2303370 (Refugee)

2303370 (Refugee) [2023] AATA 1908 (18 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Deepak Panchal (MARN: 0747362)
CASE NUMBER:  2303370
COUNTRY OF REFERENCE:                   India
MEMBER:Rachel Da Costa
DATE:18 May 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 May 2023 at 4:38pm
CATCHWORDS
REFUGEE – protection visa – India – refused immigration clearance and placed in immigration detention – religion – attendance at Christian church and fear of harm from extremist Hindus and Muslims – credibility – vague and inconsistent claims and evidence – details given only in response to specific questions and limited explanations for discrepancies – timing and level of conversion unclear – late claim of attack and threats – false information given in visitor visa application – work and purpose of visit – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 March 2023 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 5 February 2023. 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 provides the following information. He was born in [Location 1], Haryana state, India in [year]. He has never been married. He speaks, reads and writes Hindi. His religion is Hindu.
In India, he always lived at the same address of [Location 1], Karnal, Haryana. He completed High School in India in [named] town, Haryana in June 2012.
In India, the applicant worked in a [workplace] for a couple of years but he cannot remember the dates. He was financially supported by his parents.
He arrived in Australia [in] February 2023 as the holder of a Visitor visa. He travelled on his Indian passport issued [in] 2022.
In the Tribunal hearing, the applicant gave evidence that in India he has his parents, a brother and a sister. His father is a farmer and his mother is a housewife. The applicant’s father owns some land and he farms wheat and grains. His brother is unmarried, lives in the same house and village as his parents and runs a dairy. The applicant’s sister also lives at home and she does housework. The applicant worked in a [workplace] for around two years and finished in 2019. The rest of the time he was at home and worked in his brother’s shop which sells groceries. He has never had another job.
The applicant’s migration history
As set out in the delegate’s decision and discussed with the applicant in the hearing, the applicant’s migration history is as follows:
·     10 January 2023: applicant granted a Visitor Visa (subclass 600)
·     [February] 2023: applicant arrives in Australia; applicant refused immigration clearance; applicant’s Visitor visa cancelled under s 116; applicant is placed in immigration detention at Villawood Detention Centre
·     5 February 2023: applicant applies for a Temporary Protection visa
·     8 March 2023: delegate’s decision refusing the applicant’s application for a Temporary Protection visa
·     9 March 2023: applicant applies to the Tribunal for review of the delegate’s decision
The applicant gave evidence in the Tribunal hearing that the entire time he has been in Australia he has been in Villawood Detention Centre.
Evidence before the Department
Protection visa application
In his protection visa application form, the applicant makes the following claims set out below (unedited responses to the questions in the protection visa application form).
Why he left his country:
I started going to Church because of there are always fight between Hindu and Muslims in India. Many of my friends has been hurted whenever there is violence and fight between Hindu and Muslims. People are not ready to understand humanity. It is really unsafe to remain in this country as a Hindu. Hindu or Muslim religion and books are nice but the people mindset are now unbearable. I think that all the books purpose are almost same. God is one. I do not mind going to other religion. When I went to Church all people were so nice and I think that converting from Hindu to Christian is not a big issue.
What harm he experienced and who was responsible:
There are so many Jihadis and anti Muslims and doing terrorism in India and other countries as well. It is not hidden from the world. As I am planning to become a Christian, no doubt that the Jihadis and our Hindu guru will kill me. They are trying other religion to convert to Muslims and if they know that I converted to other religion they are not going to spare me. I am also worried about my parents as they can threat them.
Why he did not try to seek help:
There is nothing like law in this country. Thousands of people are killed every year in the name of religions and how can I trust this country. If they cannot protect the people who are already there how can they protect me especially after I got converted to Christian. Police and other politicians, most of them are corrupted. They do not care about the people coming from small place like me and with less finance. We have to give them money to protect us but how long they can protect me.
Why he did not try to move to another part of the country:
Moving in the country from one place to another does not make sense. Hindu Muslims are fighting from nearly 500 years now. people are burnt live. Whenever there is election, any part of the country or state can go in fire. Muslims burnt Hindu train in Gujarat last time burning thousands of people. They shoot in Taj Hotel, they bomb everytime in various parts of country. Recently Kashmir issue is ongoing. Pakistan and India are always fighting. War never ended.
