2203826 (Refugee)

2203826 (Refugee) [2022] AATA 4082 (22 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2203826
COUNTRY OF REFERENCE:                   India
MEMBER:Rachel Da Costa
DATE:22 August 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 August 2022 at 9:32am
CATCHWORDS
REFUGEE – protection visa – India – threats of harm by business competitor – vague and inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZGUR (2011) 273 ALR 223
MIAC v SZQRB [2013] FCAFC 33
SZBYR v MIAC (2007) 253 ALR 609
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 24 February 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of India, applied for the visa on 9 June 2021. 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
Background
In his protection visa application form, the applicant provided the following information. He was born in [year] in Jalandhar town, Punjab state, India. He speaks, reads and writes Punjabi and English. He married [in] December 2017. He is a Sikh. His parents live in India. In India, he always lived at the same address in [Jalandhar]. In India, he was financially dependant on his family. He completed primary school and high school in India.
He departed India [in] August 2018 on his Republic of India passport issued [in] 2014. He entered Australia as a dependant on his wife’s Student visa.
He has been convicted of offences in Australia. In February 2019 he was convicted of a traffic and driving offence (speeding) and was fined. In December 2019, he was convicted of a traffic and driving offence (driving uninsured an unregistered vehicle) and had his licence suspended. He has spent time in prison in Australia. In June 2020 there was a domestic violence order raised and he was convicted of domestic violence and pleaded guilty.
Evidence before the Department
Protection visa application
In his protection visa application form, the applicant makes the following claims:
·     He was running his own [Industry 1] business and had competition with [Business 1].
·     The people running [Business 1] started to threaten the applicant to close his business as it was affecting their income.
·     When the applicant refused, he was beaten by their goons and also had false police reports made against him.
·     He suffered physical harm and false prosecution.
·     He did not seek help for the harm.
·     [Business 1] had good political links and the police were involved with them. Instead of providing support to the applicant, the police filed false cases against the applicant.
·     [Business 1] would cause the same harm to him if he moved anywhere in India.
·     If he returns to India, the applicant will suffer physical and social harm.
·     The authorities will not take any action against [Business 1] or protect the applicant.
The applicant provided various Indian identity documents, including a copy of the bio-data page of his passport, his marriage certificate, and his Indian identity card, in support of his application.
Request from the Department for more information
On 17 June 2021, the Department wrote to the applicant requesting more information in order to assess his application. The letter explained that following an Australian Police check, the Department required certain information relating to the applicant’s character. It listed the offences with which the applicant had been charged, which relate to domestic violence, property offences and motor vehicle offences, and requested that he provide a statement in relation to these.
In August 2021, the applicant provided the following documents in response to the Department’s request:
·     Community service order induction data sheet dated 27 January 2021;
·     Community service work instruction dated 21 January 2021;
·     A statement responding to each of the offences listed in the Department’s letter in which the applicant gives an explanation of the circumstances of each offence.
The delegate’s decision
The applicant was not offered an interview with the Department.
On 24 February 2022, a delegate of the Minister made their decision. The delegate found that based on the information provided by the applicant, and the lack of detail provided by the applicant in support of his claims, and the fact that the information provided by the applicant indicated he no longer operates the business that was the cause of his problems, the delegate was not satisfied that if the applicant returned to India he would face a real chance of serious harm. The delegate found that the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
The review application
On 17 March 2022, the applicant lodged an application for review of the delegate’s decision with the Tribunal. The applicant included a copy of the delegate’s decision with his application for review.
The hearings
The applicant appeared before the Tribunal on 26 July 2022, 1 August 2022 and 8 August 2022 to give evidence and present arguments. The hearings were conducted by video using the Microsoft Teams platform. The Tribunal exercised its discretion to hold the hearings by video as the applicant is in immigration detention and there are currently limited resources available to transport applicants to the Tribunal, in light of ongoing difficulties connected with the Covid-19 pandemic. 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 hearings were not conducted by video, particularly given the applicant is in immigration detention.
