2101689 (Refugee)

2101689 (Refugee) [2021] AATA 3394 (24 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2101689
COUNTRY OF REFERENCE:                   India
MEMBER:Rachel Da Costa
DATE:24 August 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 August 2021 at 2:55pm
CATCHWORDS
REFUGEE – Protection visa – India –land dispute – applicant adjusted evidence in response to the Tribunal’s concerns – information contained in the medical certificate is not genuine – delay in lodging the visa application – inconsistent evidence –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5J, 36, 65,499
Migration Regulations 1994, Schedule 2
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 22 January 2021 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of India, applied for the visa on 20 April 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
In his application for a protection visa the applicant provided the following information. He was born on [date] in [Village 1] village, Kapurthala district, Punjab state in India. He lived there until he came to Australia. He has a father, mother [and siblings]. His religion is Sikh. He speaks, reads and writes Punjabi, Hindi and English. He completed High School in India and came to Australia [in] September 2008 on a student visa which was valid until March 2014. A subsequent student visa was cancelled due to his failure to meet the attendance requirement. He returned to India for visits to his family twice in 2011 and twice in 2012. While in Australia he has completed his [a qualification]. He has also worked in various jobs while in Australia. He holds a current passport issued by the Republic of India in Sydney [in] 2015 which replaced his previous passport which had expired.
Evidence before the Department
Protection visa application
The applicant makes the following claims in his protection visa application form.
·     He left India because things have changed in Punjab. His family is Sikh and most of their neighbours are Hindu.
·     A person called [Mr A] owns many properties near the applicant’s family’s property. He is forcing the applicant’s father to sell their property to him at a low price.
·     In 2012 when the applicant’s father said no to him, the next day he came with a group and attacked the applicant, his brother and his father. The applicant’s father and brother were injured and the applicant got some minor injuries.
·     The group came to their town with some dangerous stuff. They used hockey sticks and other stuff to attack them. [Mr A] was the main person from that group who made the plan to attack them. They were scared.
·     After the attack they went to the nearest government hospital to claim their injuries at front of police.
·     They were shocked when they saw [Mr A] talking to the inspector at the police station. They provided their medical to the police and the police said they would investigate. After a couple of days the police called them and said they must compromise with [Mr A] and sell him their property.
·     The applicant is the main son because his elder brother is handicapped so his parents want to save the applicant until everything is properly sorted out.
·     The opposition party has powerful politicians in the current ruling Congress party.
·     Before the applicant came to Australia his father included the applicant’s name along with his own on the property documents so that now, if the applicant does not sign the property cannot be transferred to anyone.
·     [Mr A] is trying to evacuate the property with legal documents so he does not need to face court.
·     [Mr A] is using his political contacts and police help to put them on their knees and hand over their property to him.
·     They only have this land to survive and feed their family now so they cannot let it go in any circumstances.
·     If he returns to India and keeps saying no to [Mr A], he will attack the applicant again. His life is in danger. [Mr A] will try to snatch their property because he is waiting for the applicant to come back. They are not going to sell their property to him. [Mr A] is trying to use all his links to pursue the applicant’s father but if the applicant does not go back the property can’t be transferred because he needs the applicant’s signature.
·     The applicant did not try to move to another part of the country because his family has lived in that place for more than 80 years and all his relatives are there. It is not easy in India to move to other places because they have seen examples that people who tried to move still live like refugees. They thought that as time passed things would get better but unfortunately they face all this.
·     He cannot relocate because the current government in Punjab is very corrupt. If the government changed in the future there may be little hope to finish all these matters.
·     The authorities cannot protect him because the current government ruling Punjab is no help for justice. There are state elections next year in Punjab. If the BJP comes to power there is little hope to get justice as BJP supports Hindus in India. There is no one to protect them.
The interview
On 20 November 2019, the applicant attended an interview with the Department to discuss his protection visa application. In that interview the applicant reiterated his claims and responded to questions clarifying aspects of his written claims. He also provided a number of documents in support of his claims.
Request for further information
On 23 November 2020, an officer of the Department wrote to the applicant indicating that he had listened to the recording of the applicant’s protection visa interview on 20 November 2019 and in order to be satisfied that the applicant’s claims for protection are genuine, he required further information regarding the applicant’s claims.
The delegate requested copies of the documents the applicant provided at his interview as they were not on the Department’s file. The delegate also invited the applicant to provide any other documentary evidence or information that he wished to in support of his application.
The delegate put to the applicant for comment pursuant to s 57 of the Act his concerns about the applicant’s delay in lodging a protection visa application for a considerable period of time after he arrived in Australia.
The delegate also put to the applicant a number of questions in relation to responses he had given at the interview.
On 20 December 2020, the applicant provided a written response to the delegate’s questions and included a number of documents in support of his claims[1]:
·     Affidavits dated 15 November 2019 from the applicant’s mother, father, uncle/neighbour and the Sarpanch (elected representative) of the applicant’s village;
·     Medical certificate from [a named] Hospital dated [November] 2019 stating that the applicant, his father and brother were treated for injuries from [September] to [October] 2012;
·     Medical certificates relating to the medical conditions of the applicant’s mother and brother;
·     Screenshots of telephone calls to the applicant’s mother in India;
·     Certificates and transcripts relating to the applicant’s study in Australia.
[1] In his decision, the delegate accepts that these documents are the same documents presented by the applicant at the interview.
The applicant’s written response made the following points:
·     He last arrived in Australia [in] October 2012.
·     He didn’t apply for a protection visa at that time because he had his student visa.
·     His student visa was cancelled on 18 November 2015 because he failed to enrol in a registered course. At that time his father was going through hard financial problems and he didn’t have enough money to enrol in a course.
·     He applied for an appeal in the Federal Court. He failed to attend the hearing because of family tensions and financial tension and he was not able to hire a migration agent.
·     He didn’t travel to India while he had a valid visa because of fear of risk to his life.
·     He decided to go back to India in 2017 but his family said [Mr A] was still giving problems so he visited a migration agent who suggested a protection visa.
·     He didn’t have enough money to pay the migration agent so he lodged the application himself.
·     The meeting with [Mr A] was on [date] September 2012. The Sarpanch of the applicant’s village was also there. He tried to solve the matter but [Mr A] refused to accept all things. He just wanted the applicant’s land and his family only has that land to support themselves.
·     They approached the police but [Mr A] has strong relations with politicians so they didn’t get any help from police and sarpanch.
·     It has been over eight years but [Mr A] still wants to take their property and if he goes back, the applicant’s life will be dangerous.
·     They didn’t get any help from the Congress party in Punjab or the SAD.
·     They tried to solve this issue but in India they don’t believe there is anyone to help them. The government ruling India there is no help for justice.
·     His father is nearly [age], his brother is totally handicapped and his mother had gone through brain attack from tension. Only his father is looking after his family.
·     In India without money and connections with government no one will help you.
·     His family only have this land to live and survive and if [Mr A] took over the property where are they going to live and how are they going to survive. He is the only son who can look after them and if he goes there his life is at risk and how will they survive if something happens.
·     [Mr A] can’t transfer their land to his name without the applicant’s and his father’s signature. He attacked them in 2012 and the applicant has attached a hospital certificate.
·     Even if he moved to another city like Mumbai or Bangaluru it is the same country. It is the same well founded fear of harm. It is not easy to settle over there and protect himself. It is very easy for [Mr A] to find out in India once he got strong connection.
·     He hasn’t seen his parents for 8 years because of his fear of his life being at risk.
This information is referred to below where relevant.
The delegate’s decision
On 22 January 2021, a delegate of the Minister refused the applicant’s protection visa application. The delegate was not persuaded by the applicant’s explanations of why he delayed lodging his protection visa application or why he only obtained his supporting documents just before the interview in November 2019 when his application was lodged over two years earlier in April 2017. The delegate also had a number of concerns about the credibility of the applicant’s claims and was not satisfied that they were genuine or reflective of his true circumstances. The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
The review application
On 15 February 2021, the applicant lodged an application for review of the delegate’s decision with the Tribunal. The applicant provided a copy of the delegate’s decision to the Tribunal. On this basis, the Tribunal considers the applicant to be on notice of the delegate’s concerns and findings.
The hearing
The Tribunal exercised its discretion to hold the hearing by video using the Microsoft Teams platform (MS Teams) with the agreement of the applicant. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.
During two technology checks conducted by the Tribunal prior to the hearing, the applicant was able to get the MS Teams video but not the audio to function on his device. In light of this, the Tribunal asked the applicant whether he agreed to the hearing being conducted via telephone instead. The applicant agreed.
The applicant appeared before the Tribunal on 18 August 2021 via telephone to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
Nationality
The applicant claims to be a citizen of India and provided to the Department a copy of his Indian passport issued [in] 2015. The delegate was satisfied that the applicant was using his own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of India. The Tribunal finds India is his receiving country for the purpose of assessing his claims for protection.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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, 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).
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.
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.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.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant gave evidence to the Tribunal that he completed his protection visa application himself without assistance and that the information it contains is true and correct.
During the hearing, the Tribunal discussed with the applicant his family, education, employment, where he lived in India, his migration history, the problems he and his family had experienced in India and why he fears returning to India. The Tribunal has concerns about the truthfulness of the applicant’s evidence in relation to claimed events in India and overall did not find him to be a credible witness. In particular, there were inconsistencies in various aspects of the applicant’s evidence about the key claimed events and the Tribunal considers that the applicant adjusted his evidence in response to concerns raised by the Tribunal about these inconsistencies, which undermined his credibility.
The Tribunal’s concerns are discussed below.
First, the applicant’s evidence in his protection visa application, his interview with the delegate and during the Tribunal hearing about the circumstances and location of the claimed attack by [Mr A] contains various inconsistencies. The applicant also raised a new claim about the number of attacks that occurred.
The applicant explained at the Tribunal hearing that his family owns a parcel of land which is about 3 acres in size and is located around 3 to 4 kilometres outside the village of [Village 1]. They use the land for farming. His father inherited the land from his father (the applicant’s grandfather). The Tribunal accepts this evidence.
The applicant stated it is this land that [Mr A] is pressuring the applicant’s father to sell. [Mr A] wants the land because he has a factory on his land, which is next to the applicant’s family’s land, and he wants to expand his business.
In his protection visa application, the applicant claims that when his father said no to [Mr A] about selling the land, the next day [Mr A] came with a group and attacked the applicant, his brother and his father.
In his interview with the delegate, the applicant claimed that when he arrived back in India in September 2012 he talked with his family about the problem with the land and they talked to the Sarpanch (village official) who organised a meeting on [date] September 2012. They (meaning [Mr A] and his group) attacked them in the meeting. [Mr A] came with 8 other people.
In his written response to the delegate’s questions, the applicant stated that the meeting with the Sarpanch and [Mr A] was held on [date] September 2012. The Sarpanch tried to solve the matter but [Mr A] refused to accept all things. He stated later in his response that [Mr A] attacked them in 2012.
In the Tribunal hearing, the applicant gave evidence that a meeting was arranged with the Sarpanch on [date] September 2012 but nothing came out of the meeting. Later in the day his father, he and his brother were doing some work on their land in the afternoon and that is when [Mr A] attacked them with some of his men. He said 6 to 7 people were involved, including [Mr A]. They came to his father and asked him why he hadn’t signed. His father said they could resolve it by meeting but they didn’t listen and they attacked. They hit them with metallic punchers that gangsters use.

The Tribunal put to the applicant that he had told the delegate in the interview that the attack happened during the meeting with the Sarpanch. The applicant responded that there was a minor fight during the meeting but the main attack was done in the fields the same day. The Tribunal asked the applicant whether he was now claiming that there were two attacks. The applicant responded that there was a minor fight in the meeting, because in the meeting people cannot fight, which is why they attacked later. The Tribunal put to the applicant its concern about the inconsistencies in his evidence about the location of the attack and that this was the first time he had made the claim about there being two attacks. The applicant responded that maybe at that stage in the interview he was nervous and he didn’t have an interpreter so he may have said something in a different way.
The Tribunal does not accept the applicant’s explanation. While it is not clear from the applicant’s protection visa application where he claims the attack took place, he claimed to the delegate that the attack took place at the meeting with the Sarpanch. He claimed to the Tribunal that the attack took place on their land. When challenged by the Tribunal he changed his evidence to claim that a small attack took place at the meeting but the main attack took place on the land. The Tribunal considers that the applicant adjusted his evidence in the Tribunal hearing in response to the Tribunal’s concern about the inconsistency, which undermines his credibility. The inconsistency in the applicant’s evidence about where the attack took place raises concerns for the Tribunal about the applicant’s credibility and the truthfulness of his claims.
The Tribunal has considered the applicant’s statement that perhaps he was nervous during his interview with the delegate and because he didn’t have an interpreter he may have said something in a different way. The Tribunal does not accept this explanation. The Tribunal has listened to the recording of the delegate’s interview with the applicant. While it is possible that the applicant was nervous during the interview he did not claim to be nervous at the time and did not give the impression he was having difficulty answering the delegate’s questions for that reason (or any other reason). In relation to the lack of interpreter, the delegate’s decision record notes that the interview was conducted in English as the applicant had indicated that he spoke English and did not need an interpreter. In the Tribunal’s view, the applicant did not seem to have difficulty understanding or responding to the delegate’s questions. In any event, the Tribunal does not accept that claiming an attack took place in a meeting as opposed to in a field later in the day amounts to saying something in a different way. In the Tribunal’s view, this is different and inconsistent evidence about an event that is central to the applicant’s claims which raises concerns about the credibility of the applicant’s evidence and the genuineness of his claims.
Secondly, the applicant’s evidence about the injuries he suffered as a result of the claimed attack was inconsistent with his claims in his protection visa application and his evidence to the delegate.
In his protection visa application the applicant claims that in the attack by [Mr A] the applicant’s father and brother were injured and the applicant received some minor injuries. After the attack they went to the nearest government hospital to claim their injuries at front of police.
In the interview with the delegate, the applicant claimed that [Mr A] and his group attacked them in the meeting with the Sarpanch and that the applicant, his father and his brother were badly injured. In his written response to the delegate’s questions, the applicant states that [Mr A] attacked them in 2012 and he has attached a hospital certificate.
In the Tribunal hearing, the applicant gave evidence that after the attack by [Mr A] and some of his men on [date] September 2012 (as described in paragraph 38 above) they had to remain in hospital for treatment until [October] 2012. The Tribunal put to the applicant that in his protection visa application he claimed that his father and brother were injured in the attack and the applicant received some minor injuries, and that was inconsistent with the evidence he had given to the Tribunal about all three of them having to remain in hospital for around ten days for treatment. The applicant responded that when he mentioned ‘we’ in the context of the injuries and them remaining in hospital he was talking about his other family members being injured and being treated in hospital and not about himself. He only received minor injuries. The Tribunal does not accept this explanation as plausible. The Tribunal clearly understood the applicant to have given evidence that he was hospitalised for that period and considers that the applicant adjusted his evidence about his injuries in response to the Tribunal’s concern, which raises concerns about the applicant’s credibility and the genuineness of his claims.
The Tribunal put to the applicant that the medical certificate he provided from [a named] Hospital dated [date] November 2019 says he, his father and his brother all suffered from the same injuries which were bruises and beating to their bodies, they were unable to walk and sit and they all remained under treatment in hospital until [October] 2012, and that this information is inconsistent with his claims in his protection visa application that he only suffered minor injuries and did not mention being hospitalised. The applicant responded that the hospital provided them with a joint medical certificate which is why they have mentioned that everyone was treated but if they had given separate certificates then it would have given specific details about each person’s treatment. The applicant stated that he just provided the certificate that was provided to him.
The Tribunal does not accept this explanation. The applicant obtained the medical certificate and provided it to the delegate at his interview on 20 November 2019 and then again with his written response on 20 December 2020 which suggests he considered the document supported his claims and he was asserting the truthfulness of the information it contained. The Tribunal does not consider the applicant’s attempted justification of the inconsistencies between the information in the certificate and the evidence he gave in the Tribunal hearing about his injuries to be plausible or satisfactory. Again, the Tribunal considers that the applicant adjusted his evidence in response to the Tribunal’s concerns which undermines his credibility and the genuineness of his claims. Like the delegate, the Tribunal does not consider the information contained in the medical certificate to be genuine.
The applicant said he could provide different certificates that should give more details on everyone. The Tribunal indicated that if the applicant provided further certificates it may give them little or no weight given they were being provided so long after the claimed events and country information indicates that false documents are very easy to obtain in India.[2] The applicant responded that even if he provides real certificates if the image of the country is such that documents can be fabricated then he is not sure how he can prove his case. The Tribunal explained to the applicant that its concerns went beyond just the document itself and it had broader concerns about the inconsistencies in his evidence which raised doubts for the Tribunal about the truthfulness of the applicant’s account of events and his claims more generally.
[2] DFAT Country Information Report India 10 December 2020, 5.65
Thirdly, the applicant claims that [Mr A] is still trying to get the land. The Tribunal discussed with the applicant what further interactions, if any, had taken place with [Mr A] after the claimed attack and visit to the hospital. The applicant stated that after he was released from hospital on [date] September 2012 he went home and in the days following he spent time bringing things to his father and brother in hospital because there was no one else to do that. The Tribunal asked the applicant whether there were any other problems or incidents with [Mr A] or his gang after the attack. The applicant responded that he left India and came back to Australia.
The applicant told the Tribunal that [Mr A] has been pressuring his father about the land but his father has told [Mr A] he is not the sole decision maker and the applicant’s signature is required to transfer the land and the applicant is not in India. The Tribunal asked the applicant how often [Mr A] was pressuring his father. The applicant responded that his father has leased out the land to someone else and so [Mr A] is pressuring those people instead. They came up with the temporary solution to lease the land to someone else so his father doesn’t have to visit the land because they were afraid he might be attacked there again. The Tribunal put to the applicant that if [Mr A] still wanted to attack his father he could do it in the village. The applicant responded that they can’t come into the middle of the town and attack someone. The Tribunal expressed its doubt about this and why leasing out the land would help prevent an attack on his father when he is still the owner of the land. The applicant responded that his father is still the owner and the land can’t be sold without the applicant’s signature but the point of his father not going to the land is so he doesn’t have to go to where he was attacked. The Tribunal asked the applicant again whether his father was still being pressured. The applicant responded that they have said to his father how long can the applicant stay away. He has to visit India at some stage and his mother has issues relating to her brain. He has not been able to visit. He has been postponing it.
The Tribunal does not find the applicant’s claim that his father leased out the land in order to avoid attack to be plausible. The Tribunal considers that if the applicant’s father were genuinely in danger from [Mr A] then leasing the land to a third party and not visiting it would not guarantee his safety as it does not resolve the claimed underlying problem. Further, the applicant’s answers to questions about whether his father was still experiencing problems with [Mr A] were vague and non-responsive which raises concerns for the Tribunal about the credibility of the applicant’s evidence and the genuineness of his claims.
The Tribunal asked the applicant how he knows [Mr A] is still interested in him after nine years and suggested it was likely that [Mr A] would have made alternative arrangements for expanding his business after such a long time. The applicant responded that nothing has happened because he hasn’t visited India since 2012. It all depends on his visit and what happens if he visits. Earlier in the hearing the Tribunal asked the applicant why he thought [Mr A] would harm him if he went back to India and the applicant responded that it was because [Mr A] wants to start a business on the land and that is being held up because he can’t get the land and he can do anything to get it.
The Tribunal finds the applicant’s responses to be unconvincing. If [Mr A] wanted to acquire the land so badly that he was prepared to physically attack the applicant and his father and brother in September 2012, it does not seem plausible that in the subsequent nine years he would not have engaged in any other aggressive tactics, even in the applicant’s absence, to pressure the applicant’s father to come up with a solution for him to acquire the land rather than waiting indefinitely for the applicant’s return. Combined with the Tribunal’s concerns expressed above about the credibility of other aspects of the applicant’s evidence, including the circumstances of the claimed attack, the injuries suffered by the applicant and whether [Mr A] is still pressuring the applicant’s father, the applicant’s responses raise doubts for the Tribunal about his credibility and the genuineness of his claims.
Fourthly, as referred to in paragraphs 5 and 10 above, the applicant provided a number of documents to the Department in support of his claims. The Tribunal has set out above its concerns in relation to the medical certificate dated [date] November 2019. In relation to the screen shots of calls to his mother, documents about his mother’s and brother’s medical conditions and certificates of his study in Australia, the applicant confirmed that these were not relevant to his claims of harm.
The Tribunal discussed with the applicant its concerns about the four affidavits he provided from his father, mother, uncle and the village Sarpanch, all of which are dated [date] November 2019. The Tribunal explained to the applicant that like the delegate, it is concerned that the affidavits were only obtained just before his interview with the delegate which is a long time after the claimed events and quite a long time after he lodged his protection visa application, which raises a concern about the genuineness of their contents. The applicant responded that he thought initially he had to just provide the basic documents. The Tribunal pointed out to the applicant that the protection visa application form, which he says he completed himself, clearly states that an applicant must provide as much information as possible about their claims, including documents where possible. The applicant responded that if he had a migration agent they could have told him and he could have provided them.
The Tribunal also expressed its concern about the identical wording in parts of the affidavits and the fact that they all refer to the brutal attack by [Mr A] and his gang and say the applicant was badly injured, which is inconsistent with the applicant’s claims in his protection visa application about the injuries he suffered. The applicant responded that the medical certificate was provided to the typewriters[3] who wrote up the affidavits and they relied on the certificate for the information and chose the words from the document. The Tribunal put to the applicant that an affidavit is supposed to contain information given by the person who is making the affidavit, rather than the typewriters and expressed its concern about the truthfulness of the content of the affidavits. The applicant responded that whatever documents he was given he provided and he didn’t have an agent at that stage.
[3] In this context, the Tribunal understood the applicant to be referring to people who are typists rather than a typewriting machine.
The Tribunal expressed an additional and separate concern, as did the delegate, about the contents of the affidavit of the Sarpanch. The Tribunal put to the applicant that it considered it implausible that the Sarpanch, who is an elected representative with an official role in the village working with government, would refer in an affidavit to their inability to take any action in respect of [Mr A] because of [Mr A]’s political and police connections because this was essentially admitting to powerlessness or corruption. The applicant responded that he has provided whatever was in his control and if there are questions about the credibility of the documents he is not sure how he can prove what he is saying is right.
The Tribunal has considered the applicant’s explanation that he provided whatever documents he could and that he didn’t have a migration agent at the time, but this explanation does not allay the Tribunal’s concerns. While the Tribunal has concerns about the timing of the provision of the affidavits, its main concern is about the truthfulness of the information they contain due to inconsistencies with other evidence given by the applicant. This concern is strengthened by the Tribunal’s broader concerns about the credibility of the applicant’s claims discussed above. The Tribunal does not consider the information in the affidavits relating to the applicant’s claims to be credible.
Fifthly, the applicant did not apply for a protection visa until April 2017 which is around four and a half years after the events that form the basis of his protection claim occurred.
In his written response to the delegate the applicant claimed that he didn’t apply for a protection visa when he arrived back in Australia from India in October 2012 because he had his student visa. He said his student visa was cancelled on 18 November 2015 because he failed to enrol in a registered course. At that time his father was going through hard financial problems and he didn’t have enough money to enrol in a course. He applied for an appeal in the Federal Court. He failed to attend that hearing because of family and financial tension and he was not able to hire a migration agent. He didn’t travel to India while he had a valid visa because of fear of risk to his life. He decided to go back to India in 2017 but his family said [Mr A] was still giving problems so he visited a migration agent who suggested a protection visa. He didn’t have enough money to pay the migration agent so he lodged the application himself.
