, such as the number of his claimed attackers. When this was raised with the applicant, he did not provide an explanation other than to say everything that he had told the Tribunal was true.
Third, the applicant raised substantial new evidence at claims before the Tribunal that were not before the original decision maker. These include claims that he was hospitalised after the claimed physical attack and required an operation to treat his injuries and allergies. The Tribunal found the applicant’s oral evidence regarding the claimed hospitalisation and treatment to be confused, rambling, implausible and lacking a sound basis, such that the Tribunal had real concerns about the genuineness of these claims. The applicant provided very few specific details about the hospital stay, such as the dates he was hospitalised. The Tribunal is not satisfied that if true, this information would have been omitted from the written application. The Tribunal was not satisfied with the applicant’s explanation for not raising this before the original decision maker. As such, the Tribunal is required to draw an adverse inference as to the credibility of this claim under s 423A of the Act.
The Tribunal had similar concerns about the applicant’s claim raised at hearing that the relationship with his former girlfriend was also problematic because it was an inter-faith relationship. The Tribunal considers the applicant’s claim to lack substance and detail and was not satisfied with the applicant’s explanation for not raising this claim before the original decision maker. As such, the Tribunal is required to draw an adverse inference as to the credibility of this claim under s 423A of the Act. The Tribunal does not accept that it was an inter-faith relationship.
Fourth, the Tribunal also has concerns about the genuineness of his claims having regard to the length of time between the claimed events and the applicant leaving India. The applicant claims that the events occurred sometime in 2013 or 2014, around October, but was not able to provide any precise date or dates of key events. The applicant did not leave India until October 2017. The Tribunal did not find the applicant’s reason for the delay to be convincing. The applicant obtained a passport [in] 2016 and then a visa in October 2017, some three to four years after the claimed events occurred. The Tribunal does not consider that if the applicant had a genuine fear of harm amounting to persecution, he would have delayed leaving India for some three to four years after the claimed events occurred. The Tribunal considers that if the applicant genuinely feared for his life he would have relocated within India or sought to leave India as soon as possible. The Tribunal does not accept the applicant’s explanation for the delay, being that it took time to organise, and he had to consider his options. On the applicant’s evidence he was not harmed after the claimed event that led to his claimed hospitalisation. On the applicant’s evidence he wanted to come to Australia to make money as well as because of his claimed fear. The Tribunal considers the evidence before it suggests that the applicant came to Australia for economic reasons rather than out of a well-founded fear of persecution or on any complementary protection ground.
Fifth, the Tribunal also has concerns about the delay in applying for protection of over nine months after coming to Australia and considers that this raises concerns about the genuineness of the applicant’s claims for protection and the credibility of the applicant. When these concerns were put to the applicant the applicant’s explanation was that he could not apply for a student visa because his English was poor, so this was his only option. The Tribunal’s concerns were increased by the applicant’s failure to respond to the Department’s request for information under s 56 of the Act which the Tribunal considers demonstrated a disregard for the visa process and suggested that the applicant’s claims were not genuine. When this was put to the applicant, his explanation for not responding was vague and lacking in substance and did not allay the Tribunal’s concerns about his credibility and the genuineness of his claims.
The Tribunal does not consider the applicant’s claims, if true, have ongoing currency, having regard to the passage of time since the claimed events of some nine years. When asked why he still feared harm if he were to return to India some nine years after the claimed events, he provided generalised and vague responses that were not specific to his claims.
Findings
Having regard to the above concerns and taking into consideration all the evidence before it, the Tribunal does not accept the applicant’s claims or any integers of his claims. Specifically, the Tribunal does not accept that the applicant was in an inter-caste or inter-faith relationship. The Tribunal does not accept that the applicant was threatened or suffered harm because he was in an inter-caste or inter-faith relationship. It follows that the Tribunal does not accept that he was hospitalised or suffered any injuries at the hands of the brother of a person who he was in an inter-caste or inter-faith relationship with. It follows further that they did not tell him that they have very high connections and can harm him seriously or that he did not seek help from the authorities because he was too scared. It follows further that the Tribunal does not accept that the police would not assist him because they are corrupt and favour political people who benefit them financially. It follows further that the Tribunal does not accept that he would be falsely accused of crimes and charges and sent to jail because the brothers of the girl have sources in politicians and police and could have him put in jail for no reason and could make false allegations against him. Further, the Tribunal does not accept that his former girlfriend would bring false charges against him because her family tell her to do so or for any reason. It follows further that the Tribunal does not accept that anyone would still hold a grudge because he dated a girl from their caste. It follows further that the Tribunal does not accept that he can’t relocate in India because his girlfriend does not want him to or because his community is very much against inter-caste marriage. Further, the Tribunal does not accept that the applicant is at risk of being killed because there are several known cases in his country where honour killings have taken place.
It follows further that the Tribunal does not accept that if the applicant were to return to India, he would face a well-founded fear of persecution for a refugee reason or that there are substantial grounds to believe he would face a real risk of significant harm on a complementary protection ground.
Does the applicant have a well-founded fear of persecution if he returns to India?
For the reasons given above, the Tribunal has not accepted any of the applicant’s claims.
As such, the Tribunal finds that there is no real chance that the applicant will suffer serious harm amounting to persecution for a refugee reason as a consequence of his claims or on any other basis, now or in the reasonably foreseeable future.
As such the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Are there substantial grounds to believe that the applicant will suffer significant harm if he is returned to India?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act.
As detailed above, the applicant’s claims have not been accepted. When asked, the applicant confirmed that his only claims were those outlined above and that he had no other claims. As such, the Tribunal finds that the applicant has not provided any other basis on which he claims he will be harmed on return.
As the applicant’s claims have not been accepted, the Tribunal finds on the same basis that there is no real risk of significant harm and is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Phoebe Dunn
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.
…

[2022] AATA 1344

22 March 2022

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