What he thinks will happen to him if he returns to his country:
Some part of the country like mine have extreme Hindu Muslim or religion issue. As I don’t want to be Hindu or Muslim, I choose Christianity. As Christians have less problems in India compare to Hindu or Muslim people. But somehow my Hindu guru came to know about me and he has very powerful people who can even harm me badly and can kill me.
What harm he is likely to experience if he returns and who would be responsible:
They can hit me very badly and can even kill me.
Hindu group Bajrang dal.
When the person supports another religion, they normally kill them.
Whether the authorities can and will protect him if he goes back:
Currently government is not helping anyone. If you see the news lot of the issues are there and lot of the people are getting killed. More powerful and politician people can take any type of decision and law does not matter. I cannot trust and I guarantee that if I go there they will kill me or will hurt me in very badly.
Would he be able to relocate to an area where he would not be harmed:
All country has same issues. Go to North India – Kashmir biggest issue is ongoing from years. North West India – Punjab – Border of Pakistan. Always on war, too much drugs and drinks. South India – Huge Muslim population. East India – again Border of Bangladesh. Huge Muslim population with strict Muslim religion followers. Issues are ongoing in every part of country. There are lot of religion, caste and then sub-caste issues. This religion issue is a main issue of the country. Whoever comes in power will make other religion people life hell.
In a written statement of claims provided with his protection visa application, the applicant makes the following claims (unedited):
I am writing this statement to express about the situation I am in. Right from beginning, when I was living in India, I believed that there is too much going on in India regarding religious fights. I am Hindu, and I follow Hinduism. However, people in India, who are Muslim keeps on conflicts without having any reasons with Hindu. If you see on average there are about 4000 people were killed everywhere just because of the religious disputes. This is clearly the worst in the world I believe. You never know in India when the riots will start and when somebody will get killed. There are actually a lot of historical, political and economic factors that are lying at the root of it. Every now and then Muslims blasts the bombs on various cities and destroys it.
I am really very lucky that I got visa to Australia and started seeing life. Here no one asks who are you and where you are coming from? Which religion you follow. Even if someone asks it is just for the sake of their knowledge and nothing much. Racism law are very strict here. Life is so good and in that way I started to fall in love with people over here. Lot of the time I asked nice Australian people and most of them were Christians. I am not generalizing here and I am not saying that Islam or Hindu is bad. In India I went to church with one of my friend. When I went there they done different prayers. Before starting they done Baptism after my permission and I met father and other sisters who talked very nicely with me. They told me different stories about Jesus and later on we had food and some wine in the Church. People were talking with me so nicely and first time I felt like family.
I really started thinking about changing the religion and converting. People says “converting” but is it in fact converting? I am just following some rules created by God and I am just learning what is wrong and what is right. I am just following another religion and I believe that all the religion books gives you good knowledge. It just matters which rules you wanted to follow. I like Christianity and therefore I wanted to follow those rules. I am human and I am not converting myself. However when my parents came to know they made a big issues. They created so much problems and threaten me that they will kill themselves. They also told my family and now the matter is declared all over my place and I don’t know how our religious head came to know about this and once I got a phone call from my country that If I will convert myself they will be eagerly waiting for me to come back to India and they will kill me. They will also kill my parents. I was terrified.
I don’t know now what to do and where should I go? My parents, my family nobody is supporting me. Also, my friends are not supporting me. Because of all these reason, I couldn’t concentrate on my studies resulting in incomplete studies. Immigration Department will think that I am applying for Protection visa because to stay here but I am trying to collect more evidence related to what can happen to me. If I am forcefully sent back to my country there are pretty good chances that they can kill me or can hurt me very badly.
I hate myself for not making up to my parents when I had chance, the only things that stopped me was being afraid and fear about me changing the religion.
I was already mentally depressed during the period of my time what was I going to do and how can I make peace to myself, I tried to find something which is going to bring me back from depression stage to the normal stage in my life. So, I tried to find something which bring me peace. So I started going to church for some kind of peace that I could find which was missing in my life.

For the first time in my life I got something out of it and which was peace and I slowly kind of like it and started continuing going there. It bought happiness in my life for the first time and I haven’t felt this way before.

Hearing them and being there made me forgot everything that was going wrong in my life, I was so engaged towards it and getting supported from them was one of the many reasons for me to believe in them completely.

