2018493 (Refugee)

2018493 (Refugee) [2021] AATA 440 (25 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2018493

COUNTRY OF REFERENCE: India
MEMBER:Luke Hardy
DATE:25 January 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 January 2021 at 2:48pm
CATCHWORDS
REFUGEE – protection visa – India – religion – particular social group – mixed caste relationship – girlfriend forced into abortion – under the age of consent – state protection – signature of blank documents – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 December 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, [named], is a citizen of India. He entered Australia on a student visa [in] February 2015. His visa was later cancelled and, for a period of some months, be became unlawful non-citizen. He lodged a protection visa application on 20 June 2017. He was interviewed by the delegate on 26 November 2020. The delegate refused to grant the visa on 4 December 2020. [The applicant] then sought merits review in the matter.
The Tribunal hearing was a video-conference hearing conducted on 22 January 2021, with the Tribunal in Sydney and [the applicant] in immigration detention at [a detention centre]. There was no need for an interpreter. There were no technical issues affecting communication.
I am satisfied that [the applicant] had an opportunity to make and speak fully to his claims.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the “refugee” criterion, or on other “complementary protection” grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (“the complementary protection criterion”). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The main issue in this case is whether the applicant is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims to the Department
In a one-and-a-half page statement submitted along with his protection visa application form, [the applicant] made the following claims:
I, [the applicant] of […], […] NSW […],
an Indian Citizen, arrived in Australia as a student. I am seeking
protection in Australia so that [I] do not have to go back to India
where I had suffered significant physical harassment and threats
because of my caste background and my relationship with a higher
caste girl. I was born in lower caste Hindu family in India. In my
state caste identity is of outmost importance right from birth to
death and any attempt to break the age old social barriers are
dealt with severely. Hindus like me belonging to lower caste are
unofficially declared as untouchable and are given a second grade
citizen treatment. I was forced to sit on the back benches in the
school all the my school life.
I met a girl who was from higher caste Hindu background. We met
in local market and continued our relationship despite I received
death threats from higher caste Hindu affiliated BJP and RSS. We
kept very low profile of our relationship but as soon as the news
broke out that she got pregnant, the higher caste mob barged in to
our village and ransacked our houses. Luckily I was not at home. I
knew the Hindu extremists wanted to take the advantage of the
situation because my family supporter of Congress party. My
family members warned me the gravity of the situation and said I
should leave the country as soon as possible to escape further
attacks on me and my family. I was demoralized and deranged
and my immediate priority was my safety. I left the country and
arrived in Australia as student. I was very hard at the beginning to
live without my family and I could not continue my study because
of the separation from my family. I wanted to go back but my
parents already moved out of the area and told me not to go back
to India in near future. They hired people to keep eye on our family
specially waiting for my return to India.
I am much traumatised over my current situation and seeking
protection in Australia. I believe if I go back to India they will kill
me.
[signature]
[name]
For the record, as this becomes relevant later on, [the applicant’s] signature appears just above the halfway point down the second page of the statement, on the left side.
In a statutory declaration evidently signed before a Justice of the Peace [at Location 1 in] Sydney on 16 June 2017, at the end of his original protection visa application, [the applicant] declared that all the evidence he had provided in his original protection visa application was true, correct and complete. Below that declaration he indicated that he had had no help from anyone in the preparation of his application, although it appears that the latter, albeit sparsely filled, has been typed by someone.
[The applicant] did not submit a copy of the delegate’s decision in this case with his review application, and failed to do so even after the Tribunal requested that he submit one.
However, as shown below, he discussed at length with me what was said at the interview conducted by the delegate in his matter.
Evidence to the Tribunal
[The applicant] told me that he came to Australia because he had always wanted to learn abroad. He said he arrived here [in] February 2015 on a student visa issued in the preceding month. He said it took about three to four, or five to six months for his student visa application to be processed by the Australian High Commission. He claimed that, although born in Chandigarh, Harayana, he was raised in [Town 1] along with his [sibling] by their parents and lived with them all at the same address up until the time he came to Australia.
[The applicant] said he arrived on a student visa with the intention of doing [specified] studies. He commenced a [Diploma] course at [a named university] and changed providers to pursue the same studies at an institution in [Suburb 1]. He said that he studied there for about ten or eleven months but count not complete the course because of a failure to pay tuition fees, an issue that caused the cancellation of his student visa in January 2017.
[The applicant] said he was unable to pay his tuition fees because he was not working and had a gambling addiction, losing a lot of money on poker machines. He said that he spent several weeks out of contact with the college in [Suburb 1] because he did not have a mobile telephone at that time. He did not tell his family of his problems out of a sense of shame. He said he had a few debts although they only amounted to fifty dollars here or there.
[The applicant] said that when his visa was cancelled he did not know what to do. At this stage he would have become an unlawful non-citizen. He said he discussed his situation with friends, asking them if he was expected then to return to India and being told that he was. He said that one friend connected him with another person who helped him lodge a protection visa application. Up to this point, from what [the applicant] was telling me, the issue he was grappling with was about returning to India without his diploma and after having squandered his tuition fees.
I asked [the applicant] to tell me why he was seeking protection in Australia, and he said that he had been in a two-year relationship with a girl in India. He said that after he came to Australia her brother contacted him via the telephone function on the [instant communication] social medium (i.e., verbally) to tell him that she was found to be pregnant and had been taken for an abortion. He said the brother told him that that he had ruined the girl’s life and that if he returned to India he would be killed. He said that he received the call in August or September of 2015, some seven or eight months after he arrived in Australia. On my observation, say, had the child been conceived as late as February 2015, the call would have been made around the child was nearing full-term.
I asked [the applicant] if he knew when the girl had had the abortion and he said it would have been dome at some stage between March and September 2015. This meant that it took a long time for anyone to contact him about the matter.
[The applicant] told me that he and his girlfriend had continued to stay in touch for around three to four months after he came to Australia in February 2015. He said that throughout this period she was begging or “forcing” him to return to India but never mentioned being pregnant, let alone having to have or had an abortion.
I asked [the applicant] if the girl’s family knew of the relationship while he was still in India and he said that neither his nor her family had known anything about it, as far as he was aware. I asked him to tell me what, if anything about the relation would or might have been regarded by either or both families as controversial and he said that both he and the girl had been under age: she, 16, and he, 18; the ages of consent in India being 18 for women and 21 for men. He said he also explained this to the delegate and, although I am prepared to accept that he did, this is not what he had originally said in this protection visa application where he said the issue was one of differences in Hindu caste.
[The applicant] told me he received a call from a female friend in India who confirmed the news of the girl’s pregnancy and subsequent abortion. He said he knew nothing of the subsequent circumstances or fate of the girl because he changed his telephone number, preventing people from contacting him. I was somewhat troubled by this claim because all it takes to stop someone from calling you on [the communication app] is to block that person and vet strangers who express a desire to connect with you; this is much easier and less complicated than changing the telephone number at which everyone else can reach you. This information is easily confirmed by the App itself, some of it amongst its own FAQ (frequently asked questions). [The applicant] also said that some anonymous caller called him on [the app] in 2018 and said to him, “You’ll be killed.” [The app], meanwhile, operates on the basis of shared numbers and/or email addresses, meaning that a call or message is traceable at least to pseudonym or avatar, but also to a telephone number and/or email address. I was somewhat concerned by this claim because it seemed to contradict [the applicant’s] claim about having changed his contact details or account to prevent people in India form contacting him.
In any event, I asked [the applicant] if he could provide evidence of all of these exchanges on [the app] and he said he could not, because they were all on his old telephone which he brought here from India and was broken around the time he was attending the college in [Suburb 1]. However, the 2018 call would not have been made to his old telephone and, in any event, [previous] communications are portable between devices because each time a new one replaces an old one, the user needs to download his or her [app] account along with its messages and call records from what is known in Apple jargon as the iCloud.
It can be seen, from the claims described above, that [the applicant] was no longer claiming that the controversy at the heart of the alleged relationship was one of caste, and he was no longer claiming that his girlfriend’s family confronted him about the pregnancy, and harassed his family, while he was still in India, causing him to flee the country for Australia in fear of his life.
[The applicant] told me that the person who helped him lodge his original protection visa application, a Bangladeshi called [Mr A], asked him just to sign a paper. He said that the claims he described to [Mr A] were the same claims he was making before me at the hearing. He said he paid [Mr A] $1,500 for his help. [The applicant] said that [Mr A], however, changed his true claims into those that appeared in his protection visa application without his knowledge or consent at the time. He told me that when he was able to discuss his own claims at his protection visa interview with the delegate, he was told by the delegate that they were not consistent with the claims that appeared in his original protection visa application. He told me that he explained to the delegate that someone had charged him money for help with his protection visa application.
I drew [the applicant’s] attention to his claimed fluency and literacy in English, as noted in his protection visa application and as well attested by his fluency and comprehension at the hearing. I asked him how he had not noticed the changes to his claims prior to attending the interview with the delegate, when, as he told me, he first learned of them from the delegate. In reply, he said that [Mr A] made him sign an empty form or something, at [Location 2] in Sydney, and asked him to send him a copy of his passport.
I asked [the applicant] to tell me specifically what he had signed for [Mr A]. In reply, he said that [Mr A] had given him “two or three papers” to sign and that “I didn’t read them because I’d paid him money to say what I had claimed.”
I asked [the applicant] to tell me at least what generally appeared on the pages he did not read and he said he saw his name, some details and his age. He said there was one blank page as well, although he was later to tell me that [Mr A] presented him with two blank pages.
[The applicant] told me that he signed the blank page. I asked him why he would sign a blank page and he said that this is what [Mr A] “did.” I put to him that I was asking him about his own state of mind at the time of the request to sign and he said he believed that [Mr A] was doing the right thing.
I asked [the applicant] to describe where on the blank page he had paced his signature and, in reply, he said he signed it on the bottom of the page on the right. Then he changed his claim, saying that he might have signed it on the left. He repeated the claim about having signed the bottom of the blank page. I put to him that I had before me a statement that was signed but not on the right hand side of the page. In reply, [the applicant] said he signed on the right or left “down the page.” I put to him that the statement was not signed on or near the bottom of the page; I told his this because, as noted earlier, the signature appears almost halfway down the page, which is closer to the top of the page than the bottom. [The applicant] then said, “That’s what I remember. Somewhere at the bottom, left or right.”
This was when [the applicant] said that [Mr A] presented him with two blank pages and asked him to sign only the second one “close to the top.” I asked [the applicant] why [Mr A] would have presented him with two blank pages and asked him then to sign only one, and he said, “I don’t know.” I put to [the applicant] that Mr [Mr A’s] methods made no sense either to me or to him. He did not disagree.
What [the applicant] seemed to be claiming to have expected, or taken for granted, at the time he signed the second of the two pages, was that [Mr A] would at some later stage, when he got around to it, draft and contain all the key claims in this matter on the first and the top third of the second pages. This position struck me as being somewhat far-fetched, to the point of seeming fanciful.
I asked [the applicant] if his claims about the location of his signature were based on remembering the sight of the completed one-and-a-half page statement of claims which he subsequently signed, just above his typed name, and he said this was not the case. I put to him that it seemed fanciful that a person would present him with two blank pages and direct him to sign the second one just slightly north of its equator. He said this was nevertheless what he agreed at the time to do.
Essentially, [the applicant] was claiming that he never took a moment to look at, let alone check, the claims in his original protection visa because he had paid [Mr A] an amount of money that, as he put it, gained from [Mr A] his trust. This explanation struck me as seeming somewhat nonsensical.
I drew [the applicant’s] attention to the protection visa application form, the last page of which he had evidently also signed, this attesting to having reviewed all if his claims and fund them to be true correct and complete. He told me that he signed this page when he met [Mr A] at [Location 2]. I put to him that he had evidently signed the statutory declaration on that page in the presence of a Justice of the Peace [at Location 1], who witnessed his signing in writing on 16 June 2017 rather than in [Location 2]. In reply, he said that he definitely signed it [at Location 2] in the presence of no-one but [Mr A].

I put to him that according to what he declared solemnly on that page, no-one helped him with his application, which could be taken to mean that a person called [Mr A] had no role in the process at all. In reply, he said that this information about no-one having helped him would have been added after he signed the blank form.
[The applicant] discussed some details of his criminal record in Australia. He said he received a nine-month jail sentence last year, [a specified part] in custody and [the remainder] on parole, for charges including [specified offence] and two failures to appear in court on scheduled dates. He mentioned being transferred into immigration detention at the commencement of his parole period. He was in detention when he was interviewed by the delegate in 2020, over three years since lodging his original claims.
I asked [the applicant] to describe the terms on which he and his girlfriend parted at the time he came to Australia. I asked him why he even left her to come here if he was in a relationship. He said he had wanted to study abroad since his childhood. He said he told his girlfriend at the time that of all went well he would return and marry her. He said that she was “ok and sad” in response. He acknowledged that she would already have been pregnant by this stage but did not ask him to stay. It is possible, in the context of these facts, that the pregnancy was still too new to detect. I expressed some surprise that, after trying unsuccessfully in telephone calls to “force” [the applicant] to return to India, after his arrival in Australia, the girlfriend never resorted to mentioning that she was pregnant to him. [The applicant], in reply, said she simply did not tell him. This seemed odd since, in the context of the claims overall, it was the reason why the girlfriend needed him to return; on the other hand, a woman in such a situation might fear that mention of pregnancy might put grater distance between her and the baby’s surprised father.
Having heard from [the applicant] that there was some evidence in his [instant communication app] account apart from verbal calls of threatening messages, I asked him if he could not present these to the police and obtain some state protection. In reply, he indicated that he could do so were it not for the fact that the girlfriend’s family is politically connected, [a relative] of hers, named [Mr B], being a local MP for the ruling (Hindu nationalist) BJP. I questioned how this connection would prevent the prosecution of someone making death threats via the Internet, and he said, “I’m not saying the police won’t help me.”
I asked [the applicant] if he might safely, reasonably and practicably relocate to a city far from Harayana, in order to avoid coming to any attention on the part of the former girlfriend’s family. I suggested cities like New Delhi, Mumbai and Chennai. In reply, he did not indicate that relocation per se would be any kind of problem for him except that he would not be able to resist pressure from his family to reside with them in [Town 1], Harayana. I put to him that his family did not seem to mind him living in Australia, and he said that they do not mind him living apart from them when he is living in a foreign country, but would expect him to come home to [Town 1] if he were living in India and not think well on him if he refused. All the while he did not suggest that relocating to any of the cities cited above would be useless in putting a safe distance between himself and his alleged persecutors.
I asked [the applicant] if he could not just tell his family what problems he might face if he were to return to reside in [Town 1], and he said, “I can’t.” I asked him of his family was aware of his criminal and penitent records in Australia, and he said they were. I asked him if the case involving the girl might be less serious, after all this time, than his criminal history in Australia and he digressed, telling me about having become addicted to prohibited drugs in Australia “because of an Aussie girl.” I asked [the applicant] if he might have become addicted to drugs through his own agency, in which case he might be projecting blame for his own shortcomings on someone else, this time a woman; he did not seem to give a cogent reply.
At this stage in the hearing, [the applicant] appeared to emphasise the claim to the effect that his family in India remained completely unaware of his having shamed the former girlfriend’s family (in addition to being shame directly upon her). Throughout the Tribunal hearing, [the applicant] argued that the girl’s family did not engage the community in its vendetta against him out of a sense of shame, and to a certain extent I could see in principle what he meant by this; on the other hand, the same sense of shame was the alleged trigger, in [the applicant’s] original claims, for the girl’s family taking the matter to his family in his absence, the act of involving his family appearing to be a means of restoring face and honour. The position suggesting that after five years since his coming to Australia [the applicant’s] family has been told nothing of the other family’s disaffection struck me as being far-fetched.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[1] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, 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 made out.[2]
[1] MIMA v Rajalingam (1999) 93 FCR 220.
[2] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[3] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[4]
[3] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[4] Sun v MIBP [2016] FCAFC 52 at [69].
One particular difference between the two sets of claims that [the applicant] has presented over time is that, in the original set of claims, some harm had allegedly already come to [the applicant] and his family before he fled to Australia, whereupon the situation worsened with the news of his girlfriend’s pregnancy; whereas the newer iteration of claims those he evidently made to the delegate and generally adhered to in his evidence before the Tribunal, are essentially sur place claims. One can reasonably be open to the possibility that an unscrupulous adviser, with or without his client’s knowledge or approval, might try to embellish genuine sur place claims in the hope of strengthening a client’s claim to refugee status; reports from the Office of MARA show that such behaviour has been found. If this were all that had happened in the present case, I would still be concerned as to why [the applicant] purportedly knew nothing of the contents of his original protection visa application until, according to him, the day of his interview with the delegate.
Another difference between the two sets of claims is that [the applicant’s] original application raised the factor of intolerance on the basis of socio-religious caste, even though, very arguably, neither “religion” nor “membership of a particular social group” were essential and significant factors in the persecution claimed. This is because the act of forming a relationship with the woman described in those claims, and causing her to become pregnant, both of these being individual actions, were the trigger for the harm purportedly feared. In the second iteration of [the applicant’s] claims, the caste issue is no longer a part of the evidence and, therefore, the issue at the heart of the new claims is even more exclusively personal and individual.
In both sets of claims, [the applicant] suggests that his former girlfriend’s family has the power to pursue him and prevent interference by the police and the institutions of justice because of their connections to a political party, unnamed in the original application, but identified at the Tribunal hearing as the ruling (Hindu nationalist) BJP. In the original claims, [the applicant] originally said the relevance of the political element was that the people who wanted to harm him over the relationship with the girl would more likely do so because they wanted to punish his family for supporting the Congress Party, which is the BJP’s main opponent in Indian politics; however, he did not suggest that anyone in his family had ever faced being persecuted for reasons of “political opinion” per se. Then, at the Tribunal hearing, [the applicant] seemed to indicate that the political character of his persecutors had more to do with the prospect of being able to harm him with impunity. Again, this claim involves a political element, but mainly just to argue the “real chance” issue; it is not a reason for the persecution claimed.
In either case, I am not satisfied that [the applicant’s] claims have a nexus with any of the five factors cited in s.5J(1)(a) and, consequently, they cannot succeed as refugee claims; but, in any event, are they even credible?
[The applicant] has distanced himself from the claims as originally submitted to the Department in 2017. It would therefore be necessary to accept his explanation as to how the first set of claims came to be presented in order to give credence to the newer set of claims.
[The applicant] having signed blank forms including what should have been a statutory declaration would seem to a reasonable person to have been act of serious bad faith in a matter like the present application. If it is true that he did so, say, out of a lapse of good judgment, that does not mean in itself that the claims he said that he made at the delegate’s interview, and repeated at the Tribunal hearing, are necessarily true.
The issue that troubles me here is [the applicant’s] account of [Mr A] allegedly presenting him with the two blank pages and getting him to sign the second page just above halfway down. This claim is central to [the applicant’s] assertion to the effect that someone else was the ultimate drafter of his submitted claims, but it ultimately strikes me as contrived, invented and absurd, and there was a certain amount of inconsistency in its making.
This problem accumulates with concerns I have as to the credibility of [the applicant] having signed an empty From 866 protection visa application in [Location 2] rather than in the presence of the JP [at Location 1], which is what the form shows.
Ultimately, I believe that the actions attributed by [the applicant] to a person called [Mr A] have been invented in evidence as a way to explain why his claims to the delegate, as he described to me, differed substantially from the claims that appeared in his original protection visa application and statement of claims, and why he was not aware of the difference, as he told me, until the delegate pointed this out to him at the protection visa interview.
On review of the evidence before me, I am not satisfied that anyone other than [the applicant], himself, is the author of the inconsistent claims in this matter.
Accordingly, I find that [the applicant] himself made the original claims as appear in his original protection visa application, and later changed them himself.
Whereas [the applicant’s] migration history and delay in lodging his protection visa application are to some extent more consistent with the sur place case that he says he presented to the delegate and that he also presented to me, I am not satisfied that these more recently articulated claims are factual. For example, I am not satisfied, in the claimed circumstances, that [the applicant’s] family could have remained completely unaware, over these five years or more, of any of the alleged anger on the part of the alleged girlfriend’s family.
I find on the evidence before me that the timing of [the applicant’s] original protection visa application had to do with his failure to keep up with studies in Australia and the failure this meant for his family’s efforts in supporting him to come here. I find that [the applicant] might have varied his claims over time perhaps because he had forgotten key aspects of those original claims by the time he attended the delegate’s interview, but I do not accept, in any event, that the inconsistencies in his claims are the work of someone operating outside of his consent. Overall, I am not satisfied on the evidence before me that he is a reliable witness in the present matter.
On the evidence before me, I am not satisfied that [the applicant] faces a real chance of being persecuted in India in the reasonably foreseeable future for any of the reasons cited in s.5J(1)(a) of the Act. His claimed fear is not well founded. He is not a refugee.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
"Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that [the applicant] is a citizen of India, I find that India is the “receiving country” in this case.
I find that the harm [the applicant] identifies in his claims appears to include “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.
[The applicant’s] claims to complementary protection are essentially the same as his refugee status claims. His claims have failed as refugee status claims due to their lack of nexus with s.5J(1)(a), their lack of credibility and their failure to meet the “real chance” test. In the circumstances, those claims can no more succeed as complementary protection claims.
In the alternative, I find on [the applicant’s] evidence that he would be caught by s.36(2B)(a) and (b). He explicitly denied suggesting that the police would not tr to help him, and the reason he gave for not wishing to relocate within India was unsatisfactory in that it was evidently something he could reasonably discuss with his family.
On the evidence before me I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that [the applicant] will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
There is no suggestion that [the applicant] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
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.
…

[2021] AATA 440

25 January 2021

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