2311059 (Refugee)

[2023] AATA 4564

2311059 (Refugee) [2023] AATA 4564 (10 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2311059

COUNTRY OF REFERENCE:                   India

MEMBER:Simone Burford

DATE:10 November 2023

PLACE OF DECISION:  Perth

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

Statement made on 10 November 2023 at 2:26pm

CATCHWORDS

REFUGEE – protection visa – India – political opinion – attack by Akali Dal activist – physical violence – fear of killing – death of the applicant’s wife – internal relocation – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 66, 424AA, 499
Migration Regulations 1994, Schedule 2; r 4.31

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
CQG15 v MIBP [2016] FCAFC 146
DAJ19 v Minister for Immigration [2020] FCCA 2142
DAO v Minister for Immigration and Border Protection [2018] FCFCA 2
DFQ17 v MIBP [2019] FCAFC 64
Guo Wei Rong and Pan Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
Iyer v MIMA [2000] FCA 52
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 June 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   Background

2. The applicant is [an age]-year-old Indian citizen. According to his application for protection he was born in [his home town in] Haryana, India.  He identified himself as Sikh and ethnically Punjabi.  He claimed he had been married but his wife is now deceased.

3. Prior to coming to Australia, he was living in [a location in] [Town 1], Chandigarh in the state of Punjab. His parents remain living in India.  He has a sister living in Australia and who he indicated is an Australian citizen.

4. He completed a [qualification] at [University 1] in Chandigarh in [specified year].

5. The applicant first arrived in Australia with his wife [in] May 2019 on a visitor visa. He applied for the protection visa on 17 June 2023.

   Jurisdiction issue

6. The applicant was notified of the decision to refuse his visa by email on 29 June 2023. He lodged the application for review on 26 July 2023.

7. The notification letter indicated that the applicant had 28 days in which to lodge an application for review with the Tribunal. However, as the notification letter makes clear, at the time the notification was made the applicant was in Immigration detention at [a location]. 

8. The obligation in s 66(2)(d)(ii) to state the time in which the review application may be made requires that it be conveyed in a complete and clear manner. A notification that lacks clarity in stating the time within which a review application must be lodged will not be a valid notification under the Act and the prescribed period for applying for review will not have started to run.[1]

   [1] DFQ17 v MIBP [2019] FCAFC 64.

9. In relation to notification of a Part-7 reviewable decision where the applicant is in Immigration detention on the day of notification, to be a valid notification it must clearly convey that the prescribed period of 7 working days commences on the day the applicant is notified of the decision or, if that day is not a working day, that it commences on the first working day after the day the applicant is notified.[2]

   [2] Migration Regulations 1994 (Cth), reg 4.31.

10. As the applicant was in Immigration detention at the time the notice was given, the time for seeking review was 7 days.  As the notice incorrectly advised the review period was 28 days the notice was defective. A failure to properly notify an applicant does not affect the validity of the primary decision,[3] however, the time periods for review do not commence until a decision has been properly notified. Accordingly, the time for review has not yet commenced to run and the Tribunal considers it has jurisdiction to conduct the review.

    [3] Section 66(4).

    Issues

11. The issues in this review are whether there is a real chance that, if he returns to India, the applicant will be persecuted for one or more of the 5 reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to India, there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa) of the Act.

12. For the following reasons, the Tribunal has concluded that the decision to refuse the applicant a visa should be affirmed.

    CLAIMS AND EVIDENCE

    Protection claims

    Protection visa application

13. The applicant filed his application for a protection visa on 17 June 2023.

14. The applicant initially presented his claims in his protection visa application, in which he claimed, in summary:

    ·He left his country because he was threatened and harmed by a politically influential individual called [Mr A];

    ·He did not seek any assistance in India because [Mr A] was a strong politician, who has connections with the government of Punjab as well as the Central government;

    ·He moved to other parts of his country and went into hiding for several years; however, [Mr A] has connections throughout India and would be able to find the applicant;

    ·If he returns to India, he will be persecuted by [Mr A], who is [a leader] of a political party called ‘Akal Dal Punjab’;

    ·As a member of a university group called ‘[Group 1]’, he knew many secrets about [Mr A];

    ·He cannot seek assistance from the Indian authorities because they themselves want to harm him.