I started going to Church regularly with my friend and be the part of the community. It makes me alive just being there and to be the part of it was one of the best experienced that changed my life.

But now reminiscing all those moments something hit my mind up about my family.

Then I started to find and look for the answer. I started to ask my friends and families about this matter. I was scared to death what will my family think of me if I will tell them the truth about how I have changed my religion.

I have heard from the friends that in our country there are high chances that I won’t be accepted in the community and I will be treated as badly as I could or even get hurt. I couldn’t imagine putting my life in danger since I know that it will be hard and miserable for me to go through it. And I couldn’t get any support from my country because the constitution of my country doesn’t have those circumstances to get me protected. So knowing all this information there is no point of going back as I can’t go through this all on my own.

I sincerely hope and believe that commonwealth of Australia will understand my situation and allow me to remain in Australia to save me and my life as I have been already in trouble. On the contemporary I have no courage to go and face these problems.

I am continuing with the local Church and one day I wish to be a priest. If I returned to my country with this idea I have been told that I could get killed.

I seek protection in Australia as I am scared to go back where Christian do get in to trouble just because of practicing religion.
The delegate’s decision
On 20 February 2023, the Department wrote to the applicant inviting him to provide further information in relation to his claims for protection. The letter explained that the applicant’s claims lacked substantiating details such as names, dates and locations, and he did not provide documents or other evidence to support his claims. The letter explained that the Department was requesting this information to assist in the decision-making process and set out a series of specific topics or questions that the applicant was invited to address, along with inviting him to provide any other information he wished to. The correspondence also informed the applicant of the potential consequences of not replying to the letter. As at the date of the delegate’s decision, the applicant had not replied to the letter. The applicant was not invited to attend an interview with the Department to discuss his claims for protection.
On 8 March 2023, the delegate made his decision. The delegate identified the applicant’s claim as being that he was unable to return to India as he would be killed due to his intention to convert to Christianity and that the authorities will not protect him. The delegate had a number of concerns about inconsistent information contained in the applicant’s Protection visa application form about his religion, the vague nature of some of his claims and the lack of detail provided in relation to some of his claims relating to his claim to be a practising Christian and the consequences he has faced because of this. The delegate found that the applicant’s claims were not credible and did not accept his claims relating to his Christianity. Therefore, the delegate found that the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
Application for review
On 9 March 2023, the applicant lodged an application for review of the delegate’s decision with the Tribunal. He provided a copy of the delegate’s decision to the Tribunal.
Additional documents
On 4 May 2023, the applicant submitted a statutory declaration from [Mr A] of [Location 2], Karnal, Haryana dated 26 April 2023. The statutory declaration states as follows (unedited):
-I want to report Harassment and Threats by Hindu Community Leaders Against [the applicant]
-I want to report an incident of harassment and threats against [the applicant], by a group of Hindu community leaders. I believe that [the applicant] is in danger and urgently needs your assistance.
-On 10-11-2022 [the applicant] was approached by a group of Hindu community leaders who began harassing him because of his conversion to Christianity.
They threatened him with physical violence and warned him to abandon his new faith. Since then, [the applicant] has received repeated phone calls from these individuals, who continue to threaten him and his family.
-[The applicant] has shared these incidents to me, and I am deeply concerned about his safety.
-I believe that the immediate action should be taken to protect [the applicant] and to ensure that those responsible for the harassment and threats are held accountable for their actions.
…
The applicant’s Visitor Visa application
Prior to the hearing, the Tribunal obtained a copy of the applicant’s Visitor visa application file from the Department.[1] In his Visitor visa application form, the applicant states that his trip to Australia is for “tourism” and “in this trip I will experience the rich culture and heritage of Australia”. His intended stay was from [December] 2022 to [January] 2023.
[1] [Department file number]
In his Visitor visa application form, the applicant stated that he was currently employed, and had been since November 2018, as [an Occupation 1] with [Employer 1]. He provided documents in support including a letter which purports to be from his employer at [Employer 1, [Mr B], approving his leave to travel to Australia and payslips which purport to be from [Employer 1]. He also provided various other documents in relation to his financial situation in support of his Visitor visa application.
The applicant reiterated this information about the purpose and duration of his stay and his employment and financial situation in an undated letter to the Australian Embassy, New Delhi, which was attached to his Visitor visa application form and signed by him.
