2017468 (Refugee)

[2022] AATA 2664

2017468 (Refugee) [2022] AATA 2664 (26 June 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  2017468

COUNTRY OF REFERENCE:             India

MEMBER:Dr Jason Harkess

DATE:26 June 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Permanent Protection (Class XA) (Subclass 866) visa for reconsideration with a direction that the First Applicant meets the criteria contained in section 36(2)(aa) of the Migration Act 1958 (Cth).

Statement made on 26 June 2022 at 9:35am

CATCHWORDS
REFUGEE – protection visa – India – political opinion – membership and activity of opposition political party – beatings and threats by supporters of ruling party and police inaction – relocation – applicant’s party now in power and antagonists now members – personal hostility – credibility – witnesses of truth – no well-founded fear of persecution under refugee criterion – real risk of significant harm under complementary protection criteria – member of family unit – country information – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA(2), 5H(1)(a), 5J(4)(b), (5), 36(2)(a), (aa), (2A)(e), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth (1999) 197 CLR 510
MIAC v Khadgi (2010) 190 FCR 248
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Sun v MIBP [2016] FCAFC 52
SZLPN v MIAC [2010] FCA 202
SZNRZ v MIAC [2010] FCA 107

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

INTRODUCTION AND OVERVIEW

Application for Review – Refusal of Protection Visas

1. The Applicants are citizens of India. They seek review of decisions made by a delegate of the Minister for Immigration and Border Protection (‘the Minister’) refusing to grant them protection visas. The First Applicant is [Age] years of age. The Second Applicant is [Age] years of age and is the spouse of the First Applicant. The Applicants presently reside in Victoria, Australia.

2. The Applicants originally applied for the protection visas on 4 December 2018. The visas were refused on 1 December 2020. The Applicants lodged their review application with the Tribunal on 4 December 2020. In these circumstances, the Tribunal has jurisdiction to conduct a review in relation to the delegate’s decision refusing the Applicants their visas.[1]

   [1] The relevant statutory provisions conferring jurisdiction on the Tribunal to conduct a review in this case are set out in Division 2 of Part 7 of the Migration Act 1958 (Cth). There is no issue arising as to those requirements not being met in this case.

Type of Visa

1. The specific type of visa the Applicants applied for is classified under the Migration Regulations 1994 (Cth) (‘the Regulations’) as a Permanent Protection (Class XA) (Subclass 866) visa.[2] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Migration Act 1958 (Cth) (‘the Act’). If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.

   [2] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611.

Applicable Criteria

1. The criteria for the grant of a protection visa are set out in s 36 of the Act and Sch 2 of the Regulations. An applicant must establish that they are a non-citizen in Australia, and either:

   (a)they are a ‘refugee’ (‘the refugee criterion’);[3]

   (b)they otherwise qualify for complementary protection (‘the complementary protection criterion’);[4] or

   (c)they are a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (‘family member criterion’).[5]

   [3] Migration Act 1994 (Cth), s 36(2)(a).

   [4] Migration Act 1994 (Cth), s 36(2)(aa).

   [5] Migration Act 1994 (Cth), s 36(2)(b), (c).

2. A person is a ‘refugee’, and therefore meets the refugee criterion, if the person ‘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.’[6]

   [6] Migration Act 1994 (Cth), s 5H(1)(a). Because the Tribunal is satisfied that the Applicants are citizens of India, the s 5H(1)(b) definition of ‘refugee’ (which applies only to ‘stateless’ applicants) is not applicable in this case.

3. A person meets the complementary protection criterion if there are ‘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.’[7]

   [7] Migration Act 1994 (Cth), s 36(2)(aa).

Delegate's Reasons for Visa Refusal

1. In his original application form lodged with the Department of Immigration and Border Protection (‘the Department’), the First Applicant sought a protection visa claiming that he met the refugee criterion or the complementary protection criterion. The Second Applicant’s claims were derivative of the First Applicant’s claims (she did not make separate claims). The delegate was not satisfied that the First Applicant met either criteria. Accordingly, the delegate refused both visa applications.

2. The delegate’s reasons are set out in a decision record. A copy of that record was provided to the Applicants, they were notified of the delegate’s decision. That notification prompted the Applicants to lodge the present review application. The Applicants also provided a copy of the delegate’s decision record to the Tribunal following lodgement of the review application.

