2011352 (Refugee)

[2021] AATA 5144

2011352 (Refugee) [2021] AATA 5144 (25 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2011352

COUNTRY OF REFERENCE:                   India

MEMBER:Amanda Paxton

DATE:25 November 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 25 November 2021 at 2:39pm

CATCHWORDS

REFUGEE – protection visa – India – political opinion – Congress Party members – attacks by Bharatiya Janata Party (BJP) – attack on business – physical assault – state protection – credibility issues – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (‘the Department’) on 22 June 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act1958 (Cth) (the Act).

2. The applicants, who claim to be citizens of India, applied for the visas on 21 November 2016. The delegate refused to grant the visas on the basis that that the delegate was not satisfied the applicants are persons in respect of whom Australia has protection obligations under either the refugee or complementary protection provisions.

3. On 8 July 2020, the applicants validly applied for review of the delegate’s decision to the Tribunal, attaching a copy of the delegate’s notification and decision record from the Department to the application.

4. The first named applicant (the applicant) gave evidence at a hearing on 8 November 2021 by telephone through MS Teams. The Tribunal exercised its discretion to hold the hearing by telephone at the request of the applicant who does not have video capability, as the hearing was held when COVID-19 pandemic restrictions, while easing, were still in place. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The audio was clear throughout the hearing. The Tribunal was satisfied that the applicant was able to give evidence and present arguments to the Tribunal throughout the hearing.

5. The applicant was not represented at the hearing. The hearing was conducted with the assistance of an interpreter in the Gujarati and English languages. The Tribunal did not receive oral evidence from any witnesses.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.

10. 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

11. 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.

    Credibility

12. The mere fact that a person claims fear of persecution for a particular 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 sufficient 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: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

    CLAIMS AND EVIDENCE

13. The issue in this case is whether any of the applicants 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 applicants being removed from Australia to India, there is a real risk that any of the applicants will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Nationality

14. The applicants claim to be nationals of India. The applicant provided the Department with a copy of the bio-page of his passport[1]. The applicant’s passport indicates it was issued [in] 2015 and will expire [in] 2025. The second named applicant (the second applicant), the applicant’s wife, provided the Department with a copy of the bio-page of her passport[2]. The second applicant’s passport indicates it was issued [in] 2010 and expired [in] 2020. On the available evidence, and in the absence of any contrary information, the Tribunal finds that the applicants are nationals of India. This is therefore the country of reference for the purpose of assessing his refugee claims, and the receiving country when assessing his eligibility for complementary protection.

    [1] [File number], Tribunal doc ID [number].

    [2] [File number], Tribunal doc ID [number].

    Background

15. On the basis of the documentary evidence before it and the applicant’s consistent evidence in his written application to the Department and at his Tribunal hearing, the Tribunal is satisfied the personal details provided by the applicant are credible. The Tribunal is satisfied the applicant was born on [date] in [Village 1], [Town 1 in] Gujarat in India and acquired Indian citizenship at birth.[3]

    [3] [File number], Tribunal doc ID [number].

16. On the same basis, the Tribunal accepts the applicant’s statements in the Form 866C that his ethnicity and his religion are Hindu and that he can speak, write and read Gujarati, but can only read and write English. The Tribunal accepts the applicants are married, having married [in] 2009 in Mehsana. 

17. The Tribunal accepts the second applicant is also in Australia, and that she is included in the application as the secondary applicant. The Tribunal further accepts the applicants have a daughter living in Gujarat, India, born on [date]. 

18. The Tribunal also accepts the applicant’s evidence at hearing, consistent with his protection visa application that he was born in the village of [Village 1] but raised in [a named] district of the city of Ahmedabad. On the same basis, the Tribunal further accepts the applicant finished [grade] about [year range] and worked casually for one or two years before starting his own business. Initially, he owned a [business type] and then [another business type], where his father helped him, and he had one person working for him. About six months after his arrival in Australia, he closed the business.

19. The Tribunal accepts the applicant’s consistent evidence that his parents who had moved to Ahmedabad when the applicant was young have returned to the village of [Village 1] where they support themselves farming in the village and helped by remittances from the applicant. The Tribunal accepts the applicant’s parents look after the applicants’ [age] year old daughter, and that the applicants speak with them regularly and that the applicant also has a sister in Gujarat.

20. The applicants arrived in Australia together [in] August 2016 on Visitor visas. In Australia, the applicant and his wife both work in a [business].

    Written claims for protection

21. The applicant’s written claims for protection are first put forward in his signed statement accompanying his Form 866C.  In summary, he claims that he left India because he fears persecution from Bharatiya Janata Party (BJP) members. The second applicant indicated in the Form 866C that she is not making her own claims for protection. The applicant makes the following claims:

    ·The applicant’s parents were members of the BJP, but the applicant’s father left the BJP in protest against the leaders’ corruption and crimes against humanity, joining the Congress Party, and the applicant followed him.

    ·The applicant became a member of the Congress Party and was involved in various activities to help increase its popularity within the community. The applicant worked very hard for the Congress Party candidate during the state’s legislative elections, spending a large amount of money for the election campaign. Thanks to the support and finances provided, the party’s popularity increased, and the applicant became well known to members of the BJP party.

    ·While participating in the Congress Party election campaign, the applicant was warned by BJP members. Before the election he was approached by the BJP leader, who asked him for a donation in support of the BJP candidate, but he refused. Members of the BJP went to his business and ransacked his shop. When he tried to stop them, he was dashed to the ground and kicked, with blood gushing from his mouth; his two employees were also kicked to the ground. This attack caused him lasting mental and physiological lasting damage.

    ·The attackers told the applicant not to report the matter to the police, and his father advised the applicant not to file a police report as it is very hard to obtain protection from BJP members. The applicant was forced to secretly donate funds to the BJP to continue his business and to protect his family.

    ·In 2009 the applicant was approached by the BJP leader who asked him to join the party, offering him a position in his area but the applicant refused.

    ·The applicant was told that refusing to join the party would cause many problems for him and his family. He was asked to pay more money the following month or leave his business if he wanted to ‘be alive’.

    ·BJP members increased their efforts against the applicant, and it became increasingly hard for him to resist. The applicant’s business suffered due to his lack of supervision, as he stayed home on most days.

    ·A friend warned him of the seriousness of his situation, warning they may kidnap his son to extort money from him, and suggesting he close his business and leave India as soon as possible.

    ·When the applicant stopped paying them, they went to his business to look for him and when they could not find him there, they went to his home. He was not at home at that time, and they assaulted his wife, threatened his elderly parents, and ransacked all of their valuables; they further insulted his wife by ‘grabbing her’ to tell the applicant to pay them immediately.

    ·The applicant claims that he and his family are still suffering physical and psychological effects from their experience in India. He came to Australia to seek protection as he feared that if he returned to India, he would not be able to escape from the BJP ‘mobs’.

    ·Since his arrival in Australia, the BJP went from governing his state of residence, Gujarat, to ruling in the central government; due to this change of circumstances, he fears being killed if he returns to India. The leaders of the Congress party and other parties who do not support the BJP are being made targets of BJP members.

22. Apart from the copies of his and his wife’s passports and his claims for protection contained in his signed statement attached to the Form 866C, the applicant did not provide any documents to the Department in support of his claim for Australian protection.

    Relevant country information

23. The Tribunal has considered the country information provided by the DFAT Country Information Report for India, dated 10 December 2020, which reports the following:[4]

    [4] DFAT Country Information Report India, 10 December 2020.

    POLITICAL OPINION (ACTUAL OR IMPUTED)

    3.80 India’s constitution provides for freedom of speech and expression, freedom of assembly, and the right to form associations (Articles 19-22). The Government of India can impose reasonable restrictions to these freedoms in the interests of sovereignty and integrity of India, national security and public order, and to maintain decency and morality. India has laws on sedition and criminal defamation, and laws regulating the use of the internet. According to Human Rights Watch (HRW), these laws curb Indians’ constitutional freedoms.

    3.81 Democratic elections for the Lok Sabha, the lower house of parliament, have been held since 1951. The only exception to this was when the Indian Congress Party’s then-Prime Minister Indira Gandhi postponed elections during a period of emergency rule from 1975 to 1977. Notwithstanding the scale and complexity of India’s political landscape, and noting some exceptions, elections in India tend to be peaceful, broadly free and fair, reflect the will of the electorate, and result in regular transfers of power at central and state levels. Activists have occasionally called for communities in conflict-affected areas to boycott electoral processes, and low-level violence has sometimes occurred.

    3.82 India has a diverse political landscape, which represents different ethnic, religious, secular and political interests. There are no constitutional, legal or other institutional restrictions preventing minorities from participating in politics. Political parties often court ethnic, religious and caste-based minorities for their ability to deliver ‘vote banks’.

    3.83 Observers assess the government has sought to align Indian nationalism with Hindu nationalism. They claim the BJP has benefited politically from some Hindu organisations’ use of violence to polarise the electorate along religious lines. The 2019 USCIRF report – which the Indian Government rejects – claims certain BJP members have affiliations with extremist Hindu groups and have used inflammatory language about religious minorities publicly (see Recent History and Hindu nationalist organisations). This has led to concerns minority rights and religious freedoms are being threatened, and the link between democracy and secularism is being weakened.

    Opposition Parties and Critics of the Government

    3.84 India has hundreds of political parties registered with the election commission, with a small group registered as national parties. The BJP and its rival the Indian National Congress (Congress) party are the largest among them. Since independence, the Congress party has dominated the national movement for ending British rule and has formed most of India’s governments. The party, which has lost successive general elections to BJP since 2014, is currently led by Sonia Gandhi. Other national parties include:

    …

    3.85 Besides the national parties, numerous regional movements play an important role in each state. The influence of regional parties has reportedly been growing steadily, often at the expense of the Congress.

    3.86 The constitution protects the rights to freedom of speech, and to form associations and unions. This right is subject to ‘reasonable’ restrictions in the interests of public order, decency or morality. Public demonstrations require advance notice and permission of authorities and frequently occur. Intelligence agencies regularly monitor the activities of civil society actors and individuals engaged in particular areas of sensitivity. According to some commentators, the right to freedom of speech is limited in practice, with government control tightening.

    …

    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.

    Police

    5.4 India’s constitution devolves responsibilities for police and public order to the states. Each state and union territory maintains its own police force, and two-thirds of this cohort hold junior ranks. The national corps within the Indian Police Service (IPS) are selected by competitive exams, hold senior ranking positions and enjoy other benefits, including housing and transport. According to a 2018 survey across 22 states, the Centre for the Study of Developing Societies found less than 25 per cent of Indians trust the police highly (compared to 54 per cent for the army). The World Justice Project’s 2020 Rule of Law Index ranked India 114 out of 128 countries with respect to order and security (see also Corruption). This measure considered issues such as crime, civil conflict and use of violence to redress personal grievances. Centralised Indian Police Service

    5.5 Article 312 of the constitution establishes a centralised IPS. The IPS is organised into state cadres to provide senior-level leadership to state police forces and to centralised forces. The MHA is responsible for IPS officers and policy decisions, including structure, training, allocation, confirmation, pay, allowances and disciplinary matters. State and central governments review IPS budget allocations every five years. As at March 2019, there were 4,982 IPS officers spread across 26 state cadres, with the states of Uttar Pradesh, West Bengal and Maharashtra having the most IPS officers, and Uttarakhand, Tripura and Sikkim having the least. The MHA is also responsible for a range central police functions (see State Protection).

    State Police Services

    5.6 According to The Economist, India’s 1.9 million police officers ‘do not enjoy a good reputation’.

    However, local sources report police effectiveness is hampered by lack of resourcing and infrastructure. Police budgets, on average, account for 3-5 per cent of state expenditure. The Status of Policing in India Report 2019 (which used official data drawn from the NCRB and the Bureau of Police Research and Development to assess police capacity and adequacy) found inadequate infrastructure (physical, technological, human), resourcing and training compromised police operations. According to the report, approximately 240 police stations across India have no access to vehicles; 214 have no access to telephones; 70 have no access to wireless connections; and 24 have no access to either telephone or wireless connections. On average, police stations in India have six computers per station, but states like Assam and Bihar have an average of less than one computer per station.

    5.7 Lack of ‘boots on the ground’ is another key capacity problem. Police in India reportedly work at 77 per cent of their sanctioned personnel capacity. This equates to around 1.2 ordinary police officers per 1,000 people, about half the level recommended by the UN. Long working days and unpaid overtime are common complaints.

    5.8 Representation of SCs, STs, OBCs and women in the police forces is poor, with large vacancies in these reserved positions. SCs, STs, OBCs and women are less likely to be recruited/posted at officer-level ranks than are general police personnel. The India Justice Report 2019 found women account for 7 per cent of police personnel.

    5.9 To safeguard police operational autonomy from political interference, the Supreme Court directed states to introduce legal amendments to ensure police officers be guaranteed a minimum tenure of two years to function efficiently. However, in practice, over a quarter of police reportedly consider pressure from politicians is the biggest hindrance in crime investigation. Undermining safeguards, premature transfers of personnel are higher during election years, with the states of Uttar Pradesh and Haryana having the highest transfer rates. Premature transfers are also a common consequence of non-compliance with political pressure. The Economist reports lack of ‘man-power’ and ‘meddling politicians’, were in the top three problems facing police officers in India.

    FINDINGS AND REASONS

1. The Tribunal has considered the claim made in the applicant’s statement and at hearing that on return to India he faces persecution at the hands of BJP members in Gujarat, and across India and Nepal, because of his support for the opposition Congress Party.

2. In his written statement and at hearing, the applicant claimed that his father was an active member of the BJP but left the BJP because he was not involved in corruption, and joined the Congress Party. The Tribunal noted at hearing that, as set out in the Departmental decision record provided to the Tribunal by the applicant, he told the delegate at interview that his father was an informal member of the Congress Party. In response, the applicant indicated that he did not know about the status of his father’s membership. The Tribunal formed the view that the applicant’s knowledge of his father’s involvement in the Congress Party was limited but on the basis of his consistent evidence, the Tribunal is willing to accept his father became disillusioned with the BJP and transferred his support to the local Congress Party and was actively involved in Congress Party activities at a local level.

3. The applicant gave oral evidence that, because he was involved in his business, he was not politically active or politically involved at any time himself but that when his father joined the Congress Party, he helped his father who was active locally by giving him ideas and tips, and when his father was involved in functions “he provided advice and that sort of thing”. The Tribunal invited more detail about his involvement, but this was not provided. He stated that he started giving his father tips around 2004 to 2005 and he continued doing this but “only as a supporter” until about 2008 to 2009. He indicated that this was the limit of his involvement until he departed India in 2016. On the evidence provided by the applicant, the Tribunal is satisfied the applicant had a low-level profile as a supporter of the Congress Party through association with his father who was actively involved in local level Congress Party activities.

4. Based on the oral evidence of the applicant, the Tribunal is satisfied the applicant’s involvement in Congress activities was limited to providing occasional advice in the background to his father about local activities. The applicant’s oral evidence is inconsistent with his written claim that he became a member of the Congress party, was involved in various promotional activities for Congress, worked hard and spent a lot of money for the Congress Party candidate during the state’s legislative elections, and became well known to members of the BJP. The inconsistency in the evidence leads the Tribunal to doubt the credibility of the applicant’s written claims and suggests they were embellished to strengthen his claim to be a refugee. Giving weight to the applicant’s oral evidence, the Tribunal does not accept the applicant had a profile as an active supporter of BJP activities. On the plausible evidence of the applicant at hearing, the Tribunal accepts the applicant followed his father in his political views, but the Tribunal does not accept he became a member of the Congress party or that he was involved in any direct way with Congress activities.

5. At hearing, the applicant stated that during the 2008 and 2009 elections, he started giving his father more advice and “they” started threatening to harm him to stop him from doing this. He does not remember who made the threats but states they were BJP workers because they told them not to support the Congress Party. The applicant gave evidence that in 2009, two people came to his shop and threatened him, demanding money, and that later they returned and attacked him and ransacked the shop. He stated he was injured and had blood in his mouth. He stated that he received treatment at a local clinic, but he did not report the assault to the police because the BJP were in power and he thought that no one would listen to him.

6. The applicant said that after that incident people used to follow him after he closed the shop at night, and on one occasion when he was going home, he was threatened with a knife that if he did not give them money, they would kill him. He stated that he did not go to the police because they were associated with the BJP and his father advised that they should just give them money.

7. In considering the credibility of the applicant’s claims to have been attacked, injured, had his shop ransacked and to have been threatened with a knife by BJP supporters who wanted to stop him assisting his father and who demanded money, the Tribunal takes into account the applicant’s statement that he did not report any of these incidents to police. In his written statement, the applicant states he did not go to police for assistance because he had been warned not to and because it was hard to obtain protection from police against BJP supporters. At hearing the applicant told the Tribunal he believed the police would not assist him because the BJP were in power.

8. The Tribunal has considered the credibility of this claim in light of DFAT information above put to the applicant, which, in the assessment of the Tribunal, indicates that while India’s police force has inadequacies, including an element of corruption and under-resourcing, it is a functioning police force. While the independent DFAT information indicates that registration, investigation and prosecution of cases may be affected by bias in relation to the class, caste, ethnicity and religion of a victim or offender, there is no independent or credible evidence before the Tribunal that the state would fail to provide or deny the applicant the same degree of protection as that accorded to any of its nationals because he is a low-level Congress Party supporter and the perpetrators were BJP supporters. In response, the applicant reiterated that he had not approached police. On the basis of the country information before it, the Tribunal considers it difficult to believe that the applicant would not have reported any of these incidents to police if they had occurred as claimed.

9. In considering the applicant’s claims to have been the subject of violence, harassment and intimidation from BJP supporters, the Tribunal has also assessed independent country information above put to the applicant, which indicates that while the risk of political violence between rival supporters increased during parliamentary and state elections, especially in states where results are tightly contested, in general, elections are conducted peacefully. The Tribunal further assesses that the information indicates that a person of the profile of the applicant, a low-level supporter of the Congress Party with an association through his father, who was actively involved in Congress Party activities at a local level, does not face a risk of harm from authorities, supporters of the BJP or any other political parties. On this basis, the Tribunal holds serious doubts about the credibility of the applicant’s claims to have been harmed by BJP supporters.

10. Although the Tribunal invited the applicant to provide details of further incidents a number of times at hearing, he did not mention his written claim that BJP members went to his residence and assaulted his wife, threatened his parents and took all their valuables. The Tribunal considers this is a significant omission because the Tribunal would expect this event, which is significant to his claims, to be at the forefront of his mind. The applicant’s failure to mention this incident leads the Tribunal to hold doubts about the credibility of his evidence generally.

11. At hearing, the applicant stated that he was depressed before coming to Australia because he was worried about his security, so he does not have good recollection of events before he came to Australia. When the Tribunal enquired further, he stated that he had not consulted with anyone about his depression in India or since coming to Australia, and that he does not now feel depressed because he feels safe. The Tribunal has considered whether depression may have influenced his recollection of events about an assault on his wife, threats to his parents and theft at his home and notes that he was able to provide specific background information about his activities such as the nature of his business, without difficulty. For this reason, the Tribunal is satisfied the applicant’s oral evidence at hearing was not affected by poor recollection because he was depressed.

12. At hearing, the applicant stated that BJP supporters continued making harassing visits to the shop after 2009. When the Tribunal observed that this evidence was inconsistent with evidence he provided to the Departmental delegate at his interview where, as set out in the delegate’s decision record provided to the Tribunal by the applicant, he stated that nothing had happened between 2009 and his departure in 2016, he agreed that no incidents occurred in that period. However, he stated that no incidents occurred because he stopped going to the shop and ran away to Rajasthan. He stated that although he ran away from Gujarat to Rajasthan, “they” even came to Rajasthan to find him. The Tribunal commented that, according to the Departmental decision record provided to the Tribunal by the applicant, he said at interview that he continued to go into the business “sneakily” to see accounts, and sometimes he went to the village and sometimes stayed at the homes of friends. At hearing, he explained these comments by saying he did not mention running away to Rajasthan because he was not going interstate permanently but hiding in different villages with relatives and then returning to the shop and to take stock. The Tribunal has considered the applicant’s reasons for the shifting nature of his claims but would expect that, had he gone into hiding in Rajasthan but been found there by BJP supporters, he would have mentioned this in his written statement and his interview with the delegate. This raised serious doubts for the Tribunal about the credibility of the applicant’s claims.

13. The Tribunal has accepted above that the applicant is a low-level supporter of the Congress Party and the Tribunal is satisfied that on return to India, he will continue to support this party at a similar level. The applicant told the Tribunal that in future, “they” will not spare him. In response to the Tribunal’s observation that the country information did not support a finding that he would be of adverse interest to BJP members or any other party, he said he would be of interest because of his father. The Tribunal enquired why his father, who as accepted above was active in local Congress activities in Ahmedabad, but according to the evidence of the applicant has now retired to the village, would be of interest to the BJP or anyone else. The applicant had no response except to say that once they decide to finish you, they will. The Tribunal was not satisfied that this response provided a plausible explanation for the applicant’s claim.

14. The Tribunal has considered these issues cumulatively. Taken together, the Tribunal considers they significantly undermine the credibility of the applicant’s claims that he and his family have been the subject of violence, harassment and intimidation by BJP members because he was a low-level supporter of the Congress party and provided his politically more active father with some ideas and advice about local Congress activities. On this basis, the Tribunal is not satisfied the applicant was the subject of violence, harassment and intimidation at the hands of BJP supporters. The Tribunal does not accept the applicant’s shop was ransacked in 2009 or that he was assaulted because he refused to donate money. The Tribunal does not accept the applicant was approached to join the BJP and that his refusal resulted in threats on his life. The Tribunal does not accept the applicant was forced to secretly donate funds to the BJP. The Tribunal does not accept they went to his home and assaulted his wife, threatened his family and took all their valuables to extort money from him. The Tribunal does not accept the applicant’s business suffered because he was not supervising it but staying home most days because the attack on him had caused lasting mental and psychological damage. The Tribunal does not accept he left India to avoid the possible kidnap of “his son”. The Tribunal does not accept the applicant has been traumatised by his situation in India or that he came to Australia to seek protection from BJP mobs.   

15. In considering the applicant’s claim to have a risk of harm from BJP supporters on return to India, the Tribunal has considered his claim that his risk of harm from BJP members has increased since his arrival in Australia, because the BJP has strengthened in power, being now in government at both the state level in Gujarat and also centrally, and that he fears being killed if he returns to India. The Tribunal accepts that since the applicant’s arrival in Australia, the BJP has expanded its power in State and national elections.[5] However, the Tribunal has considered the DFAT country information above put to the applicant at hearing and concludes that supporters, members or leaders of the Congress Party or other parties who do not support the BJP are not being made targets of BJP members or anyone else. The Tribunal is satisfied the applicant does not face a real chance of serious harm or a real risk of significant harm from BJP members or anyone else on return to India.   

    [5] DFAT Country Information Report India, 10 December 2020.

16. The applicant stated that he had no other reason to fear return to India.

17. The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively.  For the reasons set out above, the Tribunal does not accept that if the applicant returns to India now or in the foreseeable future, there is a real chance he will face serious harm amounting to persecution for the reason of his political opinion (actual or imputed) or for any other reason, in his home area of Gujarat or anywhere in India. The Tribunal finds the applicant does not have a well-founded fear of persecution.

18. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

19. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). For the above reasons, the Tribunal is not satisfied that the applicant’s circumstances give rise to a real risk that he will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or that would meet the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty.

20. Accordingly, the Tribunal is not satisfied that 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.

21. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

    CONCLUSION

22. For the reasons given above, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. 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

23. The Tribunal affirms the decision not to grant the applicants protection visas.

    Amanda Paxton
    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.

    …