15. The applicant submitted a copy of his Indian passport issued [in] 2019.

16. According to the delegate’s decision, the applicant was invited to provide additional information relating his claims by letter dated 21 June 2023. The invitation advised the applicant that his statement of claims lacked substantiating details such as dates and locations, and supporting documentation regarding his claims and advised the applicant that, in order for the delegate to be satisfied that his claims for protection were genuine, he was invited to provide more information about what happened to him in India, including dates, and locations of events. The correspondence also advised the applicant that, if he could not provide copies of documents or details of his claims as invited, he should provide a detailed explanation of why he could not do so, and of the efforts he made to obtain these documents.

17. This correspondence also informed the applicant that if he did not respond to the invitation within the specified timeframe, the Department could decide the application with the information it had at that time without asking his for further information again. The correspondence advised the applicant that if he could not respond to the invitation within the specified timeframe, he should contact the Department requesting more time to provide the information.

18. In response to the invitation to provide further information the applicant provided a submission to the Department indicating that:

    ·He did not apply for a protection visa earlier because he was hopeful of receiving permanent residency through his wife, who was studying in Australia to become [an occupation 1]; however, his wife passed away, leaving him and their only son. Subsequently, the applicant suffered from depression and stress. Later he moved to Sydney and stayed with one of his cousins;

    ·The student group that he joined in India was registered by [Leader Alias B] (AKA [Leader B]) and his brother [Leader C] (AKA [Leader Alias C]). In addition to this submission, the following documents and YouTube links were provided in support of the applicant’s claims for protection:

    §A screenshot showing the applicant allegedly with [Leader Alias B];

    §A link to a video on YouTube about the [life] of a ‘gangster’ by the name of [Leader B] in Punjab;

    §Two links to news articles concerning [Mr A name variant].

19. The applicant was not interviewed by the Department in relation to the application.

    The delegate’s decision

20. On 29 June 2023 the delegate refused to grant the visa on the basis that they were not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in the Act and he was not a member of the same family unit as a non-citizen in respect of whom Australia has protection obligations.

21. The delegate raised the following concerns which they found were not addressed in responses from the applicant:

    ·The applicant claimed that he did not apply for a protection visa in Australia since his arrival in 2019 because he believed that he could gain permanent residency through his wife, as she was studying to be [an occupation 1], a highly demanded profession in Australia. However, the applicant did not provide specific information or documentary evidence to support this claim, including precise details about the steps they undertook to gain permanent residency;

    ·The applicant claimed to have been a member of a university group in India named the [Group 1]. The applicant stated that the group was established by [Leader Alias B] (AKA [Leader B]) and his brother [Leader C] (AKA [Leader Alias C]), and he invited the Department to validate this information by contacting Punjab and Chandigarh Police in India. He also requested the Department to contact his university in India to obtain proof that he shared his room with [Leader B] and [Leader C]. The delegate noted it was for the applicant to provide all the particulars of his claims and that it is not the responsibility of the Department to seek evidence on behalf of the applicant to support his claims. In addition, the applicant provided a video link and a screenshot from a YouTube video showing him and [Leader Alias B] posing together. The description section of this YouTube video referred to [Leader Alias B] as a ‘Gangster’ and that he was dead. The video was not verified. The delegate found there were no specific details or evidence to suggest that the applicant was affiliated with [Leader B] and [Leader C] or that they have established a university group as stated;

    ·The applicant claims that he was persecuted by an influential party leader in Punjab named [Mr A] because the applicant knew secrets about him. The applicant alleged that this person is highly connected and will harm and even kill him upon his return to India for this reason. The applicant did not provide any details of the alleged persecution he received from [Mr A], including dates and locations. Furthermore, he did not provide any meaningful details regarding the nature of the relationship between him and [Mr A] or explain any of these secrets that will warrant his harm. The applicant provided a couple of articles from an Indian news website claiming to support his claims. The first article published in August 2015 indicates that [as Official 1], [Mr A] was accused of obstructing [an] investigation by attempting to transfer an [investigator] from his position. The article also states that ‘the [Court 1] continued the stay on [the officers] transfer’. The second article indicates that [Mr A], now a former [Official 1], was arrested under the [named] Act (India) and jailed before he was granted bail in May 2022. The delegate considered that although [Mr A] seemed to have held the position of [Official 1] in the past, his decisions were repealed and he was accused, jailed and released on bail under the law for alleged crimes that he had committed. As such, the delegate did not find the articles to indicate that [Mr A] was influential to the degree of inflicting arbitrary harm on the applicant by using his connections and did not give weight to the applicant’s provided evidence concerning [Mr A’s] political influence. The delegate was not satisfied that the applicant was persecuted by [Mr A] in the past for the reasons claimed.