The Tribunal received oral evidence by telephone from the applicant’s wife, [named], who is in Australia, and his father, [Mr A], who is in India, also via telephone.
The applicant had also requested that the Tribunal receive evidence from [Mr B], who is a family friend in India. In the third hearing, when the Tribunal attempted to contact [Mr B], it was not able to reach him by telephone in India. After discussing the implications of this with the applicant, the applicant indicated that this witness did not know a great deal about the applicant’s claims and situation in India and so the applicant agreed that it was not necessary for the Tribunal to speak to this person given he was not answering his phone. The Tribunal indicated to the applicant that this person could provide a written statement to the Tribunal, which the Tribunal would consider if the statement was provided before the Tribunal made its decision. However, the Tribunal pointed out to the applicant that if such a statement were provided, it may give little weight to the contents given the applicant would have had an opportunity to be in contact with [Mr B] after the Tribunal had put its concerns to the applicant about aspects of his evidence. At the time of the Tribunal’s decision, no statement had been provided by [Mr B].
The Tribunal hearing was conducted with the assistance of interpreters in the Punjabi and English languages. While the applicant at times addressed the Tribunal in competent English, the Tribunal considers that an interpreter was required to enable the applicant to participate in the hearings in a meaningful way.
Part way through the second hearing, which was intended to be the final hearing, the applicant took issue with the way the interpreter had interpreted his response to a question. He corrected the interpreter and she apologised and immediately corrected herself. In this particular instance, the Tribunal does not consider that the difference between what the interpreter said compared to what the applicant said he intended, was great and in any event, the discrepancy would have been clarified by the Tribunal’s proposed follow-up questions. The applicant and the interpreter then became involved in a slightly heated discussion in Punjabi which the Tribunal could not follow. The applicant then complained to the Tribunal about the interpreter and said she was not interpreting his answers clearly and suggested this was why the Tribunal was asking him so many questions. The Tribunal asked the applicant whether he had any examples of things he said the interpreter had not interpreted correctly (other than what had just happened) and he said he did not. The Tribunal indicated to the applicant that based on its questions and the responses it was receiving from the applicant via the interpreter, it did not consider there to be a deficiency in the standard of interpreting. The Tribunal explained to the applicant that it would ask as many questions as it considered necessary to obtain the evidence it needed in order to make its decision in his case.
Once this altercation occurred, the Tribunal decided that the hearing could not continue and should be adjourned for the day. Before adjourning, the Tribunal indicated to the applicant that in light of what had just happened, it was proposing to adjourn the hearing because the Tribunal had concerns about whether the hearing could continue fairly with the current interpreter. The Tribunal explained that the hearing would have to resume another day soon and it would be with a different interpreter. The Tribunal explained to the applicant that in making the decision to adjourn and resume with a different interpreter, it was not indicating that it agreed with the applicant that there was an issue with the standard of interpreting provided by the interpreter. It was about making sure the applicant received a fair hearing. The Tribunal asked the applicant whether he had anything to say about this. He apologised to the Tribunal and to the interpreter. The third hearing was conducted with the assistance of a different interpreter.
The Tribunal is satisfied that the applicant was able to give evidence and present arguments and to participate fully in the hearings in a meaningful way. The Tribunal does not accept that there was a deficiency in the standard of interpreting provided in any of the hearings which affected the applicant’s ability to participate fully in the hearings in a meaningful way.
Documents provided by the applicant
On 21 July 2022, prior the first hearing, the applicant provided the following documents:
·     Letter dated 18 July 2022 from the Chief Manager of [Bank 1], [Jalandhar branch], certifying that [Mr A] has had an account in the name of [Business 2] since 3 June 2015;
·     Government of India GST Registration Certificate in the legal name of [Mr A] and Trade name of [Business 2], dated 29 October 2021.
·     Link to a video on Facebook which the applicant stated described the current situation of [Industry 1] businesses and the misbehaviour of opposition [Industry 1]parties towards [Business 3] [Industry 1] partners. The video is in Punjabi and has not been translated into English.
On 4 August 2022, after the second hearing, the applicant provided the following additional documents:
·     Screenshots of images of a man named on screen as [Mr C]. Some images are undated, and some are dated from December 2017. One has the date as April 26, but the year is not specified; another is undated and shows a shop with a billboard above it which shows [Mr C]’s face;
·     Bank transaction statements from [Bank 1] of India for an account named [Business 2] from 7 April 2015 to 2 August 2022;
·     Undated document on the letterhead of [Business 3] certifying that [Business 2] is registered with [Business 3] from 2008.
The applicant’s migration and visa history
Based on information contained in the applicant’s protection visa application form, the delegate’s decision, documents on the Department and Tribunal files and oral evidence given by the applicant in the Tribunal hearing, the applicant’s migration and visa history is as follows:
·     November or December 2017: applicant’s wife began the process of applying for a Student visa to come to Australia;
·     31 July 2018: Student visa granted;
·     [August] 2018: applicant and his wife arrived in Australia on a Student visa (the applicant as a dependant of his wife);
·     5 March 2021: applicant’s application for a Student visa was refused;
·     9 April 2021: Bridging visa A (associated with the Student visa application) ceased;
·     9 April 2021: applicant lodged an application for a Protection visa;
·     12 May 2021: Protection visa application was found to be invalid;
·     9 June 2021: Protection visa application lodged, which is the subject of this application for review;
·     February 2022 – 16 May 2022: applicant in custody at [named] Correctional Centre (NSW);
·     2 May 2022 – 15 May 2022: applicant held a Bridging visa E;
·     May 2022 - present: applicant in detention at [named] Detention Centre; current immigration status is unlawful.
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 (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.
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 in the hearing that he filled out his protection visa application form himself with the assistance of his wife.
During the hearing, the Tribunal discussed with the applicant his family, education, employment, where he lived in India, his migration and visa history, the problems he claims to have experienced in India and why he fears returning there. The Tribunal found there to be discrepancies in aspects of the applicant’s evidence between the written claims in his protection visa application form and what he told the Tribunal in the hearing. The Tribunal also considered aspects of the applicant’s oral evidence to be vague and to have changed during the hearing, and that aspects of the applicant’s behaviour in India do not support his claims. This undermined the applicant’s credibility and overall, the Tribunal did not find the applicant to be a credible witness.
The Tribunal’s concerns and findings are set out below.
First, aspects of the applicant’s evidence about the threats and physical harm he claims to have suffered raises concerns for the Tribunal.
By way of background, in the Tribunal hearing, the applicant gave evidence that his business he refers to in his written claims is called [Business 2]. He said it is a [Industry 1] business that was started by his father in 2008 and it is actually his father’s business. [details deleted]The applicant said he joined his father’s business in 2012 after he finished school and the problems started around 2015. He said workers from their business competitor, [Business 1], would [damage the equipment owned by Business 2] to try to steal customers away from [Business 2]. He said they still try to do this. The Tribunal is prepared to accept this evidence. However, it does not necessarily accept the applicant’s other claims, as discussed below.
In his protection visa application form, the applicant claims that the people running [Business 1] began threatening the applicant to close his business and when the applicant refused, he got beaten by their goons. The applicant suffered physical harm.
In the Tribunal hearing, when asked about the threats, the applicant said that in around 2015, workers from [Business 1] started [damaging equipment owned by] his father’s business, [Business 2]. The workers did this in the hope that if they disrupted the [business], customers would switch to [Business 1]. He said the workers did this quite often, such as once a month, especially when there was [increased customer demand]. He said [Business 2] did not retaliate by doing the same thing to [Business 1’s equipment]. The Tribunal asked the applicant whether there were any other problems and he reiterated [examples of damaged equipment].
In the Tribunal hearing, the applicant was asked about any physical harm he claims to have suffered. He said that when the [Business 1] workers [damaged equipment], it sometimes escalated into fights when he and his workers would approach the [Business 1] workers about what they were doing. The Tribunal asked him how many times the fights happened and he said he could not remember, but it was when they would [damage the equipment]. The Tribunal asked him whether he was involved in other types of incidents and he said he was the main target because the [Business 1] people thought that if they “finished him off” or “got rid of him”, his father’s business would go down and [Business 1] would not have competition. The Tribunal asked the applicant whether he was seriously injured in any of these fights. He said once he was hit with a metal rod on his right leg and he has a scar on his forehead. The Tribunal asked him whether he ever had to seek medical treatment and he said if he needed treatment he just used the local dispensary or doctor but he never had to go to hospital. He has no medical reports or other evidence about these incidents. He said there were no other threats. It was just fights about the [equipment being damaged]. The Tribunal asked the applicant whether he continued to run the business while these fights were going on and he said he did, and he kept increasing [Business 2]’s number of customers during this time.

Later in the hearing, the applicant said there were two fights, but after the second-last fight things were sorted out and after the last fight he got his visa and left India. He said that his competitors want to take revenge on him for that last fight. The Tribunal asked him when the second-last fight occurred and he said it was before he was married but he could not remember when. The Tribunal put to the applicant that he had previously said there were fights over many years and they were never serious. The applicant responded that the fights were not too serious and there were lots, but two were bigger and serious and after the last one he got his visa. The Tribunal asked the applicant what was significant about the final fight which means someone will want to take revenge on him if he goes back. He responded that luckily, he received his visa and came to Australia. The Tribunal asked him whether he was saying that nothing special or significant happened in the final fight and then he came to Australia. The applicant said yes.
The Tribunal asked the applicant whether his father, as the business owner, was ever targeted or harmed. The applicant said he was not. The applicant said that he (the applicant) was the target because he was the main person growing the business and his family was never involved in the problems.
The Tribunal has various concerns about the applicant’s evidence about being threatened and harmed in India, which it discussed with him in the hearing.
First, the applicant claims in his protection visa application that the people running [Business 1] began threatening the applicant to close his business and when the applicant refused, he got beaten by their goons. In the Tribunal’s view, the applicant’s evidence (and that of his wife and father) does not support this written claim. The Tribunal put to the applicant in the hearing that his written claims suggest a serious situation where he was threatened about closing [Business 2] and when he refused to do so, he was beaten by hired thugs, but in the Tribunal hearing his evidence is that he got into some fights with [Business 1] workers who were trying to [damage the equipment] belonging to [Business 2] to try to steal customers and the applicant suffered some minor injuries. The Tribunal observed that in its view, this is quite a different claim and it raises a concern about whether the applicant has been truthful about the claimed events. The applicant responded that when he applied for his protection visa he did not have enough knowledge about what he should say but when the Tribunal asked him questions he has answered and provided all the information. The Tribunal does not accept that the applicant did not have “enough knowledge” to accurately express his claims in his protection visa application form if they are true. The fact that his evidence to the Tribunal about what he claims happened to him in India does not match, or is at best a considerable exaggeration of, what he wrote in his protection visa application form raises concerns for the Tribunal about his credibility and the genuineness of his claims.
Secondly, the Tribunal put to the applicant that given he claimed these fights started in 2015 and he was the main target and the [Business 1] people wanted to “get rid of him” or “finish him off”, but he kept working and increasing the business over several years, this might suggest that if [Business 1] had really wanted to get rid of him or seriously harm him so he could not remain involved with [Business 2], they had plenty of time to do this while he was in India, but they did not. The applicant responded that there were some big fights and he is lucky he got his visa because after the last fight they were going to take revenge on him. The Tribunal does not accept this response. As set out above, when the Tribunal had asked the applicant what was so significant about the last fight and why he was going to face revenge, he was not able to provide an explanation. The Tribunal also put to the applicant that it might find his oral evidence about the fights and how often they took place was vague and changed during the hearings, which raised a concern about his credibility. The applicant did not respond specifically to this concern. The Tribunal considers that changes in the applicant’s evidence about how many fights there were and how often, changes in his evidence about whether or not any of the fights were serious, not being able to say (apart from very vaguely) when certain claimed serious fights occurred, not being able to explain why certain fights were more serious than others, and not being able to explain why the claimed final fight was so significant and meant his opponents would want to get revenge on him, all raise concerns for the Tribunal about his credibility and the genuineness of his claims.
The Tribunal has carefully considered the evidence given by the applicant’s wife and father in the Tribunal hearing and how, if at all, it affects the Tribunal’s assessment of the applicant’s evidence.
The applicant’s wife gave evidence that she and the applicant got married in December 2017, having been introduced about one-and-a-half months earlier. She said they came to Australia together in August 2018 and it was her choice because she wanted to study here. In about March 2018, the applicant told her there were some problems with business competitors and things were tense. She said she only knew what he told her. She said he told her there were fights. She doesn’t know when they occurred but he told her once or twice. When asked if she knew whether he was injured she said “not much” and when asked if he ever sought medical treatment she said from the local doctor for dressing. The Tribunal asked her whether apart from the couple of fights there were any other problems with the business and she said she was never involved so she did not know. She said that if the applicant is involved in the business the fights will escalate. She said she knows about the fights because her husband told her.
The applicant’s father gave evidence that the problems started around 2015 and the business competitor, [Business 1], started [damaging the equipment of Business 2] to try to disrupt their service and steal customers. He said that the applicant would go with the [Business 2] workers to repair the [equipment] and if the people from the competitor saw the applicant, they would try to beat him. At one point, he gave evidence that there were physical fights three or four times, and at a later stage he said there were big fights around five or seven times and the opponents used things like hockey sticks to avoid visible injuries. When asked whether the applicant was ever seriously injured, the applicant’s father did not answer the question and reiterated that the applicant was the main target and [Business 1] wanted him out of the way so his (the father’s) business would not be able to [serve] its customers. When asked whether the applicant ever had to go to the hospital for treatment, his father said he just went to the local clinic because the police and the public hospitals would not listen to them or file a case for them, and otherwise they would deal with it at home. The applicant’s father gave evidence that he was personally injured twice when fights happened and he went to the scene, and he was treated for an injured finger and shoulder by a person in the village. He also gave evidence that since the applicant left, the [equipment damage] has continued but he and his workers have not been involved in fights because they are not as quick going to fix the [equipment] as when the applicant was there.
The Tribunal has carefully considered the evidence of the applicant’s wife and father. The applicant’s wife admitted that she had little personal knowledge of events and only knew what the applicant had told her. The evidence of the applicant’s father, while telling a similar story to the applicant, contains elements which the Tribunal considers to be an exaggeration of, or sufficiently different from, the applicant’s oral evidence, such as the number of big fights, whether the applicant’s father himself was ever involved in the fights and injured, and whether they sought treatment at a hospital, that it calls his credibility into question. The applicant’s wife and father are also members of the applicant’s family who have an interest in supporting the applicant’s claim for a protection visa and therefore, the Tribunal does not consider their evidence to be independent or objective. The Tribunal put to the applicant in the hearing that it might give little or no weight to the evidence of his wife and father and explained why. The applicant responded that his father and wife are concerned for his safety and he is not doing this so he can stay in Australia and earn money. The Tribunal acknowledges that the oral evidence of the applicant’s wife and father broadly support the applicant’s oral evidence to the Tribunal (but less so his written claims, as explained above). However, in light of the Tribunal’s concerns about their evidence set out above, the Tribunal does not consider their evidence to be of sufficient probative value to overcome or outweigh the Tribunal’s overall concerns about the credibility of the applicant’s evidence, for the reasons explained above. Accordingly, the Tribunal gives the evidence of the applicant’s wife and father no weight in assessing his claims for protection.
Secondly, the applicant’s evidence about false police reports, cases and prosecutions being made against him raises concerns for the Tribunal.
In his protection visa application form, the applicant claims that he got false police reports against him, that he suffered false prosecution and that the police filed false cases against him.
The applicant was asked about this in the Tribunal hearing. He gave evidence that no false reports or cases were filed against him. He said the competitors didn’t need to because they had political connections. He also said the police did not file any false cases against him. He did not mention false prosecutions. The Tribunal put to the applicant this this was different from what he said in his protection visa application form, which is that there were false police reports against him, that he suffered false prosecution and the police filed false cases against him. The Tribunal explained that this raised a concern about his credibility. The applicant responded that there were never any official complaints filed or First Information Reports (FIRs), but the [Business 1] people used to write on a piece of paper and say it was a warning and file it with the police. The applicant said that when he filed his protection visa application he did not have much knowledge and was not aware of the difference between formal First Information Reports (FIRs) and warnings on paper so he didn’t explain it at the time. The Tribunal has considered this response but does not accept it as an explanation for the changes in the applicant’s evidence. In his protection visa application form the applicant clearly states that the police filed false cases against him and he suffered false prosecution. The applicant’s evidence to the Tribunal was initially that there were no false reports or cases against him. He then changed his evidence when the Tribunal reminded him what he had said in his protection visa application form and said [Business 1] filed warnings on paper. Even taking the applicant’s changed oral evidence at its highest, which is that [Business 1] filed warnings on paper with the police, this is a third version of events and the Tribunal does not consider the applicant’s explanation that he lacked knowledge to be a plausible explanation for the discrepancies in his evidence. These changes in the applicant’s evidence raise concerns for the Tribunal about his credibility and the genuineness of his claims.
Thirdly, the applicant’s evidence about whether he sought help from the police raises concerns for the Tribunal.
In his protection visa application form, the applicant states that he did not seek help for the harm he suffered, which he said was physical harm and false prosecution. He states that this is because [Business 1] have political links and the police were involved with them, and instead of providing support to the applicant the police filed false cases against him.
In the Tribunal hearing, the applicant gave evidence that he went to the police to file a complaint about [Business 1] but the police would not help him and told them to sort it out amongst themselves. The applicant’s father gave similar oral evidence. The applicant’s wife said her husband had reported a fight to the police and it was not taken seriously because [Business 1] had political influence, however she also said that she did not have much knowledge about what had been going on and only found out from her husband (the applicant). The Tribunal put to the applicant that in his protection visa application form he said he did not seek help for the harm, and this was because the police had close connections to [Business 1] and the police filed false cases against him, but in the Tribunal hearing he said he did try to seek help from the police, and this difference in his evidence raised a concern for the Tribunal about his credibility. The applicant responded that he never asked the police for protection but he went there to file a complaint against [Business 1] and he thought the police did not want to help him. The Tribunal also put to the applicant that it may give the evidence of his father and wife little or no weight given they are people who have an interest in supporting his claims for protection. The applicant responded that they are concerned for his safety.
The Tribunal has considered the applicant’s responses. First, the Tribunal does not accept that the applicant’s failure to ask the police for protection means he did not seek help for the harm. The Tribunal considers that attempting to file a complaint, which involved trying to make use of legal avenues available to him and his father in respect of the problems he claimed to be having, amounts to seeking help from the police. In this sense, the Tribunal considers the applicant’s written claim to be different from the oral evidence he gave in the Tribunal hearing. Further, the Tribunal has set out above its concerns about the credibility of the applicant’s evidence relating to his claims of physical harm and false police reports and prosecution.
The Tribunal has accepted that [Business 1] workers sometimes [damaged] the [Business 2 equipment] to disrupt the [Business 2 customer service]. The Tribunal is prepared to accept that the applicant and his father tried to complain to the police about the [damage], but for the reasons set out above, the Tribunal has concerns about the credibility of the applicant’s claims relating to seeking help, or not seeking help, from the police about the physical harm and false prosecutions he claims to have suffered, as the Tribunal has concerns about whether those claimed events truly took place.
The Tribunal did not put its concerns to the applicant about this aspect of the evidence given by his father and wife under the s 424AA process as the Tribunal does not consider the evidence given by them to be ‘information’ that contains a rejection, denial or inherently undermines the applicant’s claims to be a person to whom Australia owes protection obligations.[1] The Tribunal considers that their evidence goes to the applicant’s credibility. For the same reasons as those set out in paragraph 46 above, the Tribunal gives the evidence of the applicant’s wife and father no weight in assessing his claims for protection.
[1] SZBYR v MIAC (2007) 253 ALR 609 at [18]; MIAC v SZGUR (2011) 273 ALR 223 at [9], [77].
Fourthly, the applicant’s evidence about the circumstances in which he left India raises concerns for the Tribunal.
As set out in the delegate’s decision, the applicant arrived in Australia [in] August 2018 on a Student visa. The applicant explained to the Tribunal that he was a dependant on his wife’s visa. He gave evidence that his wife began the application process for her Student visa with the assistance of an agent in late 2017 and the visa was granted on 31 July 2018. When asked by the Tribunal why he came to Australia, he said it was because his wife wanted to study and he came with her. The Tribunal asked him whether there were any other reasons and he said he was away from the Indian environment. The Tribunal put to the applicant that the fact his wife applied for a Student visa in India and that process took about six months, might suggest he was not in a hurry to leave India and he did not fear harm. The applicant responded that only he knows what he went through in those months and it is not so straightforward in India to get the visa and he waited for it eagerly. The Tribunal has concerns about the applicant’s response.
The Tribunal finds it difficult to reconcile the fact that the applicant claims he cannot return to India because of what was happening to him with [Business 1] from 2015 to August 2018, but rather than taking steps to remove himself from the situation earlier, he continued working for [Business 2] throughout this time and increased its number of customers and he only left India when his wife obtained a Student visa to come to Australia, which he says took about six months to obtain. This further strengthens the Tribunal’s concerns about the genuineness of the applicant’s claims.
Documents provided by the applicant
As noted in paragraphs 20 and 21, the applicant provided various documents in support of his claims. The Tribunal is prepared to accept as genuine the documents he provided about the existence of the company [Business 2], as well as the applicant’s marriage certificate.
The Tribunal has considered the Facebook video provided by the applicant. The applicant gave evidence that it explained his situation and the same thing will happen to his business. As the Tribunal explained to the applicant in the hearing, it cannot consider the contents of the video as it is untranslated. The Tribunal gives the video no weight in assessing the applicant’s claims.
The Tribunal has considered the screenshots of images of a man apparently called [Mr C]. Some screenshots are undated and some are dated from December 2017. One has the date as April 26, but the year is not specified. The applicant claims that this person is a politician with the Indian National Congress Party and he is a shareholder or partner in [Business 1]. The Tribunal asked the applicant whether he had any evidence of this and he said he could not get proof because [Business 1] is the opposition. Based on the evidence provided by the applicant, the Tribunal is prepared to accept that in December 2017, [Mr C] was a politician with the Indian National Congress Party. Based on the lack of evidence provided by the applicant about [Mr C]’s connection to [Business 1], and the Tribunal’s concerns about the applicant’s credibility, the Tribunal does not accept that he is a major shareholder or partner in [Business 1].
Findings
Having considered all the applicant’s claims and evidence, for the reasons set out above, the Tribunal finds that the applicant is not a witness of truth.
The Tribunal accepts that the applicant was born in Jalandhar town, Punjab state, India. The Tribunal accepts that before coming to Australia, he lived with his parents in Jalandhar. The Tribunal accepts that he married on 12 December 2017. The Tribunal accepts that after finishing school, the applicant started working for his father’s [Industry 1] business, [Business 2], which his father established in 2008. The Tribunal accepts that from around 2015, workers from a business competitor, [Business 1], at times [damaged Business 2 equipment] to disrupt their service to customers in order to try to steal customers away from [Business 2]. The Tribunal accepts that this still happens. The Tribunal accepts that the applicant and his father tried to make a complaint about this with the police and the police told them to sort it out amongst themselves. The Tribunal accepts that the applicant’s father was never threatened or targeted by [Business 1] people. The Tribunal accepts that in 2017, [Mr C] was a politician with the Indian National Congress Party.

For the reasons set out above, the Tribunal does not accept that the applicant was running his own [Industry 1] business. The Tribunal does not accept that the people running [Business 1] started to threaten the applicant to close his business as it was affecting their income. The Tribunal does not accept that the applicant refused, or that when he refused, he was beaten by [Business 1]’s goons. The Tribunal does not accept that [Business 1] people wanted to finish the applicant off or get rid of him because he was the main person growing the [Business 2] business, or for any other reason. The Tribunal does not accept that the [Business 1] people want revenge on the applicant. The Tribunal does not accept that the applicant was involved in physical fights with [Business 1] workers. It follows that the Tribunal does not accept he was injured in these fights. The Tribunal does not accept that the applicant had false police reports made against him, or warnings on pieces of paper filed against him. The Tribunal does not accept that the applicant suffered physical harm and false prosecution. The Tribunal does not accept that the applicant sought help for the physical harm and false prosecution, as it does not accept that these things took place. The Tribunal does not accept that instead of providing support to the applicant, the police, or anyone else, filed false cases against the applicant. The Tribunal does not accept that [Mr C] is a major shareholder or partner in [Business 1]. The Tribunal does not accept that the applicant fled India in fear of his safety or that he fears returning for the reasons claimed.
Does the applicant meet the refugee criterion?
In his protection visa application, the applicant claims that if he returns to India, [Business 1] will cause the same physical and social harm to him and the authorities will not protect him. In the Tribunal hearing, the applicant claimed that if he returns to India, he will be killed by people connected to [Business 1] because they will want to stop him from making [Business 2] successful again and they will want revenge on him for what happened in the past. For the reasons set out above, the Tribunal does not accept the applicant’s claims that he was harmed by [Business 1] workers or anyone else when he was in India because they thought he was responsible for the success of [Business 2] and wanted to get rid of him. As the Tribunal does not accept the applicant suffered physical or social harm in the past as a result of working for [Business 2], it does not accept that he will suffer such harm in the future. For the reasons set out above, the Tribunal also does not accept that people from [Business 1] will seek revenge against the applicant if he returns to India because of what happened in the past. Accordingly, the Tribunal does not accept the applicant’s claims and finds that the applicant does not face a real chance of serious harm arising from these circumstances if he returned to India in the reasonably foreseeable future.
Further, if the applicant returns to India in the reasonably foreseeable future and chooses to work for [Business 2] again, based on the Tribunal’s findings above that the applicant did not suffer the claimed harm in the past, it finds that the applicant would not face a real chance of serious harm arising from these circumstances in the future.
As the Tribunal has accepted that workers from [Business 1] have engaged in [damaging Business 2 equipment] from time to time in an effort to damage [Business 2]’s business, the Tribunal has considered whether that amounts to the applicant facing a real chance of serious harm. While the Tribunal considers these actions amount to harm to [Business 2] by damaging its [equipment] and potentially causing the loss of customers, which may result in [Business 2] making less profit from the business, the Tribunal does not consider that this means the applicant himself faces a real chance of serious harm. The evidence of the applicant’s father, which the Tribunal accepts, is that he is the owner of the business and despite these activities, [Business 2] continues to operate as a business and to provide his family with an income. Accordingly, the Tribunal finds that the applicant does not face a real chance of serious harm arising from these circumstances if he returned to India in the reasonably foreseeable future.
Taking into account the findings set out above, 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 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 he 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,[2] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm for any 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).
[2] 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.
…

[2022] AATA 4082

22 August 2022

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