The hearing
The applicant appeared before the Tribunal on 9 May 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
The applicant was represented in relation to the review however his representative did not attend the hearing. In the hearing response form submitted to the Tribunal on 24 April 2023, the applicant’s representative indicated that he would be participating the hearing. On the day of the hearing, the applicant’s representative did not attend the Tribunal premises for the hearing. Various attempts to contact him by telephone prior to and after commencement of the hearing were unsuccessful.
The applicant indicated that he was expecting his representative to attend the hearing. The Tribunal considered the situation and proposed to the applicant that given his circumstances, including that he was in immigration detention and had been brought to the Tribunal for the hearing that day, the hearing should proceed. The applicant agreed to this. The Tribunal reminded the applicant that he and his representative could request a copy of the audio recording of the hearing after the hearing had concluded. As of the date of this decision, no request has been made.
The Tribunal is satisfied that the applicant had the opportunity to participate fully in the hearing in a meaningful way.
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.
Nationality
The applicant claims to be a citizen of India and provided to the Department a copy of his Indian passport issued [in] 2022. The delegate was satisfied that the applicant was using his own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of India. The Tribunal finds India is his receiving country for the purpose of assessing his claims for protection.
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.
In the Tribunal hearing, the applicant gave evidence that his lawyer helped him to fill out his protection visa application. He said he was put in touch with this lawyer by his brother when he (the applicant) arrived in Australia because this lawyer is his brother’s friend. The applicant confirmed that everything in his protection visa application is true and correct as far as he knows and believes.
In the Tribunal hearing, the Tribunal discussed with the applicant his family, education, employment, religion, migration history, what he claims happened to him in India and why he fears returning. The Tribunal has various concerns about the applicant’s evidence which are discussed further below. For example, the applicant did not respond to a number of the Tribunal’s questions in the hearing or provide an explanation for this despite being given the opportunity to do so and the Tribunal making him aware of the potential consequences of this for its findings. The Tribunal found some of the applicant’s evidence about his key claims to be vague and details only provided in response to specific questions from the Tribunal rather than given spontaneously. There were also discrepancies between his oral evidence and his written claims which he struggled to explain. Further, in the hearing the applicant raised a significant claim about threats and harm which he had not mentioned in his written claims, which was another concern for the Tribunal. Overall, the Tribunal did not find the applicant to be a credible witness.
The Tribunal’s concerns are discussed below.
The applicant’s claim to be a Christian
In his protection visa application form, in response to the question which asks for the applicant to specify his “Religion including denomination”, he wrote “Hinduism”.
In his responses to the questions in the protection visa application form, the applicant states variously that “[a]s I am planning to become a Christian…”, “…after I get converted to Christian”, “[a]s I don’t want to be Hindu or Muslim, I choose Christianity.”
In his written statement of claims, he states variously that “I am Hindu, and I follow Hinduism”, “In India I went to church with one of my friend….Before starting they done Baptism after my permission…”, “I really started thinking about changing the religion and converting”, “I like Christianity and therefore I wanted to follow those rules”, “…I got a phone call from my country that if I will convert myself they will be eagerly waiting for me to come back to India and they will kill me”, “I was scared to death what will my family think of me if I will tell them the truth about how I have changed my religion” and “I am continuing with the local Church and one day I wish to be a priest.”
Based on the applicant’s statements in his protection visa application form and written statement, it was not clear to the Tribunal whether the applicant was claiming that he had already converted to Christianity (and been baptised) or whether he had been exploring Christianity and was intending to convert to Christianity in the future.
In the Tribunal hearing, the Tribunal asked the applicant what his religion is now and he responded “Christian”. The Tribunal put to the applicant that in his protection visa application form and written statement he had stated that his religion is Hindu, but he had told the Tribunal his religion is Christian and asked him to explain that. The applicant did not respond to the Tribunal’s question and remained silent. The Tribunal asked him again whether he had anything to say in response to its question and the applied replied “no”. The Tribunal asked the applicant what his religion was growing up and he responded “Hindu”. The Tribunal asked him what his family’s religion is and he said “Hindu”.
In light of the applicant’s lack of response to the Tribunal’s questions about this apparent discrepancy, the Tribunal went on to ask him why he fears returning to India. He responded that the people of Hindu religion want to kill him. When asked to be more specific about who the people were, he said the people of Bajrang Dal.[2] The Tribunal asked him why they wanted to kill him and he responded that it was because he changed his religion. After discussing with the applicant in detail his claims about what happened to him in India as a result of his change of religion (which are referred to further below), the Tribunal returned to questioning the applicant about his religious beliefs. The Tribunal asked the applicant whether he had anything he wanted to say about being a Christian. The applicant remained silent and did not answer the Tribunal’s question. The Tribunal asked the applicant more specifically whether he had anything he wanted to say about his beliefs, his feelings about his religion and why it is important to him. Again, the applicant was silent and did not answer the Tribunal’s question. The Tribunal put to the applicant that his lack of response might lead it to find that his claim to be a Christian and his claims about what happened to him as a result are not true and invited him to respond. The applicant declined. The Tribunal explained to the applicant that if it did not accept these claims then the potential consequence might be that it would find he does not meet the criteria for a protection visa. The Tribunal invited him to comment. The applicant responded that he cannot return to India and “they will kill me”. The Tribunal asked him whether he had anything else to say about his claims and he responded that he had said everything. Later, when reiterating some of its concerns, the Tribunal put to the applicant that the lack of evidence he had provided about his Christianity, which is central to his case, was a key concern for the Tribunal and invited him to comment. He said he had no comment.
[2] The DFAT Country Information Report India 10 December 2020 (DFAT Report) refers at 3.34 to Bajrang Dal as a Hindu nationalist group which is the youth wing of the Vishva Hindu Parishad religious organisation.
In the applicant’s written statement, in particular, he discusses his claimed Christian faith in some detail and provides some explanation of why he was attracted to Christianity and how he pursued this in India. The applicant’s inability or unwillingness to articulate his claims in the Tribunal hearing about being a Christian and his conversion raises serious issues for the Tribunal about the credibility of this claim. The Tribunal gave the applicant various opportunities to give evidence about his Christian religion and to explain his beliefs but he did not respond. The Tribunal has considered whether this was due to him being too nervous or stressed in the hearing, however as discussed below, there were other aspects of the applicant’s evidence where he provided some detail and was forthcoming and so the Tribunal does not accept that being nervous or stressed can adequately explain the applicant’s lack of responses on this topic. Further, according to the applicant’s oral evidence in the hearing, he claims to have converted or “changed his religion” from Hinduism to Christianity. The Tribunal considers that making the decision to convert from one religion to another, particularly in a country such as India where the applicant claims to have converted from the majority Hindu religion of his family to Christianity, which is a small minority religion in India,[3] is a significant personal decision and someone who pursued this path would be able to verbally articulate their reasons in some detail and may, indeed, be keen to do so. The applicant’s inability or unwillingness to answer the Tribunal’s questions about his chosen religion and to talk about his religious faith, or even to explain why he had written “Hindu” as his religion in his protection visa application form and said he was a Hindu in his written statement when he claimed to be a Christian, raises serious concerns for the Tribunal about the credibility of his religious conversion claim and his claims of harm which flow from this.
The applicant’s claim to have been threatened and attacked in India
[3] See DFAT Report at 3.32, 3.54.
In his protection visa application form and written statement, the applicant does not claim that he was threatened or suffered physical harm in India as result of his conversion, or planned conversion, to Christianity. In his written statement he appears to claim that since being in Australia he had received a phone call saying that if he converted he would be killed if he returned to India.
In the Tribunal hearing, the applicant gave evidence that he had received a threatening phone call from people who want to kill him. First, he said he did not know who the call was from and later he said the call was from a member of Bajrang Dal and he knows this because they said so. They said “you changed your religion and we will kill you”. He then said he received three calls but he did not know the dates. The Tribunal asked him when the last call was and he said it was 10 November 2022, which is the date he told the Tribunal he changed his religion. The Tribunal asked him how long before that the other calls were and after a long pause, the applicant said “20 days after I changed the religion”. The Tribunal pointed out to him that he had said the last call was 10 November 2022 and so his response that the other calls came after this didn’t make sense. He corrected himself and said the other calls were before that. The Tribunal asked him why these people called him before he changed his religion and what they said. He said they threatened to kill him. The Tribunal asked him whether he had any other problems in India apart from these phone calls. The applicant said he did not.
The Tribunal asked him what he did after receiving the calls. The applicant said he complained to the police about the threats on 10 November 2022 which is the day he received the last call. He gave evidence that he did not make a First Information Report[4] to the police. When asked why not, he said he did not know. When asked what the police said to him, he responded that they made him wait and then they wrote the complaint on 10 November 2022. The Tribunal asked him whether he had a copy of what they wrote and he said he had submitted it. The Tribunal explained to the applicant that the only document it had received was the statutory declaration of [Mr A] and asked the applicant whether he could tell the Tribunal about that document. The applicant responded “no”. The Tribunal asked him again what he could say about the statutory declaration and the applicant was silent and did not answer the question. The Tribunal asked the applicant again whether there was anything he would like to say about the statutory declaration and why it is relevant to his case. He responded that [Mr A] was there with him because the police asked for a witness. The Tribunal pointed out that [Mr A] does not mention anything in his statutory declaration about going with the applicant to report threats to the police. The Tribunal also pointed out that [Mr A] says that the threatening phone calls to the applicant and his family had continued, which was different from the evidence the applicant had given in the hearing which was that the last call he received was on 10 November 2022. The Tribunal put to the applicant that this raised a concern about whether he was telling the truth and whether the information in the statutory declaration from [Mr A] was truthful and asked the applicant whether he had anything to say about this. The applicant responded that he did not.
[4] See DFAT Report at 5.10; (accessed 17 May 2023)
The Tribunal asked the applicant whether there was anything else that had happened in India that he wanted to tell the Tribunal about. He said there was nothing else. The Tribunal reiterated its concern about whether his evidence in the hearing had been truthful. The applicant responded that it is true and once there was an attack on him as well. The applicant was not very forthcoming with his evidence about the attack and so the Tribunal asked him a series of quite specific questions in an effort to draw out some evidence. The applicant’s evidence was that the attack happened on 10 November 2022 in the morning when he was on his way to the village coming from the city. Three people who were leaders of Bajrang Dal beat him with sticks. He suffered internal injuries but did not require medical treatment. They said to him that since he changed his religion, they will kill him. He was on his motorbike and they brought their motorbike in front of him to block him. He does not know how they knew who he was or how they would have known he was in that particular location at that time for them to attack him. He did not have anything more to add about this incident.
The Tribunal asked the applicant whether he reported this incident to the police. He said he did not because they threatened him that if he complained to the police they will kill him. The Tribunal pointed out to him that he had reported the claimed phone calls to the police despite the threats to kill him and the applicant agreed. The Tribunal expressed its concern about this apparent contradiction, as well as the applicant’s claim that this attack happened on the same day as he claims to have changed his religion and received the last phone call and reported the calls to the police. The Tribunal also expressed its concern that this seemed like a significant event and it would have expected him to have mentioned it in his protection visa application form and/or written statement if it were true. The Tribunal asked the applicant whether he would like to comment and he said “no”. The Tribunal also noted that [Mr A] does not mention this attack in his statutory declaration. The Tribunal asked the applicant whether anything else happened that he wanted to tell the Tribunal about and he said “no”.
The Tribunal has a number of concerns about the applicant’s claims to have been threatened and attacked in India. The evidence he gave in the Tribunal hearing is not consistent with the claims made in his protection visa application form or his written statement, which raises a concern about the overall credibility of his claims. If the applicant had truly been threatened or attacked in India as he claimed in the Tribunal hearing, the Tribunal would have expected him to refer to this in his protection visa application form and his written statement. A threatening phone call is mentioned in his written statement but it suggests he received that call in Australia. He did not refer to this in the Tribunal hearing. There is no mention of a physical attack having taken place in India in either written document. In the Tribunal hearing, the applicant changed aspects of his evidence in relation to the threatening phone calls, such as who the calls were from, how many calls there were and when he received the calls as the Tribunal’s questions progressed. The Tribunal had the impression that he was adjusting his evidence in response to the Tribunal’s questions and concerns.
