2006990 (Refugee)

2006990 (Refugee) [2021] AATA 5049 (25 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2006990

COUNTRY OF REFERENCE: India
MEMBER:Genevieve Hamilton
DATE:25 October 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 October 2021 at 3.18 pm
CATCHWORDS
REFUGEE – protection visa – India – political opinion – Congress Party members – attacks by Shiromani Akali Dal – torture – physical assault – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424A, 425, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
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
BACKGROUND

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 April 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
It is noted in the Delegate’s decision (which the applicant uploaded with his review application) that the applicant arrived in Australia [in] June 2013, as the holder of a student visa. His offshore student visa was cancelled on 26 September 2014. In the meantime the applicant had applied for a new student visa in Australia on 22 May 2014 and this application was refused on 14 August 2014. The applicant applied for a review of the onshore student visa refusal at the then Migration Tribunal Review (MRT) on 03 September 2014 and the decision was affirmed on 13 April 2016. The applicant submitted a ministerial intervention request [in] June 2016 and the outcome of inappropriate to consider was recorded on departmental systems [later in] June 2016.
The applicant applied for a protection visa on 7 September 2016. The delegate refused to grant the visa on 8 April 2020. The applicant applied for a review of the decision on 11 April 2020.
CRITERIA FOR A PROTECTION VISA
Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.
The criteria for a protection visa are relevantly set out in s.36 of the Act. An applicant must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on ‘complementary protection’ grounds, or be a member of the same family unit as such a person.
Refugee
Refugee is defined in the Act. A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).
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.
The criterion in s.5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).
A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA).
A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s.5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation).
In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s.5J(6)).
Complementary Protection
If a person is found not to meet the refugee criterion in s.36(2)(a), they may still be a person to whom the Minister is satisfied Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm: s.36(2)(aa). S.36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment. “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.
CLAIMS AND EVIDENCE
In his protection visa application the applicant said that he was born on [date]. He was not in contact with relatives outside Australia. He said he had no assistance completing the form including from an interpreter. He was born in [his home town in] Punjab, India. He is an Indian citizen as are his parents. He speaks, reads and writes Punjabi, Hindi and English. He is ethnically Punjabi, his religion is Sikh. He arrived in Australia [in] June 2013 travelling on his Indian passport, as a student. He has not left Australia since. He matriculated from High School in India in [year]. He completed a [Qualification 1] from November 2013 to March 2014 and a [Qualification 2] from June to November 2013 (both in Adelaide).
The applicant submitted a written statement of his claims as follows:
I came to Australia for me bright Future and good life. There’s also some other reason
that why I came to Australia, why I cannot go Back to India and why I want to apply for
protection visa.
I was on born [DOB 1], everything was going good till I am teenager. I belong to a
Sikh Community Those who wear turbans, who loves their god and help each and
every person. When I was back in India and I was about [age] and I was fully in to Sikh
which means I used wear turban and kept My beards and maintain all Sikhism rules.
As we know every teen is active when they in their [age range] and they want to go for different opportunities. When I was into my [age] I was active member of Congress Party (It is one of the largest and oldest democratically-operating political parties in the
World. The Organisation was founded during the British Colonial times in 1885.) I
used to take part in every and each party routine/activities, and going to different cities
or village to see how people Going and working on their issues, I was a very hard
worker and received an award for my hard work. In those days there was only few of
Sikh people were member of the Congress Party. There was an opposite party of
Congress Party which is Called Shiromani Akali Dal (is a Sikhism centric Political party
in India, Punjab. The basic meaning of Akali Dal is to give political voice to Sikh Issues
and it believes that religion and politics go hand in hand). I and those who were also
from Sikh Community were often tortured by Akali Dal members to leave the Congress
and join the Akali Dal. Once in 2006 time the election was happening, me and some of
our other party member was Helping out people about casting votes to congress party,
somehow Akali Dal Party member try to Stopped us, when we didn’t they start beating
us and took us in the car and throw us on the road, it Was me and one of our another
member, at that time we try to get help from Police but none of the Police member
helped us. Few days later they came to my house to ask me what I want to do either
Join the Akali Dal or leave the Congress Party. I refused the request and asked them
to go out of me House, they attacked on me and my brother. My brother ran away and
they left me in very painful Condition. I was hospitalised for several days. They tried
and tried but didn’t success. After few weeks later they start bringing police to my
house to torture me again, I was beaten by them again. My parents decided to hide
me for few weeks and I was sent to my relative’s house. After several days I found that
they are torturing my family and my Brother and me brother was hospitalised for month.
After few months when I came to see my family I was attacked in the middle of the road
they attempt to kill me, but somehow somebody took met hospital and contacted my
family. And we found that 2 of our Congress Party member who were Also Sikh got
killed in an accident, but i knew that they were killed by Akali Dal members. My family
was in a big shock and didn’t want to lose their son because this time they attempt to
kill and they could kill me any time. Due to this again and again happening my parents
decided to Send me and my brother abroad and move to different city. They were
many difficulties we have to go thru, I would lose my life if I was still there, because
they are still looking for me. Many of My Friends still call me and always tell me to not
to come back to India. Even though my family moved Out to Different city they still
torturing them and calling them every day to ask where I am. My Life’s last 3year I
lived through in pain, hospital, hiding and even though I have to leave my family
Forever. It’s been 8 years I haven’t met and same with my Parents. Since I’ve came
to Australia life was really good, I had every opportunity to live my life my way and
Work hard. After all this my parents also not maintain relation with me. My parents
said “You are dead for us”. I have no relation with my family. I am alone in the world. I
don’t have anything now.
I am so frustrated and pressurise. I can’t even go back, if I did one of They will kill me.
I am so depressed that I feel like commit suicide sometimes but then there always
Something that stop my family I have think about them as well. I just don’t know what
to do. I did try to other ways so I don’t have to get protection visa but I could so finally I
came to know Through my friend about it. which can be great use for us to survive and
live peacefully where laws Are being followed by each and every one were everyone is
treated equally. I am not safe in life this I Won’t be able to survive a peace full life in
India. You can contact me any time for more information about my applying on
protection visa application. All these are the reasons why I am unable to go to my
country India. Therefore, I humbly request Permission to live in Australia. I hope
Government of Australia will kindly favour me and protect me life by providing shelter
for me here.
With respect, you can contact me any time for more information about my protection
visas application.
The applicant was interviewed by a case officer on 13 March 2020 with the assistance of a Punjabi Interpreter.
The applicant said he completed the application himself while a friend was sitting next to him helping with the English. About the events that were said to have occurred in 2006, he said the year was 2007. He was born near Chandigarh. He has only ever lived in Punjab. He completed [grade] and came to Australia at the age of [age]. Because of the election fights he couldn’t continue his studies so his parents decided he should go overseas. He chose Australia for his education. He was studying [a named subject]. He got sick wanted to change course and go to a different school. He was depressed and anxious. He was not aware he had breached his visa conditions and his visa was cancelled. He didn’t have the documents required for a new student visa (i.e. CoE) because the college wouldn’t give him one without him paying the full 12 months fees. He gets food at the Sikh Temple.
During the elections he was following his dad who is Congress Party. His father is a “strong supporter”, “strong member”. Akali Dal won, and committed excesses against other parties. The police are also aligned with the Akali Dal. The applicant was helping his Dad who is a strong member and a good supporter. “We were making people aware not to sell their votes to Akali Dal”. Because of my family and friends, we have to make people aware. We go to houses and tell them to vote Congress. I was with my father but I also worked with other teams and it became a serious issue. We were being strong, we were famous and could bring change. Akali were forcing people to support them.”
The Delegate observed that in 2007 the applicant was only [age]. The applicant said that political leaders can begin their activism when young.
About the events in 2007 the applicant said “They had more people. They took us away and put us in a vehicle and bashed us and took us away to another place”. He was with about 10 friends. He showed the Delegate some scars. Asked who attacked him and his friends the applicant said they were “opposite party goons, I don’t know exactly”. Some of his friends got killed as well. There were 30 of the others. He and his friends went home and then went to the police. The police didn’t do anything because there was no evidence. The applicant said “There were many other fights and we have no evidence”.
Asked what happened in the next 6 years the applicant said he just started hiding it was a risk to live there. ”It was hard to study, it was torture. They were stopping us. They would tell us to stop what we were doing. They took it personally”. Asked what happened during this time the applicant the applicant said “Nothing big. We came down. We reduced our involvement. But the others had vengeful feelings against us.” Asked if he was threatened or harmed the applicant said “those people got to know about our family and they started torturing us”. Asked what he meant by this the applicant said “Looking for us and threatening us”. The police were also involved. The applicant said he was beaten up 3 or 4 times. A few friends got killed but they made it look like an accident. Asked when this happened the applicant said “When we were doing activities. Even though reduced we were still active and we used to go and tell people about the Party. Once in 2009 coming from school people attacked brutally, they were going to kill me but people protected me. I was telling people about grants. I learned about it from my father.”
The applicant said he has had no contact with his parents since 2014. He wanted to go home because he didn’t finish his studies but they said no. They said it was a risk to go back because of the politics. They were angry and said if he goes back the same thing will happen again. He had been here two years when he stopped contact with his family.
The applicant said he couldn’t lodge a protection visa straight away because had a student visa valid for 3 years. After he stopped studying he was rejected for further study visa. You never raised these claims with the Department or the Minister. The Delegate observed that the applicant had never raised his protection claims in earlier dealings with the Department. The applicant said he wanted to go through the student process and was entitled to do so. The CO put to the applicant the country information indicating that there is some political violence but elections are mostly peaceful. The applicant replied “All countries say that”.
The Delegate informed the applicant that his statement of claims was largely identical to that of other applicants. It was unlikely that unrelated people could have identical claims expressed in almost identical wording. The applicant said he did not know anything about this.
The Tribunal has before it another case with a virtually identical statement of claims. On 6 October 2020 the Tribunal wrote to the applicant pursuant to s 424A of the Act inviting him to comment on or respond to certain information which it considered would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review. The letter read in part as follows:
The particulars of the information are that your statement of claims is almost identical to claims made by another applicant, who lodged a protection visa application before you did. This information is relevant to the review because it could indicate that you have copied your claims from someone else, or that a third party has written your claims. This could lead the Tribunal to the view that your claims are not genuine. If we rely on this information in making our decision, we may find that you do not have a well-founded fear of persecution, which would be a reason for affirming the Delegate’s decision.
The letter included the text of the applicant’s claims as set out in paragraph 15 above, and the relevant text of the claims in the other case, which were as follows:
I came to Australia for my bright Future and good life. There’s also some other reason
that why I came to Australia, why I cannot go Back to India and why I want to apply for
protection visa.
I was on born [DOB 2], everything was going good till I am teenager. I belongs to a
Sikh community Those who wear turbans, who loves their god and help each and
every person. When I was back in India and I was about [same age] and I was fully in to Sikh which means I used wear turban and kept My beards and maintain all Sikhism rules.
As we know every teen is active when they in their [same age range] and they want to go for different opportunities. When I was into my [same age] I was active member of Congress Party (It is one of the largest and oldest democratically-operating political parties in the World. The Organisation was founded during the British Colonial times in 1885.) I
used to take part In every and each party routine/activities, and going to different cities
or village to see how people Going and working on their issues, I was a very hard
worker and received an award for my hard work.
In those days there was only few of Sikh people were member of the Congress Party.
There was an opposite party of Congress Party which is Called Shiromani Akali Dal (is
a Sikhism centric Political party in India, Punjab. The basic meaning of Akali Dal is to
give political voice to Sikh issues and it believes that religion and politics go hand in
hand). I and those who were also from Sikh Community were often tortured by Akali
Dal members to leave the Congress and join the Akali Dal.Once in 2006 time the
election was happening, me and some of our other party member was Helping out
people about casting votes to congress party, somehow Akali Dal Party member try to
Stopped us, when we didn’t they start beating us and took us in the car and throw us
on the road, it Was me and one of our another member, at that time we try to get help
from Police but none of the Police member helped us. Few day later they came to my
house to ask me what I want to do either Join the Akali Dal or leave the Congress
Party. I refused the request and asked them to go out of my House, they attacked on
me. I am ran away and they left me in very painful Condition. I was hospitalised for
several days.
They tried and tried but didn’t success. After few weeks later they start bringing police
to my house To torture me again, I was beaten by them again. My parents decided to
hide me for few weeks and I was sent to my relative’s house. After several days I
found that they are torturing my family and my father was hospitalised for month. After
few months when I came to see my family I was attacked in the middle of the road, they attempt to kill me, but somehow somebody took me To hospital and contacted my
family. And we found that 2 of our Congress Party member who were Also Sikh got
killed in an accident, but i knew that they were killed by Akali Dal members. My family
was in a big shock and didn’t want to lose their son because this time they attempt to
kill I and they could kill me any time. Due to this again and again happening my
parents decided to Send me abroad and move to different country and they decided to
married me and send me Australia. They were many difficulties we have To go thru, I
would loosed my life if I was still there, because they are still looking for me. Many of
My Friends still call me and always tell me to not to come back to India. Even tho my
family moved Out to Different city they still torturing them and calling them every day to
ask where I am. My Life’s last 3year I lived through in pain, hospital, hiding and even
tho I have to leave my family Forever. It’s been 9 years I haven’t met he haven’t been
back to India.