In the Tribunal hearing, the Tribunal confirmed with the applicant the timeline of his migration history and discussed various aspects of it with him, including the types of visas he has held. The applicant confirmed that while he had mostly not used a migration agent he did hire an agent in 2014 to extend his student visa. The applicant said he came back to Australia in October 2012 because he had a student visa and he wanted to come back and finish his studies and his father sent him because of problems in India. He stated that he decided he feared returning to India during his visit there in October 2012. When asked why, in that case, he waited until April 2017 to apply for protection, after his Federal Court case about his student visa was dismissed in March 2017, he reiterated the information he gave to the delegate including that he wasn’t aware he had the option of applying for a protection visa and stated that once his student visa wasn’t there he took some advice and a friend and a migration agent told him about applying for protection. The Tribunal put to the applicant that given his migration history and contacts in Australia he could have found out about applying for a protection visa much earlier and that his delay in applying suggests that the reason he applied for a protection visa is because he is looking for a migration outcome where he can stay permanently in Australia and earn money rather than because he genuinely fears persecution if he returns to India. The applicant responded that if he had known before he would have applied. If someone moves to another place they go for better conditions of life.
Like the delegate, the Tribunal does not accept the applicant’s explanation for the delay. The evidence suggests that the applicant could have sought advice about applying for a protection visa a great deal earlier than he claims, including in 2014 when he says he hired a migration agent to extend his student visa. The applicant’s delay raises further doubts for the Tribunal about the genuineness of his claims and his reasons for wishing to remain in Australia.
In light of the above concerns, having considered the applicant’s evidence as a whole, the Tribunal is not satisfied that the applicant has been truthful in his account of the claimed events.
The Tribunal accepts that the applicant was born in [Village 1] village, Kapurthala district, Punjab state in India and that his mother, father and brother continue to reside there. The Tribunal accepts that this is where the applicant resided before coming to Australia on a student visa and where he stayed during his return visits to India in 2011 and 2012. The Tribunal accepts that the applicant’s mother suffers from some health problems and his brother is deaf. The Tribunal accepts that the applicant’s father owns a piece of land that is located approximately 3 to 4 kilometres outside [Village 1] village which the family has used for farming. The Tribunal is prepared to accept that the applicant’s father has added the applicant’s name to the property title.

The Tribunal does not accept that since 2012 a person called [Mr A] has been trying to force the applicant’s father to sell the family’s land outside the village to him for a low price, or at all, and the applicant’s claims that flow from this. The Tribunal does not accept that [in] September 2012, or on any other date, [Mr A] and others attacked the applicant, his father and his brother in a meeting with the village Sarpanch or on the family’s land, or anywhere else. The Tribunal does not accept that the applicant and his father and brother were injured in the claimed attack or that they had to go to hospital for treatment. The Tribunal does not accept that the applicant or any other member of his family reported the attack to the police. The Tribunal does not accept that the police, the village Sarpanch and local politicians were unable or unwilling to help them because of [Mr A]’s political connections or for any other reason. The Tribunal does not accept that [Mr A], or anyone else is continuing to pressure the applicant’s father about selling the land. The Tribunal is, with some reservation, prepared to accept that the applicant’s father has leased out the land to a third party, however the Tribunal does not accept that he did this in an effort to protect himself from [Mr A]. The Tribunal does not accept that the applicant left India in October 2012 because he feared for his life. The Tribunal does not accept that the applicant fears returning to India for the reasons claimed.
The Tribunal’s view is strengthened by the applicant’s delay in applying for a protection visa.
Does the applicant meet the refugee criterion?
In his protection visa application, the applicant claimed that if he returns to India and says no to [Mr A] he will be attacked again and his life is in danger. At the Tribunal hearing, the applicant claimed that he feared returning to India because [Mr A] is an influential person, the police don’t want to take action against him and he wants to get the land at a cheap price. He said [Mr A] can do anything to try to get the land and his life is under threat because [Mr A] has attacked them before. In light of the Tribunal’s findings above that a person called [Mr A] has not been trying to force the applicant’s father to sell the land, that the applicant and his father and brother were not attacked in 2012 by [Mr A] and his group and that [Mr A] is not continuing to pressure the applicant’s father about selling the land, the Tribunal does not accept these claims. Therefore, the Tribunal finds that the applicant does not face a real chance of serious harm arising from these circumstances.
Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to India now or in the foreseeable future that he faces a real chance of serious harm from [Mr A] or for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[4] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm from [Mr A] or for any other reason. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
[4] MIAC v SZQRB [2013] FCAFC 33
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rachel Da Costa
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 3394

24 August 2021

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Immigration

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