Further, the applicant’s evidence about the phone calls ending is not consistent with the information in [Mr A]’s statutory declaration which suggests the calls have been ongoing. The applicant initially told the Tribunal that he did not have any problems other than the threatening phone calls but then gave evidence about a physical attack. As mentioned above, this evidence about the attack was largely given in response to questions asked by the Tribunal rather than offered spontaneously by the applicant and there are aspects of the applicant’s evidence, such as not reporting the attack to the police due to threats to his life when he claims he reported the phone calls despite threats to his life, that do not make sense to the Tribunal. Again, neither the reporting to police nor the physical attack are mentioned in [Mr A]’s statutory declaration. The applicant’s unwillingness or reluctance to respond to the Tribunal’s concerns about aspects of his evidence also raises concerns about his credibility and the genuineness of his claims. For all these reasons, the Tribunal has concerns about the credibility of the applicant’s claims to have been threatened and attacked and whether the information contained in the statutory declaration from [Mr A] is true.
Information contained in the applicant’s Visitor visa application form
In the Tribunal hearing, the Tribunal put to the applicant under the s 424AA process concerns it had about aspects of his evidence and his credibility due to differences in information provided in his Visitor visa application compared to his protection visa application.

The Tribunal put to the applicant that records from the Department show that in his Visitor Visa application made on 2 December 2022 he said he was employed by [Employer 1] since November 2018 as [an Occupation 1] and he provided documents to support this. He also said that he was coming to Australia for a visit as a tourist. The Tribunal put to the applicant that in the Tribunal hearing, he had confirmed that all the information he provided in his Visitor visa application was correct. He had also told the Tribunal in the hearing that in India he only worked in a shop and a [workplace] and that he came to Australia because he was afraid for his life.
The Tribunal put to the applicant that this information is relevant because it may lead the Tribunal to find that he provided bogus documents and false information in support of his Visitor visa application and if the Tribunal relies on this information, it may lead the Tribunal to find that he is a person who is prepared to provide false documents and information in support of an Australian visa application. The Tribunal explained to the applicant that the information may lead the Tribunal to doubt his truthfulness as a witness generally and to doubt the credibility of his claims for protection and it might consider that the reason he applied for a protection visa was simply to obtain a permanent migration outcome to Australia. The Tribunal explained to the applicant that the consequence of this might be that the Tribunal considers his claims about being killed by Bajrang Dal are not true and that he does not have a well-founded fear of persecution if he returns to India in the reasonably foreseeable future or that there is a real risk of significant harm as a necessary and foreseeable consequence of him being removed from Australia to India. The Tribunal explained that if it does not accept that the applicant has given truthful evidence, he may not be entitled to a protection visa. The Tribunal invited the applicant to comment on or respond to the information but he declined.
The Tribunal acknowledges that genuine asylum seekers may provide false information and bogus documents to authorities in order to facilitate their flight from harm. The Tribunal finds that the applicant provided false information in his Visitor visa application about his employment and his intentions in coming to Australia. In light of the Tribunal’s findings below, the Tribunal does not accept that the applicant is a genuine asylum seeker. The applicant’s actions in providing false information in his Visitor visa application add to the Tribunal’s reservations about his overall credibility as a witness and the truthfulness of his claims for protection.
Findings
Having considered all the applicant’s claims and evidence individually and on a cumulative basis, in light of the Tribunal’s concerns set out above, the Tribunal finds that the applicant is not a witness of truth. For the reasons set out above, the Tribunal does not accept the applicant’s central claim which relates to his conversion to Christianity. In light of this, and in light of the Tribunal’s concerns about his credibility and the truthfulness of his evidence more broadly, the Tribunal also does not accept the applicant’s claims which flow from this.
The Tribunal accepts the applicant was born in India and that until he came to Australia he always lived at [Location 1], Karnal, Haryana state. The Tribunal accepts that in India he has his parents, a brother and a sister and that his father is a farmer. The Tribunal finds that in India, the applicant worked for around two years in a [Workplace 1] and also worked in his brother’s shop. The Tribunal does not accept that the applicant ever worked as [an Occupation 1] for [Employer 1] or that he came to Australia for the purpose of tourism.
Based on the Tribunal’s concerns set out above, the Tribunal does not accept that the applicant intends to convert, or has already converted, to Christianity or that he is a Christian. The Tribunal does not accept that he converted to Christianity on 10 November 2022 or on any other date. The Tribunal does not accept that the applicant started going to church in India. The Tribunal does not accept that the applicant was baptised in India. The Tribunal does not accept that the applicant has chosen Christianity as his religion or that he wanted to follow its rules. It follows that the Tribunal also does not accept the applicant’s claimed reasons for making his choice to convert, including that it is unsafe for Hindus in India or that Christians have fewer problems in India than Hindu or Muslim people, or that he started attending church to try to improve his mental health, or that he found peace and happiness through his church attendance or that he started attending with his friend and liked the people there.
As the Tribunal does not accept that the applicant has converted, or intends to convert, to Christianity, it follows that the Tribunal also does not accept his claims to have been threatened or harmed as a result of this. The Tribunal does not accept that the applicant’s parents made a big issue when they found out about his decision, or that they threatened the applicant or that they threatened to kill themselves. The Tribunal does not accept that the applicant’s family’s religious head found out, or that the applicant received a phone call from his country threatening that if he converts he will be killed on his return to India or that his parents will be killed. As the Tribunal does not accept the applicant has converted, or intends to convert, to Christianity, it does not accept that his family and friends do not support him or his choice, or that it affected his ability to complete his studies. It also follows that the Tribunal does not accept that on 10 November 2022, or on any other date, the applicant received phone calls from people from Bajrang Dal or anyone else, in which they threatened to kill him for changing his religion. It also follows that the Tribunal does not accept that on 10 November 2022, or on any other date, the applicant was physically attacked or injured by people from Bajrang Dal, or by anyone else, for changing his religion or for any other reason. Because it does not accept that these events occurred, it also follows that the Tribunal does not accept the applicant reported either or both of these events to the police with or without his friend [Mr A]. It also follows that the Tribunal does not accept the information contained in the statutory declaration of [Mr A] about the applicant being threatened by Hindu community leaders, or the applicant receiving repeated threatening phone calls, or that he and his family continue to be threatened by these people, to be true.
The Tribunal finds that the applicant is, and always has been, a Hindu and that his family are Hindus as well. As the Tribunal does not accept the applicant’s claims about converting to Christianity, it follows that the Tribunal does not accept that he is continuing with the local church or that he wishes to become a priest.
The Tribunal does not accept that the applicant left India in fear of his life or that he fears returning there for the reasons he claims.
Does the applicant meet the refugee criterion?
In his protection visa application form, the applicant claims that if he returns to India he will be killed by jihadis, or his Hindu guru, or people from the Hindu group Bajrang Dal because of his conversion to Christianity. For the reasons set out above, the Tribunal does not accept that the applicant has converted, or intends to convert, to Christianity or that he is a Christian and therefore the Tribunal does not accept the applicant’s claim. Therefore, the Tribunal finds that the applicant would not face a real chance of serious harm arising from these circumstances if he returns to India in the reasonably foreseeable future.
In his written statement, the applicant claims that if he returns to India he will be killed by people who threatened him over the phone about his conversion and his intention to become a priest. For the reasons set out above, the Tribunal does not accept that the applicant has converted, or intends to convert, to Christianity or that he is a Christian. The Tribunal also does not accept that he has received threats over the phone or that he intends to become a priest. Therefore the Tribunal does not accept the applicant’s claims and finds that the applicant would not face a real chance of serious harm arising from these circumstances if he returns to India in the reasonably foreseeable future.
In the Tribunal hearing, the applicant claimed that he fears returning to India because the people from Bajrang Dal will kill him because he changed his religion. For the reasons set out above, the Tribunal does not accept that the applicant has converted, or intends to convert, to Christianity or that he is a Christian or that he was ever threatened or attacked by people from Bajrang Dal and therefore the Tribunal does not accept the applicant’s claim. Therefore, the Tribunal finds that the applicant would not face a real chance of serious harm arising from these circumstances if he returns to India in the reasonably foreseeable future.
The Tribunal notes that in his protection visa application form and written statement he has referred to the situation in India for Hindus, Muslims and Christians and provided some commentary about religious conflict and its consequences. As the source of the information he has provided is not referenced or identified, the Tribunal does not accept it. Further, given the applicant provided this information in the context of supporting his claims to fear harm as a Christian and the Tribunal does not accept this claim, the Tribunal does not accept the country information he has provided as relevant.
Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to India now or in the foreseeable future that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[5] 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).
[5] 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.
…

[2023] AATA 1908

18 May 2023

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction