2101776 (Refugee)

[2024] AATA 3883

2101776 (Refugee) [2024] AATA 3883 (2 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Ejaz Khan (MARN: 0213478)

CASE NUMBER:  2101776

COUNTRY OF REFERENCE:                   India

MEMBER:Rosa Gagliardi

DATE:2 July 2024

PLACE OF DECISION:  Australian Capital Territory

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 July 2024 at 3:57pm

CATCHWORDS

REFUGEE – protection visa – India – political opinion – father’s affiliation with Congress Party – fear of criminal gangs – kidnapping – physical assault – family land dispute – mental health issues – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 56, 65, 424AA, 499
Migration Regulations 1994, Schedule 2

CASES

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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 January 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of India (a matter the Tribunal accepts) applied for the visa on 17 July 2019.

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

4. The applicant appeared before the Tribunal on 17 May 2024 to give evidence and present arguments.

5. The applicant was represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

6. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

7. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

8. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

9. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

10. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

11. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the applicant has a well-founded fear of persecution for reasons set out in s.5J of the Act, and there is a real chance that if the applicant returned to India now or in the reasonably foreseeable future, he would be persecuted for one of those reasons and whether he would suffer serious harm.  Alternatively, the Tribunal must assess whether the applicant meets the complementary criteria.

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

    Evidence at the time of application

14. The applicant stated that he had experienced harm in his country and that he had sought help and that he had tried to move to another part of the country to seek safety.  The applicant also stated he thought he would be harmed if he returned to India but largely referred the decision maker to refer to his undated statement which in the main states (as written):

    ….
    I come Australia on student visa to study ELICOS this [Course 1].

    I have both my parents and a brother living in xxxx, Haryana, India.

    We are a strict practising Sikh family, my family value their religion and traditions.

    I escape from India for the safety and better life.

    Problems in India

    Trouble first start in my village.  In my village few young men were involved and carry some activities for Mewat Gangs.  This Gangs were operating form Haryana, mainly involved in carjacking, drug supply and sale of local made weapons to Maoists.

    My elder brother and his friends were used by this gang to transport drug and weapon from Haryana to Punjab.

    My father was told that my brother is involved with Mewat Gang by one of his close friends from [Village 1]. 

    In or about mid-2013, my father start monitoring my brother and told my mother.

    My father was very respectable man and a member of the Congress Party of India.  We as a family always support and vote Congress.

    My father always wanted my brother to join the party and participate in the politics.  He told my brother to stop these bad things and come with our family and support politic for our beloved country.

    He said to us that we should stand up for our rights in India.  He believes that Bharatiya Janata Party (BJP) is an extremist Hindu party who’s trying to destroy the values of India.

    In November 2013, Police raided our home in search of drug and weapons.  It was embarrassing moments for the whole family.  Although nothing found from our home but my father was very angry with my brother.

    My father kicked my brother out of the home because of the embarrassment he caused for the whole family.  My mother was very upset and sad.  She developed sickness and always fight with my father to bring my brother back.

    In or about end of 2013, our house was attacked by a group of people who were looking for my brother.  They said that my brother failed to deliver their valuable goods including gold.  My father suspected that they were talking about the drugs perhaps.

    One of the guy said take his brother and keep him till he comes back with their goods.  I was taken by this group to an unknown place.  I came to know they were all belongs to a gang from Haryana.  I was beaten and asked questions about my brother and his whereabouts during the custody.

    I was held for two days and released.  They released me and said I got what I want.  I had no idea what happen and what they got.  They proceed to tell me next time your brother do this we cut of (sic) your limbs.

    After this I became known target because of my relation with my brother.  My father scared for my life organise a student visa and shortly after I escape India form harm.

    Recently my father call me and told me that my brother failed to give the gang members their goods and they raided our house in or around beginning of 2019 looking for me as collateral.  My parents are too old they didn’t take them.  My father said I can’t return to India back because my life is in danger.

    My father try locating my brother to try talking sense into him but he cannot find him.

    The Mewat gang is well connected and very influential member in India.  They have police in their pocket and politicians.  My father told me they call police to our house trying to arrest me and may try create fake criminal case to get back at my brother.  The gang will not stop until they get their goods back and want revenge on my family.  I cannot move anywhere else because I will still be unsafe.  Their strong criminal network runs across India and no place is safe considering how much I heard my brother stole.

    Grounds for protection

    I fear if I return to India there is threats on my life and I will be killed because Mewat gang will kill me because I am known target because of my brother stealing goods from them they want to use me as collateral.

    The police is very corrupt in India and they will arrest and harm me.

    I am unable to move to other parts of India without facing the same harm because the gang connection is widespread across the country.

    Because of the above reasons my life is in harm and on that basis I am seeking protection from India.

15. The Tribunal notes that as reflected in the departmental decision submitted to the Tribunal for the purposes of the review, the applicant was sent by the Department a letter inviting him under s.56 of the Act to provide additional information about some of the claims in his application and to provide clarification on particular points.  The letter advised that the applicant’s statement of claims lacked substantiating documentation and that no further details or documentary evidence to support his claims had been provided.  The letter also advised the applicant that, to assist the decision-maker in deciding whether to accept his claims were genuine, he could provide more information about what happened to him in India, including dates and locations of events.  The letter also advised the applicant that, if he could not provide documents or details of his claims as requested, he should provided a detailed explanation as to why he could not provide these documents, and that he should advise of any efforts he had made to obtain these.

16. As at the time the Department made its decision on 22 January 2021, the applicant had not provided additional information and provided no explanation as to why he had not.

    Evidence at the time of hearing with Tribunal

17. The applicant came to Australia in April 2014 on a Student visa.  He was supposed to finish his ELICOS studies and then a [Course 1], but he moved to a [Course 2].  The applicant stated that he went to India in 2015 for two weeks.  The applicants stated his parents lived in Haryana.  The applicant also had a brother in India.  His father was doing farming and his mother was a home maker.  The applicant stated that his brother had been out of contact with him for 6 months.  Due to his brother’s links with bad people, their father kicked his brother out of home.

18. The Tribunal noted that the applicant made several attempts to study and stay in Australia and asked why it was only finally on 9 July 2019, that he lodged his protection visa application.  He responded that the circumstances had changed.  He thought they were alright, but they were not.  They tried to sell their land to move to another area in Punjab or another state of India, but the government placed a restriction on selling the land.  The land had been allotted to his grandfather because he had served in the army.  In [specified year] the lease was to expire.  The applicant stated that the government told them they could have rights to the land if they paid.  But his family did not pay.  The applicant stated they had cultivated it so why should they pay.  The matter had been in court for 20 years and therefore they could not sell the land. 

19. The Tribunal asked what it was precisely that prompted the protection visa application when he did lodge it in July 2019.  The applicant stated that his father told him that he would be killed.  They had two issues going on.  His brother was linked to the Mewat gangs and the issue of ownership and use of the farming land was still before the courts.

20. The applicant stated that he did not have evidence of his family’s land case.  He stated it was all over the news.  He stated that he could provide such information but it was not specifically related to his family and their circumstances.

21. The Tribunal asked the applicant to detail the issues relating to his brother.  He stated that before he came to Australia in 2013, he went to school and his father was a member of the Congress Party in India.  Asked whether his father was a member of the Congress Party in that he paid fees to the party, the applicant replied he did not - he just voted for the Congress Party.  He clarified that essentially his father was not a member of Congress but was known in the village to vote for the Party.  Afterwards they came to know that his brother and close friends had a relationship with the Mewat gang who used them to supply drugs and alcohol to Haryana and Rajasthan.  There had been a miscommunication as the gang said that their brother had not provided the service he was supposed to.  After their father came to know the complete story about his brother, there was tension and their father asked his brother to move away in mid-2013.

22. The Tribunal asked that the applicant to provide police reports regarding his brother’s activities.  The applicant stated that his brother tried to get out of the gang, but “they” came to their house and picked him up and put him in a car with a bandage over his eyes.  It was then the applicant was trying to escape and he thought he should seek protection.

23. Asked to provide specific details about the incident involving the coercion into a car blindfolded, the applicant claimed that at the end of 2013, he was at his home and they came and got him.  The applicant stated these people were well known to the police, but his father did not call the authorities because they would not help as the police were corrupt.  The Tribunal expressed incredulity that his father would have just watched on as he was being kidnapped without complaining or attempting to seek assistance from the authorities. 

24. Asked where the applicant was taken, he stated it was to a farmhouse. They threatened him and asked him where his brother was and where were the packages. The applicant stated that they took him as collateral. The Tribunal asked the applicant to detail roughly the length of the journey in the car with his kidnappers.  The applicant stated it must have been 4 to 5 hours. The Tribunal asked whether he had, for example, asked them to stop and he responded they were not listening to anything. They were drugged. The Tribunal attempted to ascertain the identity and number of persons involved in his kidnapping and the applicant responded that when they picked him up at his home there were four people, but on arrival at the farmhouse there were more. The applicant stated he had no idea where he was. The Tribunal asked how he knew these people were from the Mewat gang and he responded they told him. Asked to provide details about the vehicle he was driven in, the applicant responded it was a van.

25. The Tribunal asked whether the applicant had ever spoken to a psychiatrist in Australia and the applicant stated that he had sought assistance for anxiety but not about his problems in India. The Tribunal asked why he had not told his professional carers that he had been kidnapped. The applicant responded but what would they do? At that time, he was new to Australia, and he just told them he was having anxiety problems and that he had family issues. The Tribunal noted that persons such as psychologists attempt to arrive at the source of a person’s difficulty and probe by asking questions about his life. It seemed incongruent given his symptoms they had not sought in the context of his family issues, to try to find out what these were. The applicant stated they asked certain things but not much. The applicant stated he had been prescribed medications for anxiety. Currently, he stated he was frightened about what was to come, thinking of the situation that his family could not change their residence in India. The applicant stated he set up work in Australia – a [product 1] business - so his condition was a bit better now.

26. The Tribunal noted that the applicant was resourceful and could go and work anywhere in India. The applicant stated that “they” were active all over India. He checked in the news and spoke to his father, and he stated that the condition was still the same, even though he had been in Australia since 2015.

27. The Tribunal encouraged the applicant to narrate what occurred after his capture by the kidnappers. The applicant stated that they drove him back and stopped after 10 minutes. As they dropped him off, they told him that if you go to the police, you know what will happen. 

28. Asked what happened at the farmhouse precisely, the applicant stated they beat him with sticks.  The Tribunal asked where precisely they beat him, and he replied that they put him in a room and beat him with sticks and something like an iron baton which hurt his knee.  The Tribunal asked what injuries he had sustained from the beatings, and he said most of the injuries healed, but his right knee continued to hurt him.  The Tribunal stated that had he been beaten vigorously with sticks and an iron baton then he might have sustained injuries to his head.  The applicant replied they never hurt him on his head.  The applicant stated that they did not hit him with sharp objects, and he did not bleed.  The injuries were not life-threatening.  The Tribunal stated that an iron bar would do a lot of harm to the body even if there were no scratches and asked whether he had sought medical assistance after such a beating.  The applicant responded he went to the doctor for medication and the Tribunal asked for evidence he did so.  The applicant responded no; he had told the doctor he had fallen from his motorbike. 

29. The Tribunal asked how many people were involved in beating him.  He stated about ten people.  The Tribunal stated that was a lot, so it seemed incredulous that he was not hurt seriously.  The Tribunal then sought to elicit information about what else had happened at the farmhouse while he was there and he stated that “they” went out and partied and drank, and then beat him again.  When asked about his surroundings at the farmhouse, the applicant that the farmhouse might have been like a store house for drugs, but he had not seen any drugs.

1. The applicant continued that when they dropped him off there was a man selling things from a trailer.  He told him not to go to police.  He said it was a dangerous area and gave him money to catch the bus home.  The applicant thought this man might have been linked to those gangs.  The Tribunal stated that it thought it was odd that someone associated to his assailants would try to assist him get home.

2. The applicant stated he told his father to go to the police, but his father answered you know what will happen if we go there.  The Tribunal asked the applicant how old he was when such a traumatic experience had happened to him. The applicant stated that the kidnapping happened around 2013, when he was [age]. 

3. The Tribunal asked what the significance of his father being a member of Congress was. The applicant stated that the ruling Baratiya Janata Party (BJP) might be against them.  The Mewat gang mostly supported BJP.  His father’s affiliation with Congress also placed him at risk.  The Tribunal asked whether the applicant’s parents had ever been harmed by the Mewat gang and the applicant responded no.  They met his parents to have meetings to try and resolve things, but they were old and maybe that is why they did not attack them.

4. The Tribunal noted that the applicant had stated that the police had raided his family home.  The Tribunal noted that the police would have evidence by way of records of the raid and what they were looking for.  The Tribunal asked the applicant to provide any such evidence from the police to support his claims.

5. The applicant stated he had tried to tell his brother he would provide financial support so he could get out of the gang.  Asked whether the police had ever arrested the applicant’s brother, he stated they never arrested him because they were part of it.  The Tribunal noted that if the police were not determined to arrest him, they would not have raided his home. 

6. Asked how long the applicant had been held captive by the kidnappers, the applicant stated that he thought he was held at the farmhouse for two days.  The Tribunal asked whether they fed him, and he stated they did.  Asked why they would have fed him if they were punishing him, the applicant responded they gave him water and bread and told him to eat otherwise he would die of hunger.  The Tribunal asked whether he was restrained, and he said his arms were tied behind his back.  He did not try to escape as it was an unknown place.