Issues for Determination by Tribunal

1. The following issues arise for determination by the Tribunal in relation to the present review application:

   (a)whether the First Applicant meets the refugee criterion;

   (b)whether the First Applicant alternatively meets the complementary protection criterion.

2. The Second Applicant seeks a protection visa as a member of the same family unit as the First Applicant. She has not made any specific claims of her own.

Hearing of Application

1. The Tribunal convened a hearing to consider the merits of the review application by video (MS Teams) on 13 August and 14 September 2021. The First Applicant participated at the hearing on both occasions before the Tribunal and gave evidence and presented arguments. The Tribunal also received evidence from the First Applicant’s father [by] phone on 14 September 2021.

2. The Tribunal hearing was conducted with the assistance of an interpreter in the Kannada and English languages.

Tribunal’s Determination

1. The Tribunal has concluded that the decisions to refuse the Applicants a protection visas ought to be remitted for reconsideration in this case, for the reasons which are set out below. In reaching its decision, the Tribunal has had regard to:

   (a)the Applicants' original written visa applications;

   (b)the delegate’s decision record;

   (c)the written material filed by the Applicant in relation to their case, whether that material was lodged with the Department or with the Tribunal;

   (d)the oral evidence and arguments presented at the hearing;

   (e)the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs;[8]

   (f)country information assessments relating to India that have been prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes.[9]

   [8] These are mandatory considerations as prescribed by Ministerial Direction No 84, a direction made under s 499 of the Act (‘Direction No 84’).

   [9] These are also mandatory considerations under Direction No 84.

2. The Tribunal notes that not all the evidence and material that has been placed before it has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference only to that information that the Tribunal has been found to be material to the determination of the issues in the case.[10]

CONSIDERATION OF APPLICANT’S CASE

[10] The Tribunal notes that it is not required to make explicit reference every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.

Original Protection Visa Application

1. The Applicants were obliged to complete a form when they lodged their protection visa applications. The form requested that they provide details about their personal background, their circumstances leading up to their arrival in Australia, and their reasons for applying for a protection visa. In this case, it is the First Applicant’s background that is pertinent, as the Second Applicant seeks protection only as a member of the same family unit as the First Applicant. She has not made specific claims of her own.

First Applicant’s Background

1. The First Applicant stated that he comes from [Karnataka], India. He stated that he is a citizen of India by birth. A copy of his passport, which he provided to the Department, corroborated this claim. He further said that he does not hold citizenship of any other country.

2. The First Applicant further stated that he is married to the Second Applicant, and that they reside together in Australia. The First Applicant stated that he belongs to the Indian ethnic group, is Hindu in terms of faith, and is able to speak, read and write Kannada.

3. The First Applicant arrived in Australia [in] September 2018, having been granted a Subclass 600 (Tourist) visa which was set to expire on 15 December 2018. He applied for a protection visa on 4 December 2018, which was just before the expiry of his Subclass 600 (Tourist) visa. He has not departed Australia since the protection visa application was made.

Protection Claims

1. The First Applicant’s original claims for protection are to be found in answers to questions in his protection visa application form. The relevant questions posed in the form, and the First Applicant’s answers given, are reproduced verbatim (spelling, grammatical and expressional errors included):

   Is this applicant making their own claims for protection?

   Yes

   Select the country or countries from which this applicant is seeking protection and cannot return to.

   Country AUSTRALIA

Provide reasons why this applicant left that country or those countries:

Because I am supporter of Bharatiya Janata Party. But the state government has been formed by Congress and JDS. I am scared to be killed by the activist of congress party and JDS party. There was incident that they told me to join the congress party but I refused to accept. So, that they got angry and start to harrash me and family.

Did this applicant experience harm in that country or those countries?

Yes

Give details including:

•    the type of harm this applicant experienced

•    the person/people responsible for the harm

•    why they harmed this applicant.

The Congress and JDS state government misused their police administration to harash me and family along with the activist of congress and JDS party. They can harm me if I go back to my home country.

Did this applicant seek help within the country or those countries after the harm?

Yes

Give details including:

•    the name of the person/organisation/authorities this applicant asked for help

•    what help they provided, if they helped

Police administration but no response and no action against the congress and JDS party

Did this applicant move, or try to move, to another part of that country or those countries to seek safety?

Yes

Give details including:

•    where this applicant tried to move

•    why this applicant was unable to move

•    where this applicant moved to and what happened.

I tried to move to other states. But it was very hard to survive due to language and financial problems.

Explain what the applicant thinks will happen to them if they return to that country or those countries:
If I go back to my home country I am scared that the activist of Congress and JDS party will kill me.

Does this applicant think they will be harmed or mistreated if they return to that country or countries?

Yes

Give details including:

•  the type of harm or mistreatment this applicant is likely to experience

•  the person/people who would be responsible for the harm or mistreatment

•  why they would harm or mistreat this applicant.

It is definate that the activist of Congress Party and JDS party will harm or mistreat me. Because, I am a supporter of BJP.

Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?

No

Give details about why this applicant thinks the authorities could not, or would not, protect them.

aaaaaaaaaaaaaaaa

Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?

No

Give details about why this applicant is unable to relocate.

Federal government doesn't have relocating program so I can not be able to go back.

1. The First Applicant provided the following further documentation in support of the claims contained in his original protection visa application:

(a)Passport of [the first applicant].

(b)Passport of [the second applicant].

1. The First Applicant and Second Applicant were interviewed by a delegate of the Minister on 8 August 2019 that these claims could be further explored. The delegate summarised the following aspects of the First Applicant’s claims made during that interview in the delegate’s decision record, which included:

   (a)The First Applicant claimed at interview that he supported the BJP since 2010, and he claimed that he was involved in organising gatherings, and canvassing door to door.

   (b)Whilst the First Applicant claims to have some eight years of involvement in activities with the BJP in Karnataka state, the delegate noted that at interview the First Applicant could not accurately recall the timing of the last two (legislative assembly) elections in his home state, appearing to instead be attempting to provide (imprecise) dates for the (National) general elections in India. After the First Applicant incorrectly suggested that the last legislative assembly elections were held in Karnataka state in April 2019, on maybe 11th or 13th, it was put to the First Applicant that information suggested the last legislative assembly elections were held in May 2018, and he then referred to coming to Australia in 2018, and that he guessed that the election was in 2019.

   (c)When questioned further about the previous election, the First Applicant suggested that these elections were held in 2014, in April or May, when information suggests the preceding election in Karnataka was held in May 2013.

   (d)The delegate noted that the First Applicant provided no documentation or images in support of his claimed eight years of involvement with the BJP in Karnataka, indicating at interview that he does not have any.

   (e)When questioned about his past problems, the First Applicant claimed that 4-5 months prior to the elections in 2014, in late 2013, he was told to support Congress and they said they would kill him if he did not join. He subsequently referred to fights between his group and their group, but his account of such events was vague, suggesting it was before the 2014 elections, during and after.

   (f)The First Applicant also claimed that people came to his home in 2017 and threatened to kill him, but was unable to further recall on which date or in which month this occurred.

Claims before Tribunal

1. At the hearing before the Tribunal, the First Applicant gave evidence concerning his claims for protection that was generally consistent with his original claims as contained in his protection visa application form. The most significant aspects of this evidence are summarised as follows:

   (a)The First Applicant stated that he came to Australia because he had some ‘issues and conflict in India’. He said he chose Australia, rather than another country, because he believed Australia was safe and would provide a good quality of life for him. -

   (b)The First Applicant confirmed that he remains married to the Second Applicant and that they continue to reside with one another in Australia.

   (c)The First Applicant reiterated that he was an active political supporter of the BJP. He detailed his role and responsibilities as a member of the BJP, which included going door-to-door on behalf of the party and assisting with the distribution of stationery to children. He said that he did this on a voluntary basis.

   (d)The First Applicant explained how he was first introduced to the BJP in 2009 and how he initially liked it. He said he was drawn to the party because he had seen good community outcomes generated by the party in the town in which he lived, such as the construction of roads.

   (e)He said that, when he joined the BJP party, it was not in power. He said the Congress Party was in power in the area in which he lived. The First Applicant said that he had to deal with political conflict on a personal level at the inception of his joining the BJP. He said that there were youth members of the Congress Party who would pressure him to join the Congress Party. He said that there were arguments between the youth members of each party. He said that he was beaten up ‘badly’ and threatened many times. He said he was beaten upon in 2013, and that he was otherwise threatened every couple of months.

   (f)The First Applicant said that he tried to move to Tirupati, a city in a neighbouring state. However, he said that he continued to receive threats and did not know how those who threatened him became aware of his new location. He said he was only in Tirupati for 20 days in 2015 or 2016 before they became aware of where he had moved to and threatened him.

   (g)The First Applicant said that he considered going to police but that he received advice from acquaintances that the ruling party controlled the police and so it would not be wise to do so, and so the First Applicant changed his mind about making a formal complaint.

   (h)They First Applicant also said that they threatened to harm his family. When the Tribunal aske the First Applicant whether they had threatened his wife, the Second Applicant, he said, ‘they threatened to kill me off and fish off me and my family’.

   (i)The First Applicant said that the last time he was beaten up was after his wedding. He said that he was so badly beaten that that he had bruises on his hands and legs and the back of his head had to be sutured.

   (j)The First Applicant told the Tribunal that he would love to go back home. He said that the BJP is now in power and the people who had attacked him have now become part of the BJP. When the Tribunal queried as to why those who had attacked him would continue to do so, given that they are now both supports of the BJP, he said that ‘personal grievances continue to exist’. He said that if he returns to India now, it will still be problematic for him. He named the particular persons as ‘[Mr B]’, ‘[Mr C]’ and ‘[Mr D]’. He said that these three men do a lot of work for the BJP party now and that they have a grievance with him. He said that his family in India tell him that, even though he is now in Australia, these men continue to visit the family home inquiring of the whereabouts of the First Applicant.

   (k)The First Applicant stated that he fears for his safety if he were to return to India.

2. The Tribunal also received evidence from [the first applicant’s father], by phone on 14 September 2021. He currently resides in India. Although he had limited knowledge of the circumstances of the relationship between the First Applicant and those who he claims to have harmed and threatened him, [the first applicant’s father] essentially corroborated the evidence of the First Applicant as to men continuing to visit the family harm and threatening to harm his son. [The first applicant’s father] believed that the threats stemmed from his son’s involvement in the BJP.

Country Information

1. The Department of Foreign Affairs and Trade (‘DFAT’) most recently published an information report about India on 10 December 2020 (‘the DFAT report’).[11] It includes the following information:

   [11] Department of Foreign Affairs and Trade, DFAT Country Information Report: India (10 December 2020).

   Corruption

   2.28       India is a party to the United Nations Convention Against Corruption. The landslide victory of the BJP in 2014 was attributed among other factors to a strong focus on rooting out corruption. The Indian government’s aim with demonetisation of the Indian economy in 2016 was to remove corruption and curb the circulation of ‘black money’ in the Indian economy. However, reports on the effectiveness of demonetisation to meet its stated objectives have been mixed. Some critics argue demonetisation affected the rural and informal cash-based economy more than other sectors. In 2018, parliament passed the Prevention of Corruption (Amendment) Act, which is the major legislative tool covering corruption offences.

   2.29       Prime Minister Modi has publicly expressed a zero tolerance policy for corruption in government and punitive action has been taken against bureaucrats in departments such as revenue, income tax and customs. Mainstream media and opposition parties, however, have criticised a perceived lack of commitment to take action on high-profile alleged graft cases.

   2.30       GAN Integrity’s India Corruption Report claims corrupt practices such as facilitation payments and bribes persist in India, with corruption particularly prevalent in the judiciary, police, public services and public procurement sectors. The World Justice Project Rule of Law (WJP ROL) Index 2020 measured the rule of law based on a range of factors, including absence of corruption. Factors considered included bribery, improper influence by public or private interests, and misappropriation of public funds or other resources across the executive, judiciary, military, police and legislature (see also Police and Judiciary). In 2020, India ranked 85 out of 128 countries on the index for absence of corruption in government. Within this category, the report found the legislature the most corrupt, followed by the police/military and executive branch. The judiciary was perceived to be the least corrupt. Since 2014, India has consistently ranked low on the WJP ROL indices measuring absence of corruption across government. Similarly, India ranked 80 out of 198 countries on Transparency International’s Corruption Index, 2019 (down from 78th place in 2018).

   2.31       The presence of corruption in India can lead to high levels of cynicism about new government initiatives and makes anti-corruption a common electoral theme. Access to justice, particularly dealing with Police, is a common complaint, although people’s experience varies greatly from state to state and within states. DFAT assesses corruption remains a part of daily life across India, with facilitation payments and bribes common, particularly at the local level.

   …

   POLITICAL SYSTEM

   2.52       India is a federal republic with 28 states and 8 union territories, controlled by the central government. It is a parliamentary democracy, which operates under its 1950 constitution. The federal parliament is a bicameral system with an upper house (the Rajya Sabha) and a lower house (the Lok Sabha).

   2.53       The Lok Sabha has 543 members, plus two members of the Anglo-Indian community nominated by the President. Of the 543 representing the states and union territories, 79 seats are reserved for SCs and 40 for STs. Members are elected on a first-past-the-post system in single-member constituencies, every five years or less, based on universal suffrage.

   2.54       The Rajya Sabha has up to 250 members, 12 of whom are presidential appointments, with the remaining members elected indirectly by the assemblies of the states and union territories for a six-year term, with one-third retiring every two years. Legislation may be introduced in either house, but the Lok Sabha has the final say in financial matters. The Prime Minister is elected by the members of the Lok Sabha and then appoints and heads-up the Council of Ministers. An electoral college consisting of members of the federal parliament and state assemblies elects the President for five years. The President of India has formal executive power over the central government but acts on the advice of ministers.

   2.55       According to the Election Commission of India, India has more than 1,600 registered political parties (including eight national parties and 47 state-recognised parties), representing diverse political, ethnic and religious interests. Most of these parties have a regional focus and do not stand candidates nationwide. This diversity of representation means broad coalitions are often required to form governments at the federal level. Electoral commission statistics recorded 8,251 candidates participating in the 2014 polls (latest available data).

   2.56       For much of the post-independence era, the Indian National Congress Party (Congress) was in power. However, the Bharatiya Janata Party (BJP) led by Narendra Modi won 282 seats out of 543 elected seats in the 2014 general election, the first time a single party obtained a parliamentary majority since 1984. In May 2019, securing a second election victory, Modi became the first non-Congress prime minister in India to return to power after a full five-year term. Official data from the Election Commission showed Modi's BJP winning 303 of 543 seats (up from the 282 it had won in 2014). The BJP formed government along with its National Democratic Alliance (NDA) partners, with the alliance winning 352 seats in total. The opposition Congress party won 52 seats in 2019, after having been reduced to 44 seats in 2014, its lowest ever performance at an election. About 67 per cent of more than 900 million eligible voters voted in the staggered national elections that commenced on 11 April 2019 and were conducted over seven phases, with votes counted on 23 May 2019. Prime Minister Modi and his cabinet were sworn in on 30 May 2019 (see also Recent History).

   …

   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.

   5.10       In India, for the police to investigate a case and commence the criminal justice process, they must prepare a First Information Report (FIR). According to 2018 NCRB data, where and how a person reports a complaint can influence their access to justice: 99 per cent of complaints routed through a court were registered as FIRs; 72 per cent of written complaints to the officer-in-charge of the police station were converted into FIRs; 53 per cent of written complaints were converted into FIRs; and only 5 per cent of oral complaints (where the duty officer takes down the details) were converted into FIRs. Only 3 per cent of complaints filed online (a new initiative in some states including Delhi and Uttar Pradesh) and 1 per cent of complaints taken by Emergency Telephone lines were converted to FIRs in the same period.

   5.11       DFAT understands if a person of interest is being sought by another state, the states would work together in securing the arrest of that person. There is no state extradition requirement. DFAT understands state police do not have sophisticated online databases to track offenders; such work would be done manually. In general, there is a good degree of cooperation between state police services.

Analysis of Evidence and Factual Findings

Assessing Credibility of Claims – General Principles

1. When assessing claims, the Tribunal must make findings of fact in relation to those claims. In doing so, the Tribunal must assess whether the Applicant’s claims are credible. Credibility is to be assessed by having regard to the individual circumstances of the case and the evidence before the Tribunal.[12]

   [12] Department of Home Affairs, PAM 3: ‘Refugee Law Guidelines’, [15.3].

2. The Tribunal also recognises that applicants may be stressed as a result of being separated from home and family. They may also have difficulty in remembering details of events as a result of the passage of time. Cultural issues may affect the manner in which they answer questions. The nature of their claims, if genuine, may cause them some consternation in expressing their fears. Allowing for such considerations, if the Tribunal finds an applicant to be generally credible, they should be given the benefit of the doubt if they are unable to fully substantiate all of their claims.[13]

   [13] Ibid [15.4].

3. However, this only applies if the Tribunal is satisfied as to the Applicant’s general credibility in the case at hand.[14] An applicant is not entitled to have claims accepted simply because there is a possibility that they might be plausible.[15] While there is no legal concept of ‘onus of proof’ that is to be applied by the Tribunal, in the same way that such a concept is routinely applied in courts of law,[16] the Tribunal must nevertheless be satisfied that there is a reasonable evidentiary foundation that sustains an applicant’s claims. If there is no such foundation, the Tribunal is obliged to reject those claims.

   [14] SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107; UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (2019), [203]-[204].

   [15] SZLPN v Minister for Immigration and Citizenship [2010] FCA 202, [17].

   [16] Sun v MIBP [2016] FCAFC 52

4. Ultimately, it is for the applicant to satisfy the Tribunal that the statutory criteria for the grant of a protection visa are met. The Tribunal is not obliged to assist an applicant in establishing their case. Nor is the Tribunal required to accept uncritically any or all of their claims.[17] It is the responsibility of the applicant to specify all particulars of their claim and to provide sufficient evidence in support of it.[18]

Credibility of Applicant’s Claims in this Case

[17] MIEA v Guo (1997) 191 CLR 559, 596’ Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155, 169-70.

[18] Migration Act 1958 (Cth), s 5AAA(2).

1. In this case, the Tribunal has assessed both the First Applicant and his father as most likely being witnesses of truth. The First Applicant was generally very responsive and candid in his answers to questions put to him at the Tribunal hearing, as was his father. It is to be expected that First Applicant would be unable to recall every detail of the events and experiences he described given the passage of time. However, in the Tribunal’s view, the account given by the Applicant, and the way in which he answered some of the very specific questions raised by the Tribunal, could only have come from a person who had truly experienced those events. It seemed clear to the Tribunal that the First Applicant is genuinely fearful of returning to India as a result of the experiences he described.

2. Accordingly, the Tribunal is prepared to make the following findings that are critical to the First Applicant’s claims:

   (a)The First Applicant became actively involved in the BJP political party organisation in India from an early age.

   (b)As a result of his involvement with the BJP, the First Applicant developed hostile relationships with certain youth members of the rival Congress Party. This hostility eventually developed into threats of violence and actual violence suffered by the First Applicant at the hands of his political antagonists.

   (c)Notwithstanding the BJP acquiring power in government, and the First Applicant’s political antagonists changing political allegiances so as to be members of the same party as the First Applicant, the hostility directed towards the First Applicant by his antagonists remained. There was evidently a hatred of the First Applicant that was not political – it was personal.

   (d)The First Applicant would be at significant risk of personal harm from his antagonists if he were to return to India.

   (e)The political knowledge and connections of the First Applicant’s antagonists are such as to make moving to another part of India to escape the threat a reasonable solution.

   (f)The systemic problems in India associated with corruption and the inability of the police to act on threats of this nature means that state protection is not effective for the First Applicant.

Do the Applicants Meet the Refugee Criterion?

General Principles

1. Section 5H of the Act defines a refugee as a person who, in the case of a person who 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 return to avail himself or herself of the protection of that country.’[19]

   [19] Migration Act 1958 (Cth), s 5H(1)(a).

2. The term ‘persecution’ is not expressly defined in the Act. However, it is commonly understood as referring to ‘an injurious act’ and ‘[a] particular course or period of systematic violent oppression, esp. one directed against the members of a particular religious or political group, race, etc.’[20] Within the context of Australia’s relevant migration and refugee laws, the concept of persecution is limited by the operation of a number of statutory provisions found in the Act. These provisions essentially prescribe the approach that the Tribunal must take when considering whether an applicant has a ‘well-founded fear of persecution’ when assessing their claim of being a refugee. This includes a requirement that persecution must involve ‘serious harm’ to the person who is seeking protection.[21]

   [20] ‘persecution, n.’, OED Online (Oxford University Press, March 2021, Migration Act 1958 (Cth), s 5J(4)(b). Examples of serious harm are listed, non-exhaustively, in s 5J(5). They include: 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 likelihood of any kind, where the denial threatens the person’s capacity to subsist.

Determining whether a person has a well-founded fear of persecution involves making a risk assessment as to what is likely to happen in the future.[22] In this regard, conclusions about what has happened in the past may provide some assistance in working out what is likely to happen in the future.[23] In many cases, an applicant will be relying on their own past experiences as founding their claim for a protection visa. The logical starting point for the Tribunal in such cases is to determine whether the events happened as claimed and, if so, whether they constituted persecution.[24]

Does the First Applicant Have a Well-Founded Fear of Persecution?

[22] MIEA v Guo (1997) 191 CLR 559, 574.

[23] Ibid, 574-5: ‘The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.’

[24] See Abebe v The Commonwealth (1999) 197 CLR 510, [82] (per Gleeson CJ and McHugh J), [192] (per Gummow and Hayne JJ): ‘If a person has been persecuted in the past for a Convention reason, this history may ground an inference that the person subjectively fears repetition of persecution and an inference that this fear is well founded’.

1. In this case, although the Tribunal is satisfied that the First Applicant is at risk of serious harm if he were to return to India, it is not satisfied that this would be for reasons of persecution. Rather, the risk of harm arises out of the personal hatred of the First Applicant by his antagonists that is essential private in nature. Accordingly, the Tribunal is not satisfied that the First Applicant has a well-founded fear of persecution if he were to return to her home country. He does not meet the refugee criterion.

Does the Applicant Meet the Complementary Protection Criterion?

General Principles

1. A person will meet the complementary protection criterion if they are a non-citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations because the Tribunal 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 [they] will suffer significant harm’.[25]

   [25] Migration Act 1958 (Cth), s 36(2)(aa).

2. Section 36(2A) provides that a person will suffer ‘significant harm’ if:

   (a)they will be arbitrarily deprived of their life;[26] or

   (b)the death penalty will be carried out on them;[27] or

   (c)they will be subjected to torture;[28] or

   (d)they will be subjected to cruel or inhuman treatment or punishment;[29] or

   (e)they will be subjected to degrading treatment or punishment.[30]

   [26] Migration Act 1958 (Cth), s 36(2A)(a).

   [27] Migration Act 1958 (Cth), s 36(2A)(b).

   [28] Migration Act 1958 (Cth), s 36(2A)(c). Torture is defined in s 5(1) as meaning 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 International Covenant on Civil and Political Rights (‘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.

   [29] Migration Act 1958 (Cth), s 36(2A)(d). Cruel or inhuman treatment or punishment is defined in s 5(1) as meaning 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. It 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.

   [30] Migration Act 1958 (Cth), s 36(2A)(e). Degrading treatment of punishment is defined in s 5(1) as meaning an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission.

3. A ‘real risk’ of significant harm otherwise involves the application of the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ when considering the refugee criterion.[31]

Is there a Real Risk of Significant Harm?

[31] Minister of Immigration and Citizenship v SZQRB [2013] FCAFC 33.

1. The Tribunal is satisfied that there are 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 First Applicant will suffer significant harm if he were to return to India, for the reasons that have been expressed in paragraph 30 above.

2. The Tribunal finds that the First Applicant meets the complementary protection criterion.

Summary

1. Although the Tribunal is not satisfied that the First Applicant meets the refugee criterion, it is satisfied he meets the complementary protection criterion. The Second Applicant may be eligible for a protection visa as a family member of the First Applicant.

DECISION

1. The Tribunal remits the application for a Permanent Protection (Class XA) (Subclass 866) visa for reconsideration with a direction that the First Applicant meets the criteria contained in section 36(2)(aa) of the Migration Act 1958 (Cth).

Dr Jason Harkess

Member