…
I don’t have anything now. I am so frustrated and pressurise. I can’t even go back, if I
did one of They will kill me. I am so depressed that I feel like commit suicide
sometimes but then there always Something that stop my family I have think about
them as well. I just don’t know what to do. I did try to other ways so I don’t have to get
protection visa but I could so finally I came to know Through my friend about it. which
can be great use for us to survive and live peacefully where laws Are being followed by
each and every one were everyone is treated equally. I am not safe in life this I Won’t
be able to survive a peace full life in India.
You can contact me any time for more information about my applying on protection visa
application.
All these are the reasons why I am unable to go to my country India. Therefore, I
humbly request Permission to live in Australia. I hope Government of Australia will
kindly favour me and protect my life by providing shelter for me here.
With respect, you can contact me any time for more information about my protection
visas application.

The applicant did not respond to the letter and the statutory time period for responding has now expired.
The Migration Act requires the Tribunal, reviewing cases in its Migration and Refugee Division (MRD), to conduct a hearing prior to making its decision (s 425). However, there are some exceptions to this rule. For example, the Tribunal may make a decision without inviting an applicant to attend a hearing if the applicant fails to comply within the prescribed time with a request under s 424A to comment on, or respond to, adverse information. For a review of a protection visa decision under Part 7 of the Migration Act, the power to proceed to a decision without inviting the applicant to a hearing is discretionary.
The Tribunal is satisfied that its 424A invitation complied with the requirements of s424A and with the applicable statutory notification requirements.
The Tribunal had reached out to the applicant by phone (on 25 August, leaving a voicemail message requesting a callback) and by email the same date, asking him if he was available to participate in a hearing by video conference or teleconference, considering that the Tribunal’s offices were closed due to Covid. The applicant did not respond and no hearing invitation was sent. The applicant has already had the opportunity to engage with the Tribunal regarding the conduct of a hearing. In these circumstances, the Tribunal has decided to proceed to a decision.
FINDINGS AND REASONS
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.
Based on the information in his application the Tribunal finds that the applicant is a citizen of India.
The applicant claimed to be at risk of political violence from the Akali Dal due to being an active supporter of Congress Party. He claimed to have experienced a number of violent incidents and threats beginning in 2007.
The Tribunal does not accept that the applicant is a member or supporter of Congress Party at all, let alone an active member involved in Party activities as claimed. The reasons for this finding follow.
Firstly, the Tribunal finds that the applicant has copied his statement of claims, or someone has copied it for him, from those of another applicant. It is inconceivable that his claims would be written almost identically to those of another applicant who had already lodged an application, if they were his own genuine experiences. Although the applicant stated in his interview with the case officer that he wrote them himself with a friend helping, the Tribunal does not accept that this is the case.
Secondly, the applicant’s claim to have been active in politics at the age of [age] was not readily believable, albeit that he did say that he was mainly helping his father. It was also internally inconsistent in the sense that his statement describes becoming politically active in his late teens, at an age when he was already in Australia. The latter concern was compounded by the claim that he had been separated from his family for 8 years, when he had only been in Australia for three years at the time he made the protection visa application.
It follows that the Tribunal does not accept that the applicant or his family were ever harmed or threatened in any way due to political activity. This finding is reinforced by the following matters.
Firstly, as found above, the applicant has copied his claims which means they are not credible.
Secondly, the claim is not consistent with the country information which indicates that political violence does occur but considering the size of the population it is relatively rare and confined to election days and polling places. The DFAT Country Information Report India 10 December 2020 contains the following relevant information
3.90 There are few publicly available statistics on election incidents. Reports of violence around polling stations do occur during electoral periods. For example, in the 2019 general election campaign, clashes between party supporters, protests and other violent incidents were reported in 11 (of then-29) states. Seven deaths were recorded of voters, party workers and elections officials, including by security forces, with multiple others injured. The Electoral Commission of India (ECI) ordered repolling in around 270 (of 1 million) polling stations due to allegations the booths had been 'captured' and voters intimidated by supporters of one or another party. The ECI also banned campaigning in West Bengal a day early after a major clash between the supporters of the BJP and the governing All India Trinamool Congress.
3.91 DFAT assesses leaders and members of opposition parties do not face official or societal discrimination on a day-to-day basis. The risk of political violence between rival supporters increases during parliamentary and state elections, especially in states where results are tightly contested. However, in general, given the scale of the Indian election process, elections are conducted peacefully. DFAT assesses people who publicly express views critical of the government face a moderate risk of official discrimination. This may include arrest, harassment and prosecution.
DHA Country of Origin Information Services – Common Claims India 31 March 2021 contains the following information about election violence including Akali Dal:
The Akali Dal was founded in 1920 as a representative body to advocate for Sikh rights in British India. Post-independence, the Akali Dal or Shiromani Akali Dal (Supreme Akali Party) emerged as the main political rival to Congress in Punjab, particularly following the creation of a Sikh majority state in 1966. The party divided into factions in the 1980s and has since split further into rival parties. The major faction is the Shiromani Akali Dal (Badal), which was the senior coalition partner in government with the BJP in Punjab before losing power to the Congress Party in state assembly elections held in early 2017. Shiromani Akali Dal workers clashed with Congress and Aam Aadmi Party workers during the February 2017 Legislative Assembly election in Punjab. There was also poll violence involving Shiromani Akali Dal supporters during the 2019 general election. Prior to the 2019 election, the Shiromani Akali Dal and the BJP entered into a seat sharing arrangement in Punjab; the Shiromani Akali Dal won only two of the ten seats it contested.
318 In August 2020, the president of a rural unit of Youth Akali Dal (YAD) was shot and killed while participating at a tree plantation drive at a shrine.319 The victim’s father was a Shiromani Akali Dal loyalist, and 17 months prior his elder brother had been killed in a dispute over political posters with a rival Congress party group.
The Tribunal is satisfied that this information also reflects the situation at the time of the applicant’s claims. The applicant’s claim that the Akali Dal target Congress supporters outside election times and try to force them to join Akali Dal is not supported by the country information.
Thirdly, the applicant did not make a protection visa application until he had been in Australia for more than three years, despite having difficulty with his studies and having a student visa cancelled and a second one refused and no CoE on which to base his case to continue studies. It was only when Ministerial Intervention was refused and when he was about to have to leave Australia that he lodged a protection application. The Tribunal can understand that the applicant would have preferred a student and skilled migration path but if his experiences were true and he had a genuine fear of political opponents in India the Tribunal would have expected he would turn his mind earlier to an appropriate means of regularising his status so that he did not have to return to an unsafe situation.
As the Tribunal does not accept that the applicant is a Congress Member or activist it does not accept that the applicant faces a real chance of serious harm from any other political Party in the reasonably foreseeable future.
The Tribunal accepts that the applicant is a Sikh.
The DFAT Country Information Report includes the following information.
Sikhs
3.62 India has a Sikh population of 20.8 million people (2011 census). The growth rate of Sikhism declined since the 2001 census. Sikhism is the dominant religion in the state of Punjab (approximately 16 million people) with significant populations in Haryana (1.2 million), Delhi NCR (570,581), Rajasthan (872,930), Uttar Pradesh (643,500) and Uttarakhand (295,530).
3.63 India’s Sikh population has suffered from issues surrounding recognition. The constitution groups Sikhs, Buddhists and Jains with Hinduism; therefore they are not legally recognised as distinct religions.
…
3.66 NGOs report communal violence disproportionately affects India’s religious minorities, in particular Muslims, but also Christians and Sikhs, who face varying degrees of socio-economic, cultural and legal discrimination. Reports of minor cases of violence against Sikhs occur.
3.67 According to information cited by the Immigration and Refugee Board of Canada (IRB), since the late 1980s, Sikhs living outside Punjab mostly do so safely and integrate economically and socially into their communities. IRB notes while there can be localised discrimination, for example blocking entry to public areas or requiring the removal of articles of faith (turbans or kirpans) before sitting examination in educational programs, such issues are adequately addressed by local courts or police. Sikhs may face difficulties integrating in areas where a Sikh community does not already exist, and may face discriminatory treatment from law enforcement and government officials for wearing the kirpan.
3.68 DFAT assesses Sikhs in India generally face a low level of official and societal discrimination and violence.
The applicant is from Punjab which is predominately Sikh state. The Tribunal is satisfied that any chance of serious harm to the applicant due to his religion in the reasonably foreseeable future is both remote and speculative.
The Tribunal accepts that the applicant is estranged from his family and that his situation has been depressing for him. However, the Tribunal is not satisfied that the applicant will suffer serious harm in the reasonably foreseeable future arising from these circumstances.
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant faces a real chance of serious harm for any s.5J(1) reason. He therefore does not have a well-founded fear of persecution as required by s.5J(1). The Tribunal finds that the applicant is not a refugee as defined in s.5H(1).
As the Tribunal has not accepted the factual basis of the applicant’s claim to fear harm in India, the Tribunal is not satisfied there are substantial grounds to believe that as a necessary and foreseeable consequence of being removed from Australia to India, there is real risk that he will suffer significant harm warranting complementary protection.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or 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.
Genevieve Hamilton
Member

[2021] AATA 5049

25 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice