2018380 (Refugee)

[2024] AATA 3114

2018380 (Refugee) [2024] AATA 3114 (24 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Muhammad Chaudhry

CASE NUMBER:  2018380

COUNTRY OF REFERENCE:                   India

MEMBER:Rosa Gagliardi

DATE:24 April 2024

PLACE OF DECISION:  Australian Capital Territory

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

Statement made on 24 April 2024 at 12:26pm

CATCHWORDS
REFUGEE – protection visa – India – business association – business licence – attack by business rival – underworld connection – political connection of rivals – death – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 56, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155 at 169 70
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547

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 on 10 December 2020 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of India (a matter the Tribunal accepts) applied for the visas on 5 December 2019.

3. The delegate refused to grant the visas on the basis that the decision-maker in the first instance was not satisfied that the applicants were refugees as defined by s.5H of the Act and was therefore not satisfied that the applicants are persons in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of that Act.  The delegate was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to India, there is a real risk they will suffer significant harm as defined in s.36(2)(aa) of the Act.

4. The applicants appeared before the Tribunal on 27 March 2024 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

5. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

   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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the applicants have a well-founded fear of persecution for reasons set out in s.5J of the Act, and there is a real chance that if the applicants were returned to India now or in the reasonably foreseeable future, they would be persecuted for one of those reasons.  In the alternative, the Tribunal is required to assess whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to India there is a real risk that they will suffer significant harm.

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    NB: for ease of reference the Tribunal may use the term “the applicant” to refer to the “first-named visa applicant” throughout the decision.

    Claims at the time of application

14. In the application for protection, the first-named visa applicant wrote:

    I have fear for my life and for my wife (second-named visa applicant) and my family members.  Local underworld goon [Mr A] has threatened me and tried to kill me in India.  Please check police reports and statement for more explanation (identification of wife as second-named visa applicant is a Tribunal insertion).

15. The applicant claims he experienced harm in his country.  Asked to provide details of such harm and those responsible for the harm, the applicant answered:

    i was beaten up and wounded by [Mr A] and his gang.  [Mr A] is local underworld goon of my area.  He threatened me and my family many times. He has harassed me mentally.  i live in fear in India. please check police reports and statement for more explanation.  

16. The applicant stated he had sought help in his country and:

    I have contacted many times with local police offices and politicians. but no one gave me protection from [Mr A] and his gang because of his political connections with corrupt police officers and politicians. no one is giving me assurance of my and my wifes safety in India upon our return as [Mr A] is threatening me again and again.  Please check police reports and statement for more explanation.

17. Asked if he had moved to another area in his country the applicant wrote that he had.  Asked to provide details he answered, “I have tried to move to different districts but still because of [Mr A] connections with police and politicians, I was never safe anywhere in other places.  Please check police reports and statement for more explanation”. 

18. The applicant was asked whether he will be harmed or mistreated if he returns to India and he answered, “yes”.  His application form also invited him to provide details about the type of harm or mistreatment he was likely to experience, the people who would perpetrate the harm, and why they would harm or mistreat the applicant.  The first-named visa applicant responded:

    [Mr A] has threatened to kill me and my wife upon my return to India. police is not giving me assurance for my safety because of his connections with corrupt police officers and politicians. I fear that I would be killed in India. please check police reports and statement for more explanation.

19. The first-named visa applicant stated that he did not think the authorities of his country would protect him and when asked to give details about why, he wrote, “[Mr A] is underworld goon and has connections with corrupt police officers and politicians. so police never gave me support and they will not care for me and my wife safety.  Please check police reports and statements for more explanation”. 

20. The applicant also stated that he did not think he could relocate within India as:

    i won’t be safe anywhere in my country because [Mr A] has connections all over India.  he is connected with big political party of India and has connections with corrupt police officers.  he will kill me and my family members anywhere in India.  please check police reports and statement for more explanation.

21. Accompanying the applicant’s application was a statement, unsigned and undated stating that the first-named visa applicant and his wife came to Australia on a Visitor visa and that before he came here:

    I was running my own business in Haryana state on India in xxxx.  I used to be a business associate of [Mr B] who resides in Village xxx.  He was a well known [product] contractor of xxx.  Another [product] contractor of same area [Mr C](of village xxx) was into same business and was business competitor of [Mr B].

    [Mr C]had a dispute with [Mr B] regarding the possession of [product] shop in xxx in 2012.  That dispute led to a big fight.  [Mr C] had connections with underworld and he had employed [Mr A] of same district.  [Mr A] was a big goon of our area and was wanted for many criminal activities.

    During their dispute in September 2013, [Mr A] and [Mr C] wounded [Mr B].  [Mr C] had great political influence and that is why local police did nothing because of pressure and corruption.  I was with [Mr B] at that time.  I was also hit by their gang members but I survived luckily.  I went to local police station to file a complaint but no one charged other group.

    We went to media and many local police officials and politicians, and with their pressure, police filed weak case against [Mr A] and arrested him.  [Mr C] in May 2014, again attached (sic – attacked?) [Mr B].  I escaped narrowly during that altercation.  I was on their Hitlist as I was friend and business partner with [Mr B].  They have threatened to eliminate me and my family members.

    Meanwhile, [Mr C] got liver infection and died.  They wrongfully charged [Mr B] with their political pressure for his death.  Meanwhile [Mr A] got his bail and came out of jail and started harassing me and my family.

    Next year, [Mr C]’s wife and [Mr B] compromised to solve their dispute mutually.  [Mr A] was not happy with this compromise and being a hardcore criminal, he wanted to have revenge. 

    Mid 2015, when [Mr B] was going to his village in his car, he was attached (sic) by [Mr A] in evening.  [Mr A] along with his two accomplices shot [Mr B] in his arm.  He even threatened to kill me as I was very close to [Mr B].  [Mr B] was admitted to a hospital in xxx.

    After coming out on bail, [Mr A] never went back to jail and voided all his bail conditions and was declared a proclaimed offender by Haryana Police but due to his connections with corrupt police officials and local politicians, he was never arrested and he even tried to attack me few times.  I reported it to local police stations many times but no one filed a report because of his connections with a big political party in India.  I was living in fear as he directly and indirectly used to threaten me and my family.

    On 29/07/2018, [Mr A] went to [Mr B]’s village and killed his brother [Mr D] aka [deleted] and ran away (Police FIR report attached).  He even threatened me.  I reported it many times to local police station but no one cared and never provided me protection due to political pressure.

    On 17/01/2019, [Mr A] attacked brother-in-law of [Mr B] … who was our business associate also (Police FIR attached).  I was again lucky as I was not with them on that day.  [Mr A] along with another criminal [Mr E] killed him on [a] highway [near] xxx.  [Mr A] again ran away and is still on the run.  Corrupt police officials do not want to do anything against him because he is connected with major political party of India and works for local politicians.  He pays bribes to local corrupt police officers.  Local residents of my home town are scared of him because of his criminal activities like threatening, extortion, drugs and weapons sale.  I was constantly living in fear and have been threatened many times afterwards by [Mr A] and [Mr E]. 

    [Mr A] is still operating his underworld activities and has been threatening my family members.  [Mr A] came to my village and threatened my parents while I am in Australia.  He had send messages to my village that he will kill me and my wife once we land down on Delhi Airport.  I am very scared for my life and for my wife.

    He is openly telling people in my village that he will kill me and my wife upon our return to India.  I am scared for my life and do not want to go back as he would kill me immediately upon my return.   I have contacted many police officials but no one is giving me assurance because of his political connections with the government officials and big Political party.  [Mr A]’s connection with big political party is widely known that is why local officials fear to do anything against him.  He is being used by big politicians to get their illegal work done…

    Evidence at the time of application

22. At the time of application, the applicant submitted two First Information Reports (police reports used to launch investigations).  One of the FIRs is claimed to refer to the assassination of the brother of [Mr B], [Mr D].  The other it is claimed relates to the death of his brother-in-law in the same manner, [Mr F] aka [Mr F alias].  At the time of application, the Department noted that these documents were not originals and had not been translated. 

23. As part of the Department’s efforts to elicit further information from the applicants it wrote to them on 28 December 2020 pursuant to section 56 of the Migration Act inviting them to put forward additional information and to provide clarification regarding certain unclear matters. The s.56 letter advised the applicants that their statement of claims lacked substantiating details such as dates, locations and supporting documentation. The letter also encouraged the applicants to provide evidence of their business partnership with [Mr B] and [Mr F] ([Mr F alias]), explanation about how their [Industry 1] business was related to their [product] business, explanation about being a target of constant threats from [Mr A] despite having no direct conflict with him, copies of the original FIRs with official English translations in relation to the death of [Mr D] and [Mr F] (Tribunal emphasis) and an explanation about political influence and corruption by police. 

24. In response to the s.56 letter the applicants wrote to the Department on 24 November 2020, stating that they were trying to arrange the requested documents and had asked their lawyer in India to arrange them. Their lawyer told them, however, that due to COVID-19 restrictions in India and another wave of the virus, administration was slow as the courts and police stations were not at full capacity. The applicants requested an additional 28 days to provide the information requested. At the time of writing its decision on 10 December 2020, the applicants had not provided further information.

    Evidence at hearing

25. The applicant stated he came to Australia on a Tourist visa in September 2019 with his spouse, the second-named visa applicant.  The Tribunal asked the applicant what he intended to do here.  He stated nothing as he wanted to be removed from there and wanted to do some of his business.

26. The Tribunal noted that the applicant took 3 months to lodge a protection visa and asked why that was the case.  The applicant stated because he initially had no interest in applying for a protection visa.  It was his intention to return once the circumstances were ok.  He had no plan to stay here but the circumstances never got better, so he had to give up on returning home.  The applicant stated that his son [lived] in India as did his parents.  Asked if the applicant had ever returned to India since his arrival in Australia, the applicant stated yes, he had returned in August 2023.  The applicant stated he went by himself without his wife.

27. The Tribunal asked how long the applicant had stayed in India for, he responded for one month.  Asked what he had done there he stated that his father had a brain haemorrhage and was paralysed.  His father was still in bed and his son had a nose problem, so he was forced to return to India.  His son’s nose bone was a bit extended, and he had difficulty breathing.  The applicant stated he had documentary proof of these events and the Tribunal noted that it would accept that these were the reasons the applicant returned to India in August 2023.

28. The applicant stated that his son was looked after by his mother.  Apart from the nose difficulty his son was fine.  He was taking medication.  Because of his schooling he could not have the requisite surgery and the applicant stated that he might need to return to India when that occurred.  It might take 6 months or so for the surgery to happen.

29. The Tribunal asked the applicant whether he was a religious person and he stated he was a strong adherent of Hinduism.  The Tribunal noted that the applicant had not sworn on his Holy Book.  The applicant replied that he thought the Tribunal was going to give its own Holy Book for him to swear on, and he thought why would he swear on someone else’s religion.  The Tribunal noted that in any event it was not of moment.

30. The Tribunal asked what work the applicant did in India.  He stated that when he finished college, he joined a partnership with an elder person.  This person had a well-established business, so he thought why not go into partnership given the profit was good.  The Tribunal noted that it had thought the applicant was in the [Industry 1].  He replied that he would get onto that – it was a separate business.  That would come after.  The Tribunal asked whether he had a business in partnership as claimed. He referred to the partnership deed he had submitted as evidence.

31. The [product] business was in Haryana.  It had been established since 2010 but he entered the partnership with [Mr B] in 2012.  The Tribunal asked whether he had to pay anything to enter the partnership.  The applicant stated it was obvious when you were in partnership with someone.  Asked how much he had to pay the applicant responded it was about 10-12,000,000 (Rupees?).  The Tribunal asked whether the applicant had reviewed the books and thought the business was financially viable.  The applicant responded it was going very well.  The Tribunal asked why [Mr B] would want the applicant to share his profits if he was doing well on his own in business.  The applicant stated that was how business works in India.  Everyone had associates who were friends.  A person would prefer to have all the [product] shops in the city and if they did not have much money, they would like their family or friends to join the businesses. 

1. According to the applicant all was going well, and then another businessman [Mr C]opened another [product] shop.  The Tribunal noted that it did not seem to make business sense to open another shop selling the same goods in a small village, as there would not seem to be enough demand.  The applicant responded why did the Tribunal think that it was a small village.  There were 20 shops there.  The Tribunal referred to the applicant’s statement in which he set out that the events happened in a village.  The applicant stated that [Mr C]was doing business in a different village and then came to the applicant’s village at the end of 2012, some seven months after the applicant had started in partnership with [Mr B].

2. The Tribunal asked the applicant to provide details of the characteristics of [Mr C], for example, how old he was.  The applicant stated he was not sure but possibly [age] plus.  He was married and had a child.  The Tribunal encouraged the applicant to tell the Tribunal what happened.  He stated in India the police services were really bad and what you would think would happen did not happen.  [Mr C]was politically connected.  He was sort of a goon.   The Tribunal asked whether if it referred to the internet there would be evidence of this character [Mr C].  The applicant replied there was not a strong presence at that time such that it would be on the net.  The Tribunal asked whether [Mr C]was involved in politics and the applicant responded it was more about connections he had.  People had links to other Ministers, MLAs, or the Prime Minister but [Mr C]was not a politician. 

3. The Tribunal prompted the applicant to continue his narrative.  The applicant stated that [Mr C] found out they were earning good money and wanted to take over the business and to extract money from them.  The applicant stated that [Mr C] had a goon with him named [Mr A].  It was not exactly extortion he stated.  The Tribunal asked the applicant to clarify, and he replied basically he wanted to snatch their business ideas.  He added, there were tenders for [product] businesses and he was trying to snatch those. Firstly, he took over two shops and then tried to take over other shops using goons.  Asked if [Mr C] paid for those tenders the applicant responded he had political links, so he wanted to use those links to spoil their business.  The Tribunal asked the applicant again to clarify how exactly [Mr C] was trying to spoil his business.  The applicant stated that no one fears the law and if someone sees that a business is doing well, anyone could open the same business and shut down other businesses and nobody could go to other shops.  His idea was that all the shops in the area should belong to him.

4. The Tribunal asked who [Mr C]’s political connections were exactly.  He stated there was no one single person from upper level to the lower level, so who could he name?  The Tribunal asked whether [Mr C] had an affiliation with any particular party or member of Parliament.  The applicant responded [an official] of Haryana was [name deleted] and [Mr C] had relations with him.  There was another person [named] (unclear).  And there was another person the applicant named.  [Mr C]had more money and more power and was known to more people.  They had less money and less power. 

5. The applicant stated that [Mr C] started damaging their business by reducing his prices and trying to lure customers into his shop.  He had lots of money so he could easily reduce the prices so that “they” (the applicant and [Mr B]) were not able to remain in business.  They considered they should talk to [Mr C] directly.  They wanted to have a chat, but he started swearing and abusing them.  Someone from [Mr C]’s side had a verbal fight with his partner [Mr B].  While verbally abusing [Mr B] it escalated into physical abuse and [Mr B] was badly injured.  The Tribunal asked how [Mr B] had been injured.  The applicant stated he (presumably [Mr C] or an associate) had a baseball bat, and his arms and legs were broken, and he was in hospital.   The applicant confirmed [Mr B] was still alive.  The Tribunal asked whether it could ring him.  The applicant said the Tribunal could do that and the Tribunal stated it would consider that later.

6. The applicant stated it took 3 to 4 months for [Mr B] to recover.  The Tribunal asked how the applicant was able to run the [product] business without him.  The applicant responded that while he was in bed, he already had his stuff in the shop and the applicant knew where to get supplies.  The applicant stated that [Mr B]’s brother [Mr D], was there as well as his brother-in-law [Mr F alias].  The Tribunal asked whether there were any consequences for the physical harm that [Mr C] had caused [Mr B] through his associate.  The applicant responded, no there was nothing like that. The scuffles continued.  The Tribunal asked whether the applicant himself had been injured and he stated he had.  Asked where, he stated on his leg and foot and on his head.  The Tribunal asked whether he had seen a doctor about any injuries and he responded he did.  The Tribunal asked whether he had medical evidence of such.  The applicant stated they were local doctors and he had nothing broken, and they did not keep good records there.  Moreover, it had been a long time now and he did not know that someone in Australia would ask him for such records. 

7. The Tribunal asked what he might have been hit with.  The applicant stated it was just like when someone is fighting, and a stick is hit on your head.  The Tribunal asked how many people had hit him.  He said there would have been 10 to 15 people.  The applicant stated that they just said close your business or we will kill you.  Other people were killed.  [Mr C] was murdered also.  The Tribunal asked who murdered [Mr C].  He stated that the fights continued, and he got liver cancer.  When [Mr B] got better in three to four months, [Mr B] thought he would take revenge.  The applicant was not there but one time [Mr B] had his brother and brother-in-law and others, and they went to his shop and started hitting [Mr C], more on his abdomen and after being hit on his liver side by sticks, [Mr C]’s liver had problems.  The applicant then clarified [Mr C] had Hepatitis B not cancer.  He did not initially know the difference.

8. After that [Mr C] was taken to hospital and due to his injuries and because of his illness he died.  The applicant stated that the medical report mentioned he died of Hepatitis B not due to his injuries.  The Tribunal asked the applicant when [Mr B] had had his arms and legs broken did the applicant tell the police and he said yes, they informed the police.  There were many other people besides him, and they all made 10-15 calls, but no one turned up.  Then they brought the police to the scene and saw that someone was badly beaten and produced an FIR.  [Mr C] was not personally arrested – he got someone arrested as a culprit in his place being, [Mr A], [Mr C]’s goon. 

9. The Tribunal asked whether the applicant had submitted the FIR relating to the injuries of [Mr B] and the applicant stated yes, he had.  The Tribunal asked whether there was a specific FIR into the incident involving [Mr B] having had his arms and legs broken.  The applicant stated that there should be.  The representative pointed out that FIR [number] refers to [Mr B] being severely beaten. 

10. The Tribunal noted that there was a lot of critical writing attached to the FIRs, but it was not translated.  Some documents, instead, had been translated but the translations did not appear to be official ones.  It was unclear who had done the translating.  The Tribunal noted that the documents were not well put together to assist the Tribunal refer to the evidence in a meaningful way. The representative standing in for the applicant’s representative who was not able to attend that day, undertook to ask her colleague to have the documents translated.  The Tribunal stated that it could not rely on documents that were not fully translated by a person with an official capacity as a translator. 

11. The Tribunal asked the applicant again whether the applicant had submitted the FIR (no. [number]) regarding the assault on [Mr B] to the police and he stated no, he was not involved.  The police registered the case. 

12. The Tribunal noted from the little English in the FIR [number], there was no mention of the applicant.  The applicant responded that he had not done anything to warrant a mention. The Tribunal noted that the applicant claimed he feared for his life, but [Mr B] who had more reason to be concerned as he was [Mr C]’s murderer, was still alive. The Tribunal asked why the applicant was more frightened than [Mr B] who appeared to be still living in India.  The applicant responded, his brother and brother-in-law were murdered.  The applicant stated that [Mr B] was in Australia as he had come on a Tourist visa two years after the applicant and did not come earlier because he had been in jail.  When his brother and brother-in-law were murdered, he fought with [Mr A] and his family, and had to go to jail as he had taken revenge.

13. The Tribunal asked whether the applicant was in contact with [Mr B], and he stated he had been, but now his phone was switched off.  He was not sure whether he was still in Australia, or he had gone back to India.  The applicant stated he could try to get the number from his family, but the Tribunal had concerns that if [Mr B] did give evidence, it would not be spontaneous as his family might have been able to advise [Mr B] why the Tribunal was calling him.

14. The Tribunal noted the court case reported on [date] July 2015, there were six persons nominated as the accused in relation to [Mr C]’s alleged murder. the Tribunal noted, however, that the applicant had not been mentioned.  The applicant stated that he was only friends with [Mr B] he was not involved in the fights.  The applicant reasoned that even [Mr B]’s brother and brother-in-law were not directly involved, but they were still murdered and he could be too.

15. Reading the court documents aloud the Tribunal noted that the six accused appeared to have been armed with deadly weapons, and the applicant replied that [Mr C] and his group had been armed with deadly weapons also.   The accused were restraining [Mr H] (the complainant).  The Tribunal asked why the accused threatened and restrained him. The applicant stated he was with [Mr C].  The Tribunal stated it had gone through the court reporting but there had been no mention that the applicant had been involved in the fatal confrontation with [Mr C].  The applicant stated he was not the one who intended to kill [Mr C].  The Tribunal observed that there was little to indicate that the applicant had any connection with the murder of [Mr C].  The applicant stated that was the issue.  If the Tribunal could not understand the situation, how could it understand the whole scenario involving [Mr B]’s brother and brother-in-law who were also murdered.

16. The applicant stated that he and others were friends with [Mr B] and supported him.    The applicant stated that the goon, [Mr A], murdered everyone supporting [Mr B] in any way, and by implication the applicant could be murdered also.

17. The Tribunal advised that it had before it the partnership deed for being in business with a certain [Mr B], but that it had been signed [in] March 2017, and did not appear to indicate that the applicant had been in business with [Mr B] since 2012.  The applicant responded that in 2012 no written documents were required and then there was a rule change, and everyone had to register their business.  The Tribunal noted that it appeared from the applicant’s testimony that [Mr B] would have been in prison in 2017, so how was the applicant able to run the business on his own.  The applicant stated that is the missing piece.  His family and others looked after the business while [Mr B]  was in jail.  The Tribunal asked the applicant whether he had death certificates for [Mr B]’s relatives ([Mr D] – brother, and [Mr F alias] – brother-in-law) to support his claims they were murdered by [Mr A], and he stated he would provide these to the Tribunal.  In any event, the Tribunal noted [Mr D] and [Mr F alias] were close relatives of [Mr B] and therefore were more at risk for a revenge attack.  The applicant stated that he too was a distant relative of [Mr B] as he was like an uncle. 

18. The Tribunal noted that the deed submitted indicated that the business was a going concern and that [Mr C], and his associates had not been involved in destroying the business he held in partnership with [Mr B].  The applicant stated that the deed would not mention these things. 

19. The Tribunal asked who was arrested for murdering [Mr C].  The applicant stated that the medical reason for his death was Hepatitis D.  The people involved in the murder, including [Mr B], were blamed for his injuries but later there was a compromise with [Mr C].  The Tribunal asked why a compromise was reached and the applicant responded that [Mr A] was in a relationship with [Mr C]’s wife.  The applicant stated that the main story started now.  The Tribunal noted that even if [Mr A] was in a relationship with [Mr C]’s wife, he was [Mr C]’s goon so why would they let [Mr B] and his associates avoid punishment for [Mr C]’s murder.  The Tribunal also noted that the applicant had claimed that [Mr C] had political connections so why would he together with [Mr C]’s wife not seek justice for [Mr C].    The applicant stated that was the reason he was here today.  Why would he leave his family in India otherwise. 

20. The applicant stated when [Mr B] was arrested, he was in jail and [Mr A] was also in jail at that time as he had been arrested for a different matter.  The Tribunal reiterated that [Mr B] and his associates appeared to have killed someone with political connections so why did the court allow the compromise without ensuring [Mr B]  and his associates were punished.  The applicant stated they had done the compromise but said they would kill [Mr B] with their bare hands - that is how they operate.  The Tribunal asked how long [Mr B] and his co-accused remained in jail for and the applicant stated, 10-11 months.  The Tribunal observed that the court documents stated that the six accused were all acquitted and that they were innocent of the murder of [Mr C]. The applicant stated that was the compromise.  If you say the other person is innocent, they will be released.  He asked how a simple person could fight with the court.  The Tribunal noted that [Mr B] did not appear to serve any time for killing [Mr C].  The applicant reiterated that his wife had entered a compromise with them. 

21. The applicant confirmed that [Mr A] was still alive and had fights with many people.  The Tribunal asked whether [Mr A] had ever threatened his family and the applicant responded, when I came here, he made sure he placed his family really far away from Haryana.  The Tribunal asked why the applicant could also not go and live far from Haryana if he was in danger, where he too would be safe.  The applicant stated that he was [Mr A]’s enemy, and he knew that if he hurt the applicant’s family, the applicant would hurt his family. 

22. The Tribunal queried how the applicant’s [Industry 1] business fitted into his narrative.  The applicant stated that when these fights and murders happened in the [product] business he started work in [Industry 1] because he had to make a living.  The Tribunal noted that the Department decision clearly states he had claimed there was a connection between [Industry 1] and [product] businesses.  The applicant stated [Mr B] had nothing to do with the [Industry 1] business.

23. The Tribunal noted that the applicant stated that the real story started now, and asked him to tell the Tribunal about that story.  The applicant stated that when [Mr C] died [Mr B] and [Mr A] were involved in a compromise.  But then [Mr A] made [Mr B]’s brother and his brother-in-law targets.  The applicant was a target as well.  One day they were returning to their homes from work when [Mr B] was going to his place and the applicant to his, and on the way, [Mr A] used a pistol and shot at [Mr B]’s shoulder who was injured and taken to hospital and treated.  He had had many people follow them.

24. One day [Mr A] took a stolen vehicle and had a bandanna on his face and killed [Mr B]’s brother.  But he was keeping a watch on the applicant even though the applicant was travelling to different places for his work, but he was getting threats through different people and making his life hard.  It was even harder to make a police complaint because the applicant was worried [Mr A] might kill him.  In January 2019 [Mr F alias] (the applicant’s brother-in-law) was murdered.  And then he was called from an unknown number and told the next one (to be targeted) would be the applicant and then in August/September he came to Australia. 

25. The Tribunal noted that the applicant had claimed that he had gone to the media and was there reporting of the events claimed and did he have evidence of that.  The applicant stated, yes but it was really hard to get the information.  Asked who he went to the media with, the applicant stated he sent someone.  The Tribunal noted that in his statement he had referred to going to the media and police and local politicians.  The applicant stated he could get the evidence and the Tribunal encouraged him to work with his migration agent to do so.

26. The Tribunal asked whether when he returned to India in August 2023 anything had happened to him.  The applicant stated he did not tell anyone he was going back. His parents were away from Haryana, and he met them there and came back.  The applicant stated that he had found out that [Mr A] had a big gang now, and he was the one who murdered a [deleted].  Even [Mr B] had sent his family to [another country].  The applicant stated that [Mr B] might have gone there too. 

27. The Tribunal noted that court documents showed that [Mr C]’s murder went to trial in 2015 by that stage the applicant would have known that [Mr A] was very angry because [Mr B] killed [Mr C], his friend.  The Tribunal asked if the applicant knew that [Mr A] was in a murderous mood, why he did not escape immediately but waited instead for several years before coming to Australia.  The applicant stated that at that time [Mr A] wanted to take revenge on [Mr B].  Then he hurt a few other people and the applicant got a phone call saying that his number was next. 

    The second-named visa applicant’s evidence

28. The Tribunal asked the second-named visa applicant why she feared returning to India.  She stated that her husband’s life was in danger, and they would only go back together.  The Tribunal asked whether her husband ever had [an Industry 1] business, and she stated he did, in 2017/2018.  The Tribunal asked how he could run [an Industry 1 business] as well as a [product] business.  The second-named visa applicant stated that first, he started the [product] business and then the [Industry 1] business.  Both businesses were going well. 

29. The Tribunal noted that the applicant claimed he feared for his life and encouraged the second-named visa applicant to explain why.  The second-named visa applicant stated that the [product] business had some issues.  The Tribunal asked what these issues were precisely, and she stated, “I don’t know much. There was something wrong with the business, so I don’t know much”.  The Tribunal asked whether she thought she was in danger if they returned to India.  The second-named visa applicant replied she could not say, only that if her husband was in danger then her whole family, including her husband’s family, could be. Her parents-in law and son were still in India.  The Tribunal asked as husband and wife, did they not discuss matters that affected them.  The second-named visa applicant stated she was a housewife and there was not enough time to talk about “outside things”.  She added that the first-named visa applicant came home late, and she was up early, and they only discussed family issues.  The second-named visa applicant stated she only knew that her husband’s partner [Mr B] shot [Mr C], but she did not know anything much. 

1. The first-named visa applicant then stated that his wife was currently pregnant, and he did not want to trouble her with everything and that is why she knew little. 

2. The Tribunal gave the applicants additional time to have documents translated and to provide any further submissions by their representative.  At the time of writing this decision, the critical FIRs were not translated into English and no further submissions were made. Nor was an extension of time sought.

   Evidence submitted to the Tribunal prior to hearing

   ·FIR (Number unclear) - [date] July 2013 providing a name for the complainant as [deleted], stating that the details of the suspects were “unknown young boys”.  No authorised translation was provided for this document.  It appears the occurrence occurred in Karnal District.

   ·FIR [number] – Year 2014 Annexing “Accused Details” in a language other than English; a purported translation of FIR [number] registered at Police Station [location], Karnal, Haryana which is not officially translated.  It is typed on an A4 piece of paper without any indication that a registered or other translator (no seal) had provided the translation.

   ·FIR [deleted] – [date] August 2016 attaching English translation that is not accompanied by evidence of it having been translated by an accredited or otherwise translator, and the author of the document is unknown.

   ·FIR [deleted] – [date] July 2018 with unofficial translation of the accompanying statement to the FIR.  There is no seal indicating who the author of the so-called translation is. 

   ·FIR [deleted] – [date] August 2018 with no translation of the accompanying statement and the Tribunal cannot make out who the protagonists of the FIR are. 

   ·A typed statement from [Mr G], dated 17 December 2020, stating that he is the Sarpanch (leader) of the village and that the applicant was a business associate of [Mr B] who was currently running the [product] contract of the area as “he has been awarded the license to run the [product] shop by the Government of Haryana”.  [Mr G] states that [Mr A] and [Mr E] are local gangsters who harass local businessmen in the village and threaten and extort money in surrounding areas and “are said to work for political leaders”.  The statement continues to set out that [Mr A] and [Mr E] have killed business associates of [Mr B] in the past due to differences in allotment of [product] licenses and have threatened the applicant and his family “many times openly stating that they will kill [the applicant] and his wife if they ever return to India”.  [Mr G] also states that the local police is unable to apprehend them or take any action against [Mr A] and [Mr E] because of political pressure and that police complaints were filed against them.

   ·Document relating to FIR [number] in the court of Karnal, State of Haryana with a decision of [date] July 2015, attaching a copy of the FIR listing the complainant as [Mr H] (no translation).  The court document is, however, certified. The case is between the State of Haryana and [Mr B] and 5 others, listing the 6 as “the accused”.  The court record states that the six accused were charged on [date] October 2014, in [location] as being part of members of an unlawful assembly being armed with deadly weapons like Darant, iron rods, lathes and dandas and that they restrained [Mr H] by showing him deadly weapons and threatened his life and also restrained [name deleted] by catching hold of him and ultimately caused injuries to [Mr C]which resulted in his death. 

3. The Tribunal considers it worthwhile reproducing an extensive extract given it helps to establish the facts of this case. 

   Prosecutions case has its base on statement xxx [Mr H]… [Mr H] had stated to the police that he is a [product] vendor.  He and [Mr C]…had share in the [product] vend.  [In] July 2013 in connection with the matter of [product] trade; [Mr B  son of xxx…[Mr A] resident of xxx…had inflicted injuries to [Mr B] and accordingly case FIR No.[deleted] dated [date] July 2013 was registered with Police Station – [location] and in that FIR [Mr C]…was arrested…and he was released on bail after spending six months in jail.  On [date].4.2014, at about 4.30pm [Mr C]had come to him (complainant) and was sleeping on the wooden cot at the [product] vend.  At that time, [name deleted]…was present in the vend.  In the meantime, a white colour [vehicle] came from which [Mr B]…[Mr D] alias [deleted]…along with six other boys had alighted.  [Mr B] was armed with iron Darant, [Mr D]…was armed with pistol…Immediately on alighting [Mr D] had pointed pistol at him (complainant) and told to catch hold [Mr C]and he should not go escape.  Thereafter, 2-3 boys had caught hold [name deleted] and [Mr B], [Mr D alias] and 3-4 boys entered in the [product] vend and started causing injuries to [Mr C], while he was sleeping.  [Mr B] inflicted injury at the left side of [Mr C]by using Darant and 3-4 boys inflicted injuries to [Mr C]with dands/bindas.  [Mr C]had sustained injuries at his feet, legs stomach, arms, wrist etc.  The boys who had caught hold [name deleted]raised cries of [deleted], when he was released and many people started gathering.  The accused fled away on the [vehicle] along with their respective weapons by extending threats of dire consequences to kill them, on getting opportunity.  However, [Mr C]succumbed to the injuries suffered by him…Investigation commenced.  Inquest proceedings were conducted.  Post mortem examination was conducted on the dead body of [Mr C]on [date].10.2014.  The accused facing trial were arrested.  The weapons were recovered…

4. The court record also states that the complainant, [Mr H], then testified during court proceedings that the accused had never caused any injury to [Mr C](his uncle) and that all the accused were innocent.  During his cross-examination he was confronted with his previous statement, and he stated that no such statement was made by him.  He had identified his signature but volunteered that the contents were obtained by the police on a blank paper.  He also gave evidence that he had not stated before the police that on [date] October 2014, [Mr C]was sleeping in the [product] shop and that [name deleted] was also there, or that the accused [Mr B] and [Mr D] with six boys came in a [car].  He also denied he had stated that [Mr B] had a Dao in his hand and [Mr D] a pistol.  The court document states that [Mr H] denied the suggestion that he had compromised the matter with the accused outside the court as he was resiling from his previous statement.  [Name deleted] also testified that nothing had happened in his presence, and that the accused in court were not known to him.  In terms of his written depositions, he stated that the same were obtained on a blank piece of paper upon which the recovery memo had been converted.  In other words, the witnesses, including the complainant, denied the contents of their statements and what they claimed they had seen due to some arrangement entered outside the court with the accused.

5. Another witness also denied knowing anything about the case and was declared hostile and gave similar explanations for his previous depositions.  He too had denied he compromised the matter with the accused outside the court, and as such was resiling from his statements. 

6. A fourth witness[testified] that he too knew nothing about the case. He stated he did not know the accused present in court and did not know their names.  He too resiled from previous signed police statements. 

7. The prosecution then found that since the material witnesses did not support the prosecution’s case, it was futile to examine other witnesses.  Even though the prosecution contended that the charges against the six accused had been proven beyond a shadow of a doubt, the defendant’s counsel argued that since the material witnesses did not support the prosecution’s case, all six accused should be acquitted.

8. The presiding judge found that after analysing the competing contentions he was not of the view that the charges against the six accused had been established beyond a shadow of doubt, because legally it was the statement of the witnesses in the dock on oath that carried more weight than their written statements and the accused were accordingly acquitted. 

   ·A further undated and unsigned statement purporting to be by the first-named visa applicant in English reiterating his claims arguing that [Mr C]and his goon friend [Mr A] often trespassed into their area to sell illegal [product], and this led to many altercations, “often leading to multiple injuries to both sides”.  On one occasion [Mr B] slapped [Mr A] who threatened to take revenge.  They tried to kill [Mr B] in 2013 without success and the matter was reported to the police (FIR [deleted]).  [Mr A] was able to escape the law, according to the first-named visa applicant, and had been on the run ever since.  In hiding he threatened the applicant and [Mr B] stating that he would kill them.  In 2014 [Mr C] was murdered at a [product] shop and the blame for the for the act “was falsely put on [Mr B]”.  The applicant claims that since [Mr B] was completely innocent, he was acquitted, however, [Mr C]’s son openly threatened [Mr B] in court and stated that he would kill him with the assistance of [Mr A].  In 2016 [Mr A] and [Mr E] tried to kill the applicant and [Mr B] but once more their attempt was unsuccessful and both victims narrowly escaped.  FIR [deleted] was filed in relation to this matter, but [Mr A] was never arrested because the local political parties of his village favoured him.  The applicant claims that [Mr A] is on their payroll. 

   In 2017 the applicant writes that he and [Mr B] were once again awarded a contract to run a [product] vending business and again [Mr A] started threatening them, not only over the phone but also over [social media].  In 2018 [Mr D] the brother of [Mr B] was murdered by [Mr A] and FIR no [deleted] of 2018 was registered with the police and it was clearly stated that [Mr A] was involved in the offence. During the same period, the applicant claims, “he” ([Mr A]?) continued threatening the applicant saying that he had settled the score with [Mr D], and next it would be the turn of the applicant unless he ceased his business with [Mr B]. 

   The applicant went on to write that he had complained to the police on numerous occasions throughout 2017 and 2018 to no avail because political support for [Mr A] was immense.  In January 2019 [Mr F alias] (brother-in-law of [Mr B]) was murdered by [Mr A] in relation to the same [product] business and had been threatened by [Mr A] to sell his business.  These same threats were made to the applicant.  The applicant further wrote that even after he fled India, threats were being made against him and his wife by the culprits.

   ·A forensic report in relation to the crime scene ([date] July 2018) relating to the death of [Mr D], [Mr B]’s brother, stating, among other things, that he was shot dead by several persons with weapons.

   ·A copy of a “non-judicial” deed of partnership between [Mr B] and the applicant executed [in] March 2017, and associated rent agreement.

   FINDINGS AND REASONS

9. In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)

10. In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.

11. On the other hand, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

12. The documents the Tribunal can rely on because they are in English, and because they have an official quality to them include the court report - –[deleted].  It is stamped with a seal of the judge.  It follows that the Tribunal accepts that the events set out in the document are historical ones that occurred.  The Tribunal therefore accepts that:

    ·   on [date] October 2014, a person called [Mr B] and 5 associates and co-accused injured a person called [Mr C]which allegedly led or contributed to [Mr C]’s death.

    ·   a person called [Mr A] resident of village-[named] had inflicted injuries to [Mr B] and a FIR was registered.

    ·   the witnesses entered into a deal with the complainants outside the court which led to [Mr B] and his co-defendants being acquitted of murder.

13. The Tribunal has also had regard to the Forensic report, dated [date] July 2018, which refers to FIR No: [deleted], and outlining that [Mr D] ([Mr B]’s brother) was shot dead by several persons with armed weapons.  The Tribunal also accepts this to be an official document on which the Tribunal can rely, and as such also accepts that [Mr D] may have been killed by [Mr C]’s goons, including [Mr A], in revenge for the murder of [Mr C], although the report does not refer to the perpetrators of the act.  While there is no such probative evidence, the Tribunal is also prepared to accept that [Mr B]’s brother-in-law [Mr F alias] was murdered in the same manner.

14. The Tribunal does have, however, significant doubts about the claims that the applicant is on [Mr A]’s hit list and is next to be killed on account of the applicant being a friend and business associate of [Mr B].  The link claimed between the applicant and [Mr B] on the evidence before the Tribunal is extremely tenuous, if non-existent. 

15. The applicant is relying on the “Partnership Deed” obtained from a Notary stating that the applicant went into partnership with [Mr B] [in] March 2017.  The Tribunal notes that the document has been signed by the applicant and [Mr B] in front of several witnesses.  The Tribunal has had regard to this document and its associated rental agreement, but as put to the applicant at hearing the applicant claimed that he entered [Mr B]’s established business in 2012, and the document submitted refers to a partnership entered into in March 2017.  The applicant explained this away by stating that in India in 2012 businesses did not need to be registered formally, but the Tribunal has doubts that this could have been the case.  Of itself this anomaly might not have been significant such as to render the document unreliable as supporting evidence of the applicant’s claimed connection with [Mr B] as his business partner, but together with other concerns held by the Tribunal, the Tribunal considers the notary documents are not probative of the applicant have been a business associate of [Mr B].  Nor do the documents refer to [Mr F alias] who the applicant claims was also involved in the business.

16. Other concerns held by the Tribunal about these documents which are claimed to underpin the applicant’s claim of having a connection to [Mr B], are that notary documents can be obtained for a fee without a notary confirming that to their knowledge and via documentary examination of primary documents, the contents of the notarised documents are genuine and true.  For example, the notary Deed of Partnership has not been issued by the Indian equivalent of the Chamber of Commerce and Industry or some other such government body overseeing the regulation of businesses and licensing.  Nor has the applicant provided evidence of holding a [product] licence.

17. In these circumstances, the Tribunal is unable to place favourable weight on the documents obtained from a notary to indicate that the applicant and [Mr B] were ever business partners, and that therefore he is a target of [Mr A] for having supported [Mr B] in his conflicts with [Mr C]and [Mr A] [Mr A] and together with other reasons set out in this decision rejects that the first-named visa applicant was ever associated with [Mr B] as a business other associate who is in danger of being killed by [Mr B]’s nemesis, [Mr A].

18. The applicant also stated that due to COVID-19 when the Department made its decision, he could not access all the relevant documentation.  At the time of review, the applicant has submitted additional FIRs but these are also not translated and the Tribunal cannot therefore be satisfied that the applicant was ever involved in the events involving [Mr C], [Mr A] and [Mr B].

19. In addition, the Tribunal notes that the applicant has resisted obtaining translations of the FIRs which it is argued contain critical information about the events the applicant claims occurred, even though the Tribunal highlighted at hearing that the applicants did not appear to be the subject of any of these documents.  There may be reasons why the applicant has not provided translations for them, one of them being, granted, the cost of doing so.  Nonetheless, the applicant has been represented in his matter and if they were of critical importance in supporting his case, the Tribunal does not see why the representative would not have encouraged the applicant to have the FIRs he claims are central to his claims officially translated.

20. Even if the Tribunal were to accept that the lay translations accurately reflect events involving [Mr C], [Mr A], [Mr B], [Mr D] [Mr A] and [Mr F alias], they do not in any way indicate that the applicant was a protagonist in their narrative concerning their feuds over [product] licensing or any other matter.  This is even though the applicant has claimed that police reports would show he had a well-founded fear of persecution as indicated in his application.  The Tribunal finds that the applicant has not established his claims that he was ever an associate of [Mr B] or [Mr F alias] and therefore his claims that he will be targeted on return to India on account of his friendship with [Mr B] in supporting him during the trial of [Mr C]’s murder and his co-accused, fall away.

21. The applicant’s credibility is also undermined because at hearing he could only speak in general terms about [Mr C]’s and [Mr A]’s so called political connections stating that they were MLA’s, for example, but could not provide realistic detail about these persons and how they were influential in their community.  Indeed, all the events surrounding the core of the claims the Tribunal has accepted as being historical ones and for which there is no evidence that the applicants were a part of, the applicant struggled at hearing to provide expansive detail that would demonstrate that other than what he had determined from [Mr B]’s and his associates’ court report, the applicant had a first-hand knowledge of. 

1. The Tribunal has accepted, for example, that [Mr B] and his co-accused entered a deal with the complainant to ensure his and his co-accused’s acquittal.  The Tribunal asked the applicant about this critical matter at hearing and the applicant stated that [Mr A] ([Mr C]’s goon) was in a relationship with [Mr C]’s wife.  This does not explain, however, what the heart of the deal was, particularly as it is claimed that [Mr A] continued to harbour a grudge against [Mr B] and then in 2018 went on to kill him.  The applicant’s explanation lacked cogency because the applicant was not able to provide the Tribunal with an explanation as to why [Mr A] who was [Mr C]’s goon and in a relationship with [Mr C]’s wife, would enter an arrangement that would mean [Mr C]’s killers would be acquitted.  The Tribunal does not accept this explanation and finds that the reason that the applicant was not able to provide a cogent explanation is because he was not familiar with the details of the criminal trial because he had never been in business with [Mr B] in vending [product].

2. The Tribunal accepts that the witnesses retracted their statements leading to their acquittal.  The Tribunal does not accept, however, that [Mr A]’s and [Mr C]’s wife’s relationship led to such a turn in events in criminal proceedings.  Instead, the Tribunal finds that the applicant could not provide a realistic response to the Tribunal’s questions because his unfamiliarity with the case is consistent with someone who has never been involved with any of the personages set out in the court documentation and the FIRs.

3. The Tribunal also has concerns about the applicant’s credibility that he was ever involved with [Mr B] and rejects such claims, as the Tribunal expressed confusion as to why the applicants would be targeted by [Mr A] now that [Mr C]was dead.  Afterall, [Mr C]’s and [Mr A]’s principal enemy was [Mr B].  The applicant gave non-specific answers about supporting [Mr B] during his trial even though there is no evidence of this.  The Tribunal also highlighted that it was entirely plausible that in avenging [Mr C]’s death, [Mr A] would target the family members/relatives of [Mr B] and [Mr B] himself but not necessarily a business associate.  The applicant himself had stated that he was not involved in [Mr C]’s murder and the court documents support this.  The applicant explained this away by stating that neither [Mr D] nor [Mr F alias] had been named in documents (FIRs) and yet they were targeted.  However, this reasoning does not follow as [Mr D] was involved in the attack on [Mr C] which led to the feud.

4. The applicant stated that actually he was a distant relative of [Mr B] in an attempt to escalate his claims, and the Tribunal rejects that this is the case.  Even if he had been a distant relative (and the Tribunal does not accept this) the Tribunal has rejected that the applicant ever had a business association or any association with [Mr B] [Mr A] and would find it is remote that the applicant and his family would be targeted by [Mr A] solely on the basis of being a distant relative of [Mr B], without any evidence of having become an enemy of [Mr C] or [Mr A].  The Tribunal has found no evidence of a link between the characters of [Mr B], [Mr C], [Mr A], [Mr F alias] and [Mr D] and the applicant.  The documentation does not support such a link.

5. The Tribunal considers that the applicant’s travel to India in 2023 and his intended travel to India when his son has surgery on his nose, belies his claims that he had an abiding and genuine fear of [Mr A] and his political associates or any persons in India for any reason, including for reasons of s.5J.  The Tribunal can accept that there may be extreme circumstances where one returns to a country of origin even though they fear being killed, such as a mercy dash for a dying spouse or child.  The applicant explained his travel as being for reasons of his father’s and son’s health. 

6. Given the gravity of the applicant’s claims that [Mr A] is targeting him and will deprive him of his life as occurred to [Mr B], his brother and his brother-in-law, the Tribunal does find it incongruous that the applicant should risk a month’s visit to India.  The applicant explained, without providing evidence, his parents and his child were living far from Haryana and that he had secured his parents’ and his son’s safety in another area of India, where they would not face harm. 

7. The applicant stated that he told no one that he was returning, not even his relatives, yet given the applicant claims [Mr A] had powerful friends in politics, it seems incongruous that had [Mr A] wanted to know the first-named visa applicant’s whereabouts, [Mr A] would not have been alerted through government agencies that the first-named visa applicant had made his way to India and to intercept him on return.  Having regard to the evidence before it, the Tribunal does not accept that the applicant was able to enter India and leave again without difficulty without coming to the attention of [Mr A] and his political connections, and finds instead that the applicant was of no interest to [Mr A] or anybody else at a political or other level, because the applicant had never been associated in a business, familial or other relationship with a person called [Mr B] who attacked [Mr C].

8. The evidence of the second-named visa applicant at hearing was also not convincing.  The Tribunal does not find it plausible that the first-named visa applicant had kept from his wife that she, their son, and he were in mortal danger because of [Mr A].  Her evidence did not reflect that her family, especially the first-named visa applicant, had undergone significant trauma from fear of [Mr C]and [Mr A] or any other person who intended to kill them.  The Tribunal would have expected that had the applicant been at risk together with his wife and child that the first-named visa applicant would have warned them for their safety and would have explained the reasons.  If the applicant had sustained injuries in the physical altercations as claimed, it would have been difficult to conceal these from his family and the Tribunal finds that the second-named visa applicant would have inquired about these.  The Tribunal finds that the reason the second-named visa applicant was unaware of her husband’s claimed troubles is because they never occurred.

9. At hearing the first-named visa applicant stated he had not wanted to cause fear to his newly pregnant wife and that is why he had not told her much about the events in India.  Nonetheless, this does not explain why the first-named visa applicant had not made arrangements to secure his nuclear family’s safety in India and to share with his wife that they were being targeted. 

10. The second-named visa applicant’s claims that she was a housewife, rarely saw her husband and they did not have time to talk about anything other than their family, seems implausible in the context of the severity of the applicant’s claims. 

11. The Tribunal has also had regard to the letter of support from [Mr G], who it is claimed is the Sarpanch of the village (leader).  The Tribunal notes that the document has a special adhesive indicating the document has, for a fee, been signed off on by a notary. Other than the official quality of the notary’s intervention in the document, it does not point to any official imprimatur of the village head.  The village head has signed the document but there is no indication the document was prepared in the course of his duties as leader of the village and the Tribunal has concerns about its value as probative evidence of a witness who had come to know of the applicants’ circumstances firsthand. 

12. The Tribunal has also considered the document purportedly written by [Mr B], regarding the death of his brother [Mr D] – a document that is unsigned and undated.  Even if the Tribunal did not have concerns about its provenance as it is simply typed without any authenticating features, such as identity photo or signature, the Tribunal finds that of itself it does not support the applicants’ claims that the first-named visa applicant was targeted by [Mr C]and [Mr A] for murder because of his association with [Mr B].  Indeed, the document does not refer to the applicant at all. 

13. A similar document has been submitted by Ram [Mr A] also undated and unsigned, stating that on 17 January 2019, [Mr A] came out from his vehicle with weapons and started shooting on his nephew [Mr F] – [Mr F alias].  Again, regardless of any concerns about the document’s provenance, it makes no reference to the applicant and any part he might have played in the feud.

14. The first-named visa applicant has also submitted an unsigned and undated document, but the Tribunal is prepared to accept that the applicant wrote this stating, among other things, that [Mr A] was able to act with impunity because of his political connections and did not face the law for his crimes.  The applicant also wrote that in 2018 or during that period, [Mr A] continued to threaten the applicant saying that having settled the score with [Mr D], the applicant was next unless he ceased his business with [Mr B].  The applicant also claims that he complained to the police numerous times through 2017 and 2018 to no avail, with little supporting evidence of this.

15. The Tribunal also considers the delay in leaving India by the applicants relevant as they continued to remain in India even at the height of the claimed disputes with [Mr C] and [Mr A].  Together with the delay in lodging a protection application after several months of arrival in Australia, these matters do not indicate that the applicant had a compelling and well-founded fear of suffering serious harm.  The applicant claimed that it was only after [Mr D] and [Mr F alias] were killed that he was motivated to lodge his protection visa application, but on any reading of the applicants’ claims he had stated that he was involved in numerous physical altercations with [Mr C], [Mr A] and their associates and as such this delay in securing their safety undermines their claims to have a well-founded fear of persecution.

16. Having considered the evidence individually and cumulatively, the Tribunal finds that the applicant has not established his claims that he was ever a target of [Mr C]and his associates, including [Mr A].  The Tribunal therefore does not accept that:

    ·       the applicant was ever a business, family or other associate of [Mr B] or that the applicant was involved in selling [product] in association or on his own.

    ·       the applicant was ever a business or other associate of [Mr F alias] ([Mr B]’s brother-in-law who was also involved in [Mr B]’s business).

    ·       the applicant was ever with [Mr B] at the time of a dispute between [Mr A] and [Mr C] in September 2013 in which [Mr B] was wounded.  This is because the Tribunal does not accept that the applicant was present at such an event.

    ·      during the September 2013 hit on [Mr B], the applicant was also hit by their gang members but luckily survived.  This is because the Tribunal does not accept that the applicant was present at such an event.

    ·      the applicant ever went to the media and the local police about he and [Mr B] being hit by [Mr A] and his associates. This is because the Tribunal does not accept that the applicant was present at such an event.

    ·      during an attack on [Mr B] in May 2014, the applicant narrowly escaped.  This is because the Tribunal does not accept that the applicant was present at such an event.

    ·      the applicant was on [Mr A]’s hit list on the basis of being a friend, business partner, and relative of [Mr B].

    ·      the applicant was ever beaten and wounded by [Mr A] and his associates.

    ·       the applicant was ever threatened over the phone and over [social media] by [Mr A] or his associates.

    ·      [Mr C]and his associates and [Mr A] have ever threatened to eliminate the applicant and his family members.

    ·      while [Mr A] was on bail, he started harassing the applicant’s family.

    ·       in mid-2015 while [Mr B] was going to his car and was attacked by [Mr A] and threatened to kill the applicant.  This is because the Tribunal does not accept that the applicant was present at such an event.

    ·       [Mr A] tried to attack the applicant a few times and the applicant reported it to police but no one filed a report because of his political connections.

    ·       the applicant was living in fear as he ([Mr A]) directly and indirectly used to threaten him and his family.

    ·       the applicant or his family members were ever followed or were being watched by [Mr A].

    ·       when [Mr A] went to [Mr B]’s village to kill his brother [Mr D], [Mr A] threatened the applicant, and he reported it to the police, but no one cared, and he was not provided protection.  This is because the Tribunal does not accept that the applicant was present at such an event.

    ·      after the murder of [Mr F alias], the applicant was constantly living in fear and was threatened many times by [Mr A] and [Mr E] who had murdered [Mr F alias].

    ·       [Mr A] is on the loose and continues to threaten his family members including his parents while the applicant is in Australia.

    ·       [Mr A] has sent messages to his village that he will kill him and his wife once they return.

17. The Tribunal does not accept, therefore, that the applicants have a well-founded fear of persecution on account of being targeted by persons with political affiliations or by the State or any other non-state actors for any reason under s.5J.  The Tribunal has found that the applicants are not embedded within the story of [Mr C], [Mr B], and [Mr A] because the evidence does not point to this being the case. 

18. For the reasons given above, the Tribunal is not satisfied that the first-named visa applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    The second-named visa applicant, her son, and unborn child

100.   The second-named visa applicant has stated she knows her husband had trouble as a result of [Mr B] but was unable to elaborate on what that difficulty might have been.  She also claimed that their family as a whole could face serious harm on return to India on account of such an association.  As the Tribunal has rejected that the first-named visa applicant was ever a business or other associate of [Mr B], the second-named visa applicant’s claims about fearing harm also fall away.

101.   For the reasons given above, the Tribunal is not satisfied that the second-named visa applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

1. 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.

   Complementary protection

2. 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).

104.   The Tribunal has also considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, there is a real risk that they will suffer significant harm.  The real risk test imposes the same standard as the real chance test applicable to the assessment of a well-founded fear of persecution.  The Tribunal having rejected the applicants’ claims that they were ever part of a feud involving [Mr C], [Mr A], and [Mr E] against [Mr B] or that the first-named visa applicant was ever an associate of any kind of [Mr B], the Tribunal finds that it is not satisfied that there are substantial grounds for believing that there is a real risk the applicants will suffer significant harm due to any adverse profile with any state or non-state actors in India, and the Tribunal rejects that the applicants will be arbitrarily deprived of their lives; or that the death penalty will be carried out on them; or that they will be subjected to cruel or inhuman treatment or punishment; or that they will be subjected to degrading treatment or punishment by non-state or state actors.

105.   The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).

1. There is no suggestion that the applicants satisfy s.36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criterion in s 36(2).

   DECISION

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

Rosa Gagliardi
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.

…