7. The Tribunal attempted to gauge the state of his relationship with his brother currently.  The applicant stated he had kept in contact with his brother by mobile, but his mind was not in a good condition due to drug use.  His brother could not get out of the gangs because he would be harmed.  The Tribunal asked whether his brother had told him what was happening to him.  The applicant stated he did not provide his location or anything like that.  He just stated, let me do my things.  The Tribunal asked whether his brother could have been killed by these gangs given he had not been in contact with him for six months now.  The applicant responded he told him if he needed anything to contact him but if he was going to continue with the gangs, he would not assist.  After that the applicant and his brother did not speak.

8. The Tribunal asked what he thought would happen to him when he returned to India.  The applicant replied they might follow him and ask him to join them.  When he was kidnapped, they told him it was better if he joined so he could lead a lavish lifestyle rather than go against them.  The Tribunal asked whether he had evidence that any of these events had happened to him.  He said it was a long time ago. 

9. The Tribunal asked the applicant whether he had evidence of his clinical notes and discussions with his mental health care workers that he had at least referred to his difficulties in India.   The applicant stated that he had not raised it during sessions.  The applicant stated that things were so bad for him at times he would leave his unit in Sydney to stay outside because he would get anxious and fearful.

10. The Tribunal asked whether the applicant’s friends knew what had happened to him.  The applicant stated that only one person knew what had happened to him in a more fulsome way.

11. The Tribunal asked why he returned to India in 2015 if he feared for his life.  The applicant stated that his mother was suffering depression at the time because his father was telling his mother that it was her fault that his brother was in trouble.  The Tribunal asked whether the applicant could provide evidence by way of medical notes that his mother was dealing with depression because of the stressors in her family relating to her son who it is claimed joined the Mewat gang.  The applicant stated he would attempt to obtain these.

12. The applicant stated he only returned to India in March 2015 for two weeks.  He saw his mother and stayed at home.  The Tribunal asked whether the gangs had approached him during this time, and he stated no, he did not meet anyone and did not talk to his brother either.  The Tribunal noted that even though the applicant claimed he feared for his life, he continued to pursue a student visa which did not guarantee him permanent protection in Australia.  The Tribunal asked the applicant why he did not lodge a protection visa on his first arrival in Australia given his circumstances in India.  The applicant stated that he thought the conditions might ease there and they (his family) would be able to relocate but the court case remained ongoing, and, in any event, he could rely on his student visa to remain in Australia. 

13. The Tribunal noted that the Mewat gangs were all powerful so it appeared incongruent that they would allow him to return to India and then leave without difficulty.  The applicant stated it was a short period and after that he did not return to India.  The Tribunal noted that if the applicant was able to enter India and leave without the Mewat gangs noticing, why was it not possible for him to go to a larger city in India and start a new life as he had done in Australia.  The applicant stated that the gangs had members all over India.  The Tribunal expressed incredulity that the gangs were so sophisticated as to be able to monitor his every movement within the country yet were not aware when he was entering and leaving the border in Inda.  The applicant stated that he could not relocate due to the farm issue.  He said he could be away (within India) for a certain period but not for life.  It was due to his finances and having to settle down in a new place.  He could do so for one or two months but then they would find him, and he would face the same troubles. 

14. The Tribunal stated that the problem appeared to be localised in the sense that it would be the Mewat gangs operating in his home area that would be interested in him and that he could re-establish his life in a big city in India.  The applicant stated that the problem could return, and he would not be able to do anything.  He stated that he also might be in more danger because people will perceive him as wealthy because he was overseas and would think he had money. 

15. The applicant stated that his brother was linked to those Mewat gangs and his brother might get in touch with him and then the gang members might come to get him.  The Tribunal expressed it was odd that his brother would not try to recruit him directly.  The applicant stated that his brother would be the conduit.  The applicant stated that if he refused, they might harm him.  The police could not do anything as they were all corrupt and the village police station was full of drugs.

16. The applicant stated that the BJP operated with the Mewat gangs as they wanted to create India as a Hindu state.  The applicant was Sikh.  The Tribunal asked whether there was country information linking the Mewat gangs and the BJP.  The applicant stated that the gangs were run by political members.  The applicant stated that the Mewat gangs were mostly Muslim.  The Tribunal noted that the BJP was not pro-Islam and supported Hinduism as a state religion.  The applicant stated that the Tribunal should have reference to the BBC network reports which depicted true stories rather than other channels.

17. The Tribunal asked if the applicant’s brother was a Sikh, why would he get involved in an organisation that did not support Sikhs.  The applicant stated that his brother had been friends with these people in high school and they provided him with nice things, but after that if they tried to withdraw from the gangs they would harm or kill their families.  The Tribunal noted that the country information appeared to show that the police were fighting the gangs, everywhere including in the Mewat area where the gangs originated.  The applicant stated that he did not live in the Mewat region itself. 

18. The applicant stated they put beef at houses where beef was not permitted and they beat and killed them in an attempt to scare them. 

    The applicant’s family land issues

19. The Tribunal asked the applicant whether his father generated an income from the land and the applicant stated, yes, they would need to obtain permission and they could sell their produce.  The Tribunal asked the applicant to articulate what harm he feared from the ramifications of the court case in which his parents were attempting to take the land as freehold.  The Tribunal asked how any decision could affect the applicant and his family.  The applicant stated that recently [a local official] spoke about putting through [legislation] so that persons in the applicant’s family’s circumstances might be able to gain unfettered ownership of their land.  The applicant stated that a member of Parliament came to the house in March 2024, to tell them it had all gone through, but his father checked and found no such discussion regarding freehold had occurred.  It was all just propaganda to win the elections.  The Tribunal stated that perhaps if his father was legally represented in respect of the land case in court, the lawyer could write to the Tribunal setting out exactly what the legal matter entailed.

    S.424AA matters put to the applicant at hearing

    1^st matter

20. The Tribunal advised the applicant that it was aware that he had asked the Administrative Appeals Tribunal (AAT) to review a decision by the Department to cancel his student visa, and the AAT affirmed that decision to find that the student visa should remain cancelled on 11 October 2017.  In assessing whether the applicant’s student visa ought to be cancelled the previous Tribunal was required to consider the degree of hardship, whether psychological or financial that he would face because of any cancellation of the visa.  Specifically, the Tribunal was to consider the degree of hardship that may be caused to the applicant and any family members by way of financial, psychological or emotional or any other hardship as a result of a cancellation decision.

21. The Tribunal explained that in submissions to the AAT at that time, the applicant’s representative had stated that the applicant’s family in India was suffering because the applicant has spent thousands of dollars on his studies in Australia.  His family was supporting him and had high hopes for the applicant.  It was argued that if the applicant were to return to India without a [degree], he and his family would suffer greatly.  Further, the Tribunal in making its decision on 11 October 2017, considered that if the applicant’s student visa were to be cancelled, it would disappoint his family.  The AAT at that time also observed, “The Tribunal understands that the applicant has spent money on various courses in Australia and he has completed a number of courses so the money spent has achieved qualifications, albeit not necessarily the ones the applicant had stated that he wanted to pursue”.  Furthermore, the AAT observed that the cancellation would mean the applicant could become unlawful and could be detained.  It was also noted that the applicant would have limited options to apply for further visas in Australia and may be required to leave the country.

22. The Tribunal put to the applicant that this information was relevant to the review because at that point the applicant had the opportunity to tell the previous Tribunal that he could not go home because he feared serious harm.  Instead, the applicant only referred to having spent so much money and that he would be disappointed if his visa were cancelled.  It was also evident that at that stage he had limited options for remaining in Australia.

23. The Tribunal explained that it were to rely on this information, it would find that he did not have a well-founded fear of persecution and that his claims for protection were made solely for the purpose of achieving a migration outcome, and that it would not accept the applicant’s claims that something as serious as kidnapping occurred, otherwise he would have beseeched the Tribunal not to cancel his visa due to his fear of returning to India.

24. The applicant did not avail himself of a break to respond.  He stated that he consulted his lawyer who told him that the Tribunal would only be looking at whether his student visa should be cancelled and told him not go into other situations as they would not be able to do anything for him.  The Tribunal noted, however, that rather than reviewing the cancellation, he could have lodged a protection visa application.  The Tribunal emphasised that if the applicant had feared for his life, he would not have pursued an inappropriate mechanism for seeking permanent protection.  The applicant again stated that he thought his conditions might have changed and he would have finished his Bachelor and gone back to India. 

25. The applicant acknowledged that the student visa was not a permanent visa that would provide permanent refuge.  He thought maybe he could go back to India, sell their land and move out of that area, but it was not happening.

    2^nd matter

26. The Tribunal noted that during the course of assessing whether the applicant’s student visa ought to be cancelled, the previous Tribunal was required to assess the circumstances in which the ground of cancellation arose and whether there were any extenuating circumstances beyond the applicant’s control that led to the grounds existing, such as the breakdown of a relationship and whether the relationship had broken down as a result of family violence, for example.   The applicant had stated he had been unwell since February 2016 suffering from back problems.  He visited a doctor who advised bed rest for two months.  The applicant had also suffered from depression because he was unable to study and work during this time.  A doctor prescribed medication for the treatment of severe anxiety and he was undergoing treatment for depression.  It was reported that the applicant now felt better and had gained admission and that previously he had not been able to study due to illness (the extenuating circumstances).  He advanced that he was a genuine student and wanted to build his career. 

27. The Tribunal noted that this information was relevant to the review because it appeared that the applicant was having serious mental health issues but when asked about extenuating circumstances, he had not referred to any serious problems he was having in India and that he had been kidnapped.  The Tribunal stated that if it relied on this information, it would find that it had no evidence that prior to lodging the protection visa application the applicant had a well-founded fear of persecution India.

28. The applicant again did not avail himself of a break prior to responding. He reiterated that his lawyer told him to get his student visa reinstated and not to advance any other grounds. 

29. The applicant confirmed that he stopped seeking medical assistance for his mental health problems in 2016. 

    3^rd matter

30. The Tribunal noted that when the previous Tribunal made its decision not to reinstate the applicant’s student visa, instead of lodging a protection visa application the applicant sought judicial relief to have his student visa reinstated.  This is even though the applicant was now claiming that he had pressing and genuine persecution claims.  The Tribunal noted that on 9 July 2019, the court dismissed his appeal, and it was on that very day, he lodged the protection visa application.

31. The Tribunal explained that this matter was relevant to the review because the applicant only lodged his protection application when all his options had narrowed and that if the Tribunal relied on this information, it would find that had the applicant held a genuine fear of persecution he would not have waited until he exhausted most of his avenues for remaining in Australia to lodge a protection visa application.

32. The applicant again stated he did not have an intention to stay in Australia in any event.  He was waiting for the circumstances to change in India, and he was supposed to finish his Bachelor’s degree.  He stated it would be good if they could move from the place they were living, but they could not.  The applicant stated he thought it was better for him to focus on his study in Australia to obtain a Bachelor’s degree.  He was planning to go back to India if conditions eased. 

33. The Tribunal highlighted that if the applicant genuinely feared for his life, it would not have made sense to waste resources at the Tribunal to try to re-obtain his student visa and further pursue this matter judicially.  The applicant responded that he was alright now; he worked, and it was ok.  He had his business. 

34. The Tribunal wrote down for the applicant the kinds of documentation to support his case, including:

    ·Any newspaper articles regarding the difficulties he had in India regarding his family’s land

    ·Evidence of any lease conditions on which the land had been granted to his family

    ·A summary by the lawyer representing the family in litigation regarding his family’s land.

    ·Doctor’s evidence referring to the cause of his mother’s depression.

    FINDINGS AND REASONS

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

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

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

    The applicant’s psychological issues

1. The Tribunal accepts even in the absence of supporting medical information that the applicant has suffered serious depression and anxiety and for a period during his education in Australia, he was being treated for his mental health difficulties.  When the Tribunal attempted to elicit from the applicant whether he had appraised the people caring for him medically of the serious trauma he claimed occurred to him in India, such as being kidnapped and detained for two days as collateral for his brother who had wronged the Mewat gang, the applicant told the Tribunal that he had not told the counsellors that he feared for his life in India and did not talk to them about the specific traumatic events that occurred in India. 

2. The Tribunal is concerned, however, that while the applicant did suffer from mental health difficulties in Australia, and may still be doing so, it has not been for the reasons claimed and that the applicant was merely attempting to explain away the reason for a lack of probative medical evidence to support his claims, by stating that he had not mentioned the specifics of issues in India to his medical carers, only stating he had “family issues”. 

3. The Tribunal accepts that the applicant was new to Australia as claimed but as the applicant had the wherewithal to seek assistance for mental health difficulties, the Tribunal does not find the applicant’s explanation for why he did not disclose the claimed major trauma he had experienced in India credible.  It is true that the psychologist would not have been able to do anything to change his circumstances, but the Tribunal does not accept the psychologist would not have attempted to assist the applicant deal with any symptoms from a major trauma such as kidnapping and that he/she would not have sensed that the applicant had experienced events out of the ordinary, had the applicant indeed been kidnapped in India.

4. Hence while the Tribunal accepts the applicant has struggled in Australia with his mental health and his studies, the Tribunal does not have evidence to point to the mental health issues experienced by the applicant in Australia as being a direct consequence of a deeply fear-inducing event such as kidnapping and assault, and the Tribunal rejects that his health issues were caused by any such events in India because the Tribunal does not accept that these ever occurred (see below).

   Timing of the protection visa application

5. The applicant gave unconvincing evidence in relation to why he waited so long after his arrival in Australia in April 2014 to lodge a protection visa application on 17 July 2019 (over 5 years after his arrival) instead going through a series of steps to have his student visa reinstated after it was cancelled by the Department.  The applicant has stated that his migration agent at the time told him to pursue his student visa and not to raise any other issues.

6. The Tribunal has serious concerns with the applicant’s explanations for why he did not lodge a protection visa application on at least the Department’s cancellation of his student visa, if not immediately on arrival in Australia a second time in 2015 - that he thought conditions in India might ease and that it was his intention to return to India after completing his Bachelor’s degree (which he never was able to complete).  This is even though at that stage the applicant claims he had been kidnapped in India some time in 2013 as a young man and had been threatened and assaulted by members of the Mewat gang. 

7. The Tribunal does not find it plausible that the applicant would leave it to chance by relying on having his student visa application reinstated if he had a deep and abiding well-founded fear of persecution.  The applicant’s migration history instead indicates that the applicant was able to navigate the migration system until his options for remaining in Australia had narrowed considerably.  The Tribunal accepts the applicant wanted to achieve a Bachelor’s degree but not having attained this degree, continued to undertake various Diplomas to maintain a continuing presence in Australia and not because of a fear of serious harm under s.5J.  The Tribunal considers that the applicant’s delay in lodging a protection visa application undermines the applicant’s credibility.

8. The applicant also returned to India in early 2015 because as he claims his mother was unwell and he remained in his house the whole time so as not to attract the attention of the Mewat gang.  The Tribunal does not accept the applicant’s claims that he evaded the notice of the Mewat gang just because he stayed at home.  The Tribunal finds that had the Mewat gang wanted to find him they would have done so by going to his home then.  The fact the applicant was not of interest to any Mewat gang members in early 2015, confirms the Tribunal’s findings that the applicant was never of any interest to such gangs on account of his brother’s membership or for any other reason.  Had the applicant had a genuine fear for his life he would not have departed Australia on having found safety from such criminals so early after his arrival in Australia or at any time.  It is difficult to see how given the applicant claims he had been kidnapped under duress that he would have no qualms about returning to his home country in 2015 when it is claimed he was of interest to the Mewat gangs and that he thought conditions might have improved.

   Matters put to the applicant under s.424AA pertaining to previous interaction with AAT regarding cancellation of his student visa

9. Moreover, and significantly, the Tribunal finds it implausible on being asked to give expression to a previous Tribunal to any extenuating circumstances as to why his student visa should not be cancelled, that the applicant only spoke of having suffered depression and anxiety because his back problem prevented him from attending classes.  The applicant when this matter was put to him continued to say that he had been led by his migration agent not to mention his situation at home and to concentrate on having his student visa deemed not cancelled.  Even if the applicant had thought it was best to follow flawed advice, the Tribunal does not accept that spontaneously the applicant at hearing with the previous Tribunal did not present his particular claimed circumstances in India because he feared for his life.  This matter could only have enhanced his prospects of having his student visa reinstated given the claimed enormity of such events.  Instead, the Tribunal finds that the reason the applicant did not mention his situation in India regarding his brother being a member of the Mewat gang, is because such circumstances never arose.

10. Instead, the Tribunal finds that the hearing with the previous Tribunal would have presented an opportune time to express that he had difficulties with his studies because of his mental health issues that were directly related to his fear about his safety in India, and because he had suffered mental and physical assaults, threats, including kidnapping and false imprisonment for two days by members of a criminal gang.  The Tribunal would also have expected that had the applicant experienced the matters he claims in India, he would have attempted to support these with medical evidence of any reasoning by a medical profession as to what had caused the applicant’s depression and anxiety being due to extenuating circumstances in his home country, that had involved being kidnapped for the purposes of that initial hearing regarding cancellation of his student visa.  The Tribunal does not accept that the applicant allowed himself to be duped by a migration agent into concealing what were claimed compelling circumstances that had occurred in India.

11. The Tribunal finds instead that the applicant’s claims of land disputes with the government of India, kidnapping and assault by members of the Mewat gang to have been fabricated when the applicant had no other option for remaining in Australia.  The fact that the applicant had not told a psychologist or counsellor about these events when he was having a psychological crisis and during the course of the hearing regarding his student visa cancellation, is consistent with the Tribunal’s findings that the applicant’s claims only arose when his options for remaining in Australia had narrowed.  The Tribunal places significant adverse weight on the applicant not disclosing to medical persons or a previous Tribunal in Australia, when the openings were there, that he had experienced such significant harm in India prior to lodging his protection visa application.

    Claim regarding the applicant’s family’s land in India

12. The applicant indicated that his family held farming land granted to them by the government due to his grandfather’s involvement in the army.  According to the applicant’s testimony this land was not held by the family on a freehold basis.  They could not sell it, even though they were able to generate an income from the produce derived from the land.  Even then the applicant claimed that they had to obtain permission to be able to sell their products.  The applicant on several occasions stated that his family wanted to leave their home area due to the difficulties with his brother’s involvement in the Mewat gangs but because they had no right to sell it, they could not relocate, and his family had been in litigation with the government over this matter for 20 years now. 

13. The Tribunal asked the applicant to provide the relevant documentation showing the stage at which the judicial matter was at currently and how it was progressing.  The Tribunal would have expected that given the action had allegedly been in the courts for 20 years that there would be an abundance of paperwork to present to the Tribunal. 

14. The applicant has finally submitted a statement stamped by [the local sarpanch from] [Village 1], [named], dated 28 June 2024, and with the stamp of a Notary of India.  A sarpanch is the elected head of a village in India.[1]  The letter confirms that who the Tribunal surmises is the applicant’s father, [father’s name] and his wife, could not sell their land and house because of Case [Number] as the case was pending in the High Court of (Punjab and Haryana High Court Chandigarh).  The Tribunal has questions, however, as to whether this document was indeed submitted by the sarpanch on the basis of his own knowledge of the circumstances of the applicant’s claimed family land matters, or whether he/she has taken the time to make an assessment of the veracity of these claims via the High Court.  The Tribunal has concerns that the sarpanch may have simply signed off on and reported on what the applicant told him/her as did the notary, rather than having a firsthand knowledge of the issues facing the applicant’s claims.  A notary does not confirm whether what is contained in a statement is correct by any means of evaluation or investigation.  The Tribunal does not place significant weight on this document as corroboration of the applicant’s claims.

    [1] Collins Dictionary, Definition of ‘sarpanch’, SARPANCH definition and meaning | Collins English Dictionary (collinsdictionary.com). 

15. The Tribunal finds it difficult to accept that had the applicant’s family been in litigation with the government of India to enable the [applicant’s] family to dispose of their land that the applicant would not have primary litigation documents and that the solicitor representing the family would not have been able to provide a detailed summary of the case.  Indeed, the applicant stated at hearing that he would be able to make these available to the Tribunal.  The Tribunal accepts that applicants do not need to corroborate their claims to be believed, but together with all the other difficulties with the applicant’s claims, including the timing of his protection visa application, the Tribunal finds that the applicant has not established that his family had any adverse profile with the authorities on account of being in litigation with the government or for any other reason under s.5J.

16. The Tribunal finds it perplexing that the applicant told the Tribunal that on the one hand his family’s aim was to sell their land so that they could move to another area where they would not be confronted by the issues of the Mewat gang.  Yet when the Tribunal asked the applicant why he could not relocate himself as a single man away from his home area he insisted that he would not be able to live away from his home area for any length of time.  The applicant seemed to indicate that any move on his part was predicated on his family moving with him to another area after the sale of the land.  While the Tribunal appreciates that it might have been preferable for him to move with his family members to another part of India, the applicant has lived in Australia for a lengthy period without his parents and has also managed to start his own business.  The applicant’s contradictory evidence about relocating within India undermines the applicant’s credibility pointing to the applicant wanting to achieve a migration outcome to Australia, and not because he has a well-founded fear of persecution. 

17. Without probative evidence that the applicant’s parents were attempting to move away from their home area, because as claimed they were concerned about Mewat gangs who wanted retribution for the applicant’s brother not having delivered goods or services as they had requested, the Tribunal finds that the applicant’s parents, nor the applicant ever faced a situation where they wanted to move from their home area on account of fear of Mewat gang members or for any other reason under s.5J.  The Tribunal rejects that the applicant or is family has ever been in dispute with the government or any other non-government agent regarding land.

    Claims the applicant will be targeted on return to India on account of being a sibling of a member of a Mewat gang who is wanted by the Mewat gangs because he had not followed their directives.

18. The Tribunal is not convinced by the lack of specific detail in the applicant’s account about his brother’s activities as a member of the Mewat gang and why the applicant would be the target of the gang’s anger over what he claims were illicit substances, materials, weapons, or gold his brother should have handed over to the gang.  While the Tribunal can appreciate that the gangs might suspect the applicant of concealing where his brother was, given the nature of their all-encompassing might as described by the applicant, it seems incongruent that they would be able to find the applicant, but not the central protagonist of their concern, that is, the applicant’s brother. 

19. The applicant was unable to provide a detailed timeline for when certain events occurred regarding his brother’s involvement with the Mewat gangs, generally stating that he became acquainted with the gangs during high school but was unable to provide any convincing narrative about how his brother continued to play a role, and what role precisely, in the gangs.  The applicant only indicated that his brother was lured with lavish gifts and the promise of a luxury lifestyle but was not able to provide specific details.  The applicant has described the Mewat gangs as an amorphous group with little detail provided to persuade the Tribunal that the applicant’s brother had indeed been a member of such gangs.

20. The Tribunal accepts that the Mewat gangs do exist and operate as criminal gangs:

    In a district infamous for being the base of NCR’s (national capital region’s) most notorious gangs, government’s indifference and social exclusion a bigger reality than local crime.

    In the foothills of the Aravallis 60 kilometres south-west of Gurgaon, sleep town of Mewat has the knack for hogging the headlines for all the wrong reasons.

    Its claim to fame, apart from the Islamic preachers (Tablighi Jamaat), is the notorious Mewati gangs – criminals who have been giving police from neighbouring areas, including the national capital region (NCR), sleepless nights.

    Before the arrest of suspected al Qaeda operate Abdul Sami from Mewat in January this year, in July 2014 Delhi Police claimed to have arrested a suspected to Lashkar-e-Taiba operative and Mewat resident Abdul Subhan for alleged involvement in influencing youths.

    A few months ago, Mohammad Shahid an Qari Rashid, both local Imams and residents of Mewat were also arrested for alleged terror links.  Though none of these three have been convicted so far, concern over Mewat’s ‘terror’ connection was raised.

    Notorious Mewati Gangs

    Mewat’s crime rate is the lowest in Haryana but nearly 100 gangs are active in the areas bordering the district.  Thirty are big gangs whose livelihood depends just on criminal activities.

    “Earlier they used to be simple cattle catchers or bike thieves.  Now, they have become more organised and indulge not only robbing trucks on the highways, but also demand ransom from the families after kidnapping the drivers”, said Rajinder Singh, assistant commissioner of police (ACT), operations, (South District) who dealt with the Mewati gangs for years.

    In some cases, the gang members negotiate with victims after stealing vehicles that they return on half the original cost, he said.

    Delhi Police have a list of 150 criminals hailing from this town which they shared with the police in Mewat.  The police of Alwar in Rajasthan have also provided names of 95 active Mewati dacoits.  Police have arrested more than 600 proclaimed offenders in the last two months.
    ….
    “If some police party stops them, they would attack it with stones and firearms”, said Virender Jain, station house officer, Vasant Kunj (South) who was instrumental in arresting an accused in the 2010 Dhuala Kuan gangrape case from Mewat.

    Given the violent means the gangs use, cops are extra careful.  Some cops fear intercepting them and those who do, face repercussions.

    “They become very violent if a police party intercepts them.  At times, cops in some remote areas had to seek cover for safe passage”, ACP, Rajinder Singh explained.  Another reason for their impunity is they used deserted roads termed “chor raaste” by police.

    Singh and Jain were investigation officers in Dhaula Kuan gang-rape case in 2010.  A crackdown on gangs followed.

    With help from intelligence agencies from last September to November, police blacklisted more than 50 people who came from various countries to Mewat as part of Tablighi Jamaat – the global Islamic movement that originated from Mewat’s Jamia Arabia Moin-UI-Islam madrasa in 1927 and now has a presence in over 150 countries.

    Socio-economic factors

    Spread over three assembly constituencies – Nuh, Firozpur Jhirka and Punhana on Delhi-Alwar road, Mewat is 75% Muslim – most of them farmers.

    A recent government survey revealed Mewat, with a population of 10 lakh (?), is the least-developed district of Haryana.  In standard of living, education and health, the district lags way behind others in Haryana.

    With a literacy rate of 56.1%, Mewat is the least-literate district.  Of the 1,62,000 students registered in primary schools reached class 8 and only 12,000 passed class 10 last year.

    “Part of the problem with Mewat is that there are no proper schools.  No teacher wants to go to Mewat…
    …
    Health services are no better….

    For farmers, rain is the only source of water and hence there is only one crop per year.  Worse, the ground water is saline and there are no canals.  Very few farmers have tube-wells.

    In absence of livelihood avenues, youth often indulge in petty crimes such as auto lifting.  There are incidents of looting trucks and extorting money…
    ….
    

    [2] ‘Gangs of Mewat: Govt indifference, neglect bigger realities than crime’, Gulam Jeelani, Hindustan Times, 29 February 2016, Gangs of Mewat: Govt indifference, neglect bigger realities than crime | Latest News India - Hindustan Times. 

    Every government that came to power in Haryana has neglected the region, is the common grudge among people.  All the three elected MLA’s of Nuh, Firozpur Jhirka and Punhana, are Muslims.  Moreover, two of the MLA’s come from the family that has been in power for three generations….[2]

1. The Tribunal appreciates that the above report is now outdated but it provides a context for how the gangs arose in the Mewat area – context which the applicant was unable to provide the Tribunal to persuade it that the applicant’s claims about his brother being a member of such a gang are genuine.

2. The applicant confirmed that he is not from the Mewat area, and the Tribunal accepts that the gangs operate outside Mewat. Nonetheless, the Tribunal found the applicant’s account of the operations of the gangs general and sweeping, leading the Tribunal to have serious questions about whether anyone in his family was ever involved in the Mewat gangs.  This is particularly so as the applicant’s evidence did not persuade the Tribunal that the events he claimed occurred to him and his family, related to them specifically, and had been lived by them.

3. The applicant has been provided with ample opportunities to submit verifiable evidence that his brother was involved in the Mewat gangs and that his brother was of interest to the police, given the applicant claims his home was raided some time in 2013 by the police because they believed his brother’s family might have been harbouring drugs stolen by his brother and indeed harbouring the applicant’s brother. 

4. When the Tribunal put to the applicant that if the police were attempting to find illicit substances in his home it would indicate that the police were attempting to locate his brother to punish him for any misdemeanours as a result of his membership of a Mewat gang, and by implication would provide him and his family with protection, the applicant then revised his account to state that even the police might have been involved (with the illicit activities of the Mewat gang). 

5. The Tribunal has asked the applicant to provide documentary evidence the police might have produced while reporting on such a raid or any other evidence to support his case that his brother was of interest to the police in India.  The applicant has provided no such probative evidence that his brother was of adverse or other interest to the authorities of India for his role in criminal gangs or any other outlawed activities.  Importantly, the applicant has not provided an explanation as to why he has not provided such information.

6. It follows that the Tribunal does not accept that the Mewat gang would call the police to have the applicant arrested and may create a fake criminal case against the applicant to get back at his brother.  The Tribunal also does not accept that the Tribunal does not accept that the applicant’s brother had failed to provide the gang with missing goods, and in 2019 raided the applicant’s house looking for the applicant as collateral or that the applicant’s fear consequently intensified when his father told the applicant not to return to India because his life was in danger.  The Tribunal does not accept these events ever occurred in 2019 or at any time but finds instead that the applicant was attempting to explain away why it had taken him over 5 years since his arrival in Australia to lodge a protection visa application and waited until 2019 to do so. 

7. While this matter is by no means determinative of the review, the Tribunal notes that the applicant’s father who it is claimed has the applicant’s welfare at heart, did not spontaneously provide a letter of support confirming the applicant’s claims.

8. The applicant has stated that the police collude with the Mewat gangs.  While country information shows that the police in India are not adequately equipped to fight crime due to a shortage of funding, and that there is a possibility that some police might be working in collusion with gangs due to corruption,[3] overall it appears that the police are attempting to crack down on the scourge, see 5 of Mewat gang behind kidnappings, armed robberies held in city (newindianexpress.com), Mewat-based gang behind ATM heist busted; kingpin nabbed - The Statesman, and Mewat-based sextortion gang busted by Delhi Police | Mewat-based sextortion gang busted by Delhi Police New Delhi, March 29 (ANI): With the arrest of criminals, Delhi Police has busted a sextortion gang... | By Take One Digital NetworkFacebook | Facebook. 

   [3] ‘DFAT Country Information Report India’ 29 September 2023, Australian Government, Department of Foreign Affairs and Trade, country-information-report-india.pdf (dfat.gov.au).

9. Hence, while the Tribunal accepts that Mewat gangs operate outside the Mewat area, the Tribunal does not accept that the applicant’s brother has ever had a connection with such criminal gangs and that consequently the applicant is of interest to them because his brother requisitioned for himself goods intended for the overall benefit of the gangs.  The Tribunal finds that the applicant has not established his claims.

10. At hearing the Tribunal tried to ascertain why the applicant’s brother would join gangs that were predominantly Muslim as the Mewat region has a Muslim majority of around 79%[4].  This being the case, the Tribunal does not accept that the applicant’s brother, as a Sikh at least in terms of his background (if not a practising Sikh) would find an affiliation with such a group that believes in Islamisation of the nation.The Tribunal is not satisfied that the applicant has made out his claims that his brother was a part of the Mewat gangs coming from a Sikh background.  The applicant was not able to provide any meaningful explanation why his brother would enter a group with radical or otherwise Muslim affiliations.

    [4] ‘Dominance of Jats to Muslims in Mewat: How Haryana’s caste-community matrix shapes up’, The Indian Express, Varinder Bhatia, 26 May 2024, Dominance of Jats to Muslims in Mewat: How Haryana’s caste-community matrix shapes up | Political Pulse News - The Indian Express.

11. The applicant states that his parents are not pursued or targeted by the Mewat gang because they are old.  The Tribunal also finds this explanation implausible.  Given the ruthlessness of the Mewat gangs, and given it is claimed that they want to find the applicant’s brother, the Tribunal does not accept that the Mewat gangs would not have taken action against the applicant’s parents, given their immediacy in terms of location and given the applicant had long departed India.

12. The Tribunal also asked the applicant to provide clinical notes regarding his mother’s health struggles with anxiety and depression.  The Tribunal accepts that the applicant’s mother does suffer from anxiety and depression and is in treatment for these conditions.  The applicant finally submitted a report from his mother’s treating doctor, dated 27 June 2024, stating that the applicant’s mother was suffering from anxiety and associated depression and that she had been under his/her care for 4 months.  The Tribunal does not have any reason to question the provenance of this document as it is on letterhead of [a named] Nursing Home. 

13. The Tribunal therefore accepts the applicant’s mother has been having difficulties with anxiety and depression and that she is being treated currently.  Nonetheless, the letter is silent on any probable causation, including that her son has caused a significant rift in the family because he had joined the Mewat gangs and had been banished from their home by her husband.  The Tribunal explained to the applicant the importance of providing an opinion by her treating doctor/psychiatrist as to the cause of her illness as this would provide supporting evidence that his brother was involved in the Mewat gangs and their mother had suffered consequential mental health issues.

    Kidnapping incident

100.   The Tribunal also found the applicant’s evidence regarding the claimed kidnapping vague and general, and the Tribunal was required to prompt the applicant significantly about this key event.  The Tribunal found the applicant’s statements about being hit with sticks and an iron baton implausible in that he stated he did not suffer major injuries from such blows involving ten drunk men bearing down on him.  The Tribunal does not accept that the claimed ruthless assailants would have simply hit him, but not violently, to ensure the applicant did not get seriously hurt particularly as they had taken him as collateral damage for his brother.  The Tribunal considers the applicant stated that he was not seriously injured by the beatings because he did not have medical evidence to confirm that any beatings he had received were caused by ten Mewat gang members.  When challenged about being hit with an iron baton and not having any injuries the applicant stated that his leg was sore, and they did not hit him on the head, but the Tribunal does not have any medical evidence before it to say that any injury caused to his leg was caused by an iron bar and that the applicant had presented for treatment following the claimed kidnapping. 

101.   The Tribunal also found the applicant’s account of his father’s reaction to the kidnapping implausible, and the Tribunal does not accept that his father would not try to intervene or attempt to involve the authorities during a major attack on his son because he thought that things would be made worse.  Indeed, the evidence the applicant gave about his father’s reaction was also vague and lacked detail to convince the Tribunal that such an event as a kidnapping occurred.

102.   His account of being released by his assailants and that he was given money to leave the area was also vague and unconvincing as the applicant was unable to provide any particular details about his surroundings on his release simply stating that he did not know where he was.

103.   The Tribunal places adverse weight on the fact that the applicant did not mention this significant event to either a counsellor or any education provider representative or to the AAT while it was assessing why his Student visa should not be cancelled.

104.   The Tribunal rejects that any kidnapping involving the applicant conducted by Mewat gangs or anyone else ever occurred.

Political opinion/imputed political opinion

105.   The applicant has stated that his father’s affiliation with the Congress Party in that he voted for them also presents a real chance of harm to the applicant because the BJP and the Mewat gangs are aligned.  As the Tribunal noted at hearing, there appeared to be limited country information to support that the Mewat gangs do the bidding of the BJP given the BJP has championed Hindu nationalism.[5]

[5] ‘Plurality under BJP dominance’,EastAsiaForum, by Arun Swamy, University of Guam, 3 June 2024, Plurality under BJP dominance | East Asia Forum.  The article states that the increasingly precarious situation of India’s large Muslim minority is the most visible consequence of the BJP’s nation-building strategy.

106.   Given the Tribunal has rejected that the applicant’s brother was ever a member of the Mewat gang and given that the Tribunal does not accept that the applicant or anyone else in his family is of interest to the Mewat gangs in their home area or anywhere else, the Tribunal does not accept that the applicant’s father simply voting for the Congress Party would attract adverse attention, given India is a democracy and the Tribunal does not accept that without some other characteristic or profile the applicant or anyone in his family is of adverse interest to the authorities in India because they vote Congress and rejects this is the case.

Religion - a Sikh  

107.   The applicant has not directly raised that he will be harmed on account of being a Sikh in Haryana, or India generally, but the Tribunal has considered this matter in any event, given the applicant claims that he comes from a strict Sikh family.  On the evidence before it the Tribunal is not satisfied that the applicant’s profile as a strict or other type of Sikh means that there is a real chance the applicant will face serious harm on return to India, this is particularly so as the Tribunal has rejected the applicant’s claims that his family or the applicant have ever been threatened by Muslim or other Mewat gangs at any time for any reason and not under s.5J of the Act.  The Tribunal finds that the applicant does not have a profile as someone of interest by the state or any non-state actors based on being a Sikh.

Claims he will be targeted because he will be perceived to be a wealthy national returning from a Western country

108.   The applicant returned from Australia to India in 2015 without difficulty and the applicant has not claimed that he was threatened or targeted because he was seen as a wealthy returnee from a Western country on that occasion.  The applicant it is true is running his own business in Australia and might be perceived to be wealthy, but the applicant has not made a case for who would target him on return to India due to any perceived wealth on the part of the applicant.  The Tribunal considers that on the basis of the material before it there is no evidence to suggest that the applicant’s profile as a returning national from a Western country attracts a real chance of serious harm now or in the reasonably foreseeable future.

109.   In summary, the Tribunal does not accept:

·the applicant and his family are in dispute with the government or anyone else over wanting to sell their land and being prohibited from doing so.

·an MP ever attended the home of the applicant to advise that the land dispute was being resolved so the family could have the land as freehold but this information was false and was just sprouted at election time to win votes.

·the applicant’s brother was ever a member of the Mewat gang.

·the applicant’s brother took goods intended for the gang.

·the applicant’s father banned the brother’s applicant from the family home at any time on account of membership of the Mewat gang.

·In or about the end of 2013 the applicant’s family home was attacked by a group of people who were looking for the applicant’s brother because his brother had failed to deliver valuable goods, including gold. 

·the applicant was then kidnapped by suspected Mewat gang members or anyone else at any time.

·the applicant was ever beaten with sticks and a metal iron baton by ten suspected Mewat gang members and threatened with having his limbs cut off.

·the applicant is wanted by the Mewat gang as collateral for his brother’s theft.

·the applicant was released and given money by a roadside seller, someone the applicant suspected of being associated with the Mewat gangs, to return to his home.

·in or around 2019 or at any time Mewat gang members raided the applicant’s family home looking for the applicant again as collateral.

·the Mewat gangs would call the police to have the applicant arrested and may try to create a fake criminal case against the applicant.

·all police in India are corrupt and collude with Mewat gangs.

·the Mewat gangs want to recruit the applicant into their gangs by force or by other means.

·the applicant’s mental health condition has been caused by any traumatic events in India, involving kidnapping due to his brother’s membership of a Mewat gang – a matter the Tribunal has rejected.

·the applicant’s mother’s illnesses have been caused because of her son’s involvement in the Mewat gangs which has caused a rift with her husband and because her other son, the applicant, suffered a kidnapping, threats and other trauma in India.

110.   The Tribunal has also considered whether someone without a profile would face serious harm on returning to India because he would face significant economic hardship that threatens his capacity to subsist and whether, for example, he would be denied the capacity to earn a livelihood of any kind, where that denial threatens the person’s capacity to subsist.  The applicant has proven he is resourceful and flexible and indeed enterprising in being able to set up his own business in a foreign country.  Even if the applicant were not inclined to set up a business in his home area because it is rurally based and somewhat deprived, the applicant’s prospects of finding work in large urban centres in India, the Tribunal finds are good.  This is particularly so as he has Diplomas attained in a Western country and he is obviously business-minded.  The Tribunal does not accept that the applicant would face serious harm for any reason under s.5J(5).

111.   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).

Complementary protection criteria

1. 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).

113.   The Tribunal has also considered whether it has 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 the applicant will suffer significant harm.  The real risk test imposes the same standard as the real chance test applicable to the assessment of a well-founded fear of persecution.  The Tribunal having rejected the applicant’s claims, individually and in their totality, finding that there is not a real chance that the applicant will face serious harm on account of any s.5J reasons, finds that it is not satisfied that there are substantial grounds for believing that there is a real risk he will suffer significant harm due to any adverse profile with any state or non-state actors in India and the Tribunal rejects that the applicant will be arbitrarily deprived of his life; or that the death penalty will be carried out on him; or that he will be subjected to cruel or inhuman treatment or punishment; or that he will be subjected to degrading treatment or punishment by non-state or state actors.

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

1. 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

116.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Rosa Gagliardi
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…