22. Based on these findings, the delegate found the applicant was not a person in respect of whom Australia has protection obligations as provided for by s 36(2)(a) or s 36(2)(aa).

    Review application

23. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 26 July 2023. He provided a copy of the delegate’s decision to the Tribunal. Other than the material provided to the delegate, the applicant did not provide any further information in support of his application for review. There was no record of the applicant being represented in relation to the application for the visa or the review.

24. The applicant appeared before the Tribunal on 8 September 2023 to give evidence and present arguments. The applicant appeared in person.

25. The hearing was conducted with the assistance of an interpreter fluent in the English and Punjabi languages.

26. The applicant’s claims for protection and the evidence on which he was seeking to rely in support of his claims were discussed at the hearing. 

27. The Tribunal notes that it discussed with the applicant at the hearing what was then the current Department of Foreign Affairs and Trade (DFAT) Country Information Report: India dated 10 December 2020 (the 2019 DFAT Report) in considering the claims raised in the application. On 29 December 2023, DFAT released an updated country information report for India – the Country Information Report: India dated 29 September 2023 (the 2023 DFAT Report).  The Tribunal considered the content of that report with respect to the applicant’s claims.  The Tribunal considers that the general content of the report as it relates to the applicant’s claims is consistent with the 2023 DFAT Report and with other country information discussed at the hearing. 

28. Following release of the 2023 DFAT Report the Tribunal wrote to the applicant on 29 September 2023 and provided a copy of the report.  The Tribunal invited the applicant to make any submissions regarding the report relevant to his claims for protection.  The applicant was asked to provide any information or comments by 9 October 2023. As at the time of this decision, no response was received from the applicant.

    CRITERIA FOR A PROTECTION VISA

29. 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.

30. 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.

31. 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).

32. 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.

33. 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

34. 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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

35. As noted earlier, the Tribunal discussed with the applicant at the hearing the 2019 DFAT Report, which was then the current DFAT country information report relating to India, in considering the claims raised in the application. The Tribunal has also considered the most recent DFAT report − the 2023 DFAT Report. The Tribunal considers that the information contained in the most recent report was materially the same as the country information put to the applicant at the hearings as it related to his claims and as such that it raised no new issues with respect to the application for review.

36. The Tribunal has included references to both the 2019 DFAT Report and the 2023 DFAT Report where relevant. The Tribunal was satisfied that the issues arising from the 2023 DFAT Report had been raised with the applicant at the hearing.  Accordingly, the Tribunal determined that a further hearing was not required as no new dispositive issues were raised by the 2023 DFAT Report.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Applicant identity and country of reference

37. The applicant claims to be a citizen of India. As noted earlier, the applicant provided a copy of his Indian passport to the Department.  The delegate accepted the applicant’s identity. The applicant told the Tribunal he lost his passport when he moved from Melbourne to Sydney around 2 months prior to entering detention in January 2022.  However, there is nothing before the Tribunal to suggest that the applicant is not the person identified in the relevant application for protection.

38. The Tribunal finds that the applicant is a citizen of India, which is also his receiving country for the purposes of the refugee and complementary protection assessments.

    Evidence

1. Prior to coming to Australia, the applicant was living in [Town 1 in] Chandigarh, Punjab.  Chandigarh is the capital of the Northern Indian states of Punjab and Haryana.  He said prior to leaving he was living at two addresses, one in Chandigarh and one in [Town 2], Haryana – about [distance] away.  He was living at two addresses because of the ‘political issue’. His mother and his son were living in Chandigarh. His son is [age] years old and attending school in Chandigarh.  He has been attending school in Chandigarh since before the applicant came to Australia. He claimed his father and his wife are recently deceased. He has a sister living in Melbourne.  She came to Australia after she married, around 8-9 years ago.  He also has a cousin in Sydney who is married.  His cousin’s wife is a permanent resident.

2. The applicant told the Tribunal he moved from Melbourne to Sydney around 2 months prior to entering detention in January 2022.  Prior to that he was in hotel detention for 2 weeks in the city.  The Tribunal asked why he was placed in detention and he said his wife ‘expired’ and ‘my visa got finished and they sent me into detention’.  The Tribunal understood him to be saying his wife had died and his visa expired.  The Tribunal asked if he knew when his visa expired and he said it was in December 2021, 12 days before he was detained.

3. Prior to coming to Australia, he had travelled to [Country 1], [Country 2] and [Country 3] on holidays in 2003-2004.  He had also spent 12 months working in [Country 4] in 2008.

4. In India, he had been [working as an occupation 2] for about 1 year before he came to Australia.  Prior to that he had been working on a family farm.  The farm was sold in early 2019. Money from the sale was used for visa purposes to come to Australia. He came to Australia with his wife and his son remained living in India, splitting time between [Town 2] with his parents and the applicant’s house in Chandigarh where he went to school.

5. His mother moved to Chandigarh to care for his son after his wife died. The Tribunal asked about his wife’s death and he told the Tribunal she went home to India in September 2021 for the wedding of her brother. While she was there she had an asthma attack and died.  She was in [Town 2] with her family at the time.  She has a mother, father and [specified family members] remaining in India.

6. The Tribunal asked when his mother moved to Chandigarh and he said that when he and his wife came to Australia, his mother moved to Chandigarh for his son’s study. Before his wife died his mother was not living with his son permanently. Sometimes he lived with the applicant’s aunt in Chandigarh and sometimes in a hostel.

7. He said his father died after he was taken into detention.  He said when they held him in detention he told his parents and his father ‘got very stressed and had a [medical condition]’.  This was in January 2022.  At this time he was living in [Town 2] but he died in Chandigarh because that is where he was admitted to hospital.  He said [Town 2] was just a small town and didn’t have the medical facilities so he went to Chandigarh for treatment.

8. He said he owned a property in Chandigarh which his father bought for him in 2013.  He lived there ‘properly’ after it was purchased.  He married in 2010. His wife’s family was from near [Town 2] and the marriage was arranged in 2009 by the applicant’s grandfather. Their son was born on [date].

9. The Tribunal asked why he came to Australia and he said ‘because life over there was not secure’.  His father asked his sister to arrange visitors visas for them.  Once they arrived they obtained student visas.  His wife was doing a [course] in Melbourne.  She had completed one semester when she returned to India and passed away over there.  He said the plan was to apply for student visas, get settled and then bring their son over.  He said they didn’t have sufficient resources to bring him when they first got student visas as they were ‘just surviving’. He was working at a [business] and doing [occupation 2] and other [related] services while his wife was studying.

10. The applicant said his wife’s name was [Wife A]. He said she returned in September 2021 and died on [a day in] November 2021.  She was born in [year range]. He said she was an asthma patient and had been treated at [a named] Hospital for some time for that condition when in Australia. 

11. The Tribunal asked why the applicant had not returned to India with his wife and he said   because of the issue at home.  The Tribunal asked what he did when she left.  He said for a month he stayed in Melbourne and then when he came to know what had happened he moved in with a friend in Sydney.

12. The Tribunal asked why he had applied for protection and he said that it was university issues and because his life was in danger if he went back. The Tribunal asked why his life was at risk and he said 2 films were made about him and his friend, [Leader B], and they had issues with [Mr A].  He said ‘they’ kidnapped [Leader B] to a place and killed him in 2003. He said he was spending life sometimes in [Town 2] and sometimes in Punjab. He used to change his address.  He said that 2 or 3 of his friends got killed, whomever was linked to [Leader B], they were killed. The Tribunal asked who his friends were and he said [Leader C] and [Friend A] who is also depicted in the video. He said that in 2003 he went to [Country 1] and [Country 2] and when he came back they were both dead.

13. He said his father knew he was not safe, so he told his sister she needed to get him to come to Australia.  Because of that, when his wife went to India, once he came over here, he didn’t go back to India. He claimed that ‘even today, wherever he is’, because of the political issues, they will find him. He said there were many criminal cases against [Mr A]. He is involved in murders and ‘he used to deal in drugs and you can find so much information about him online’. The Tribunal asked what his connection to [Leader B] was and he said they strudied together and were good friends at the university.  He said in the movie someone played his character as ‘[nickname]’ because that is his nickname.  The Tribunal asked when they were studying and he said at [another] University in [year range].

14. The Tribunal asked what activities the applicant and [Leader B] were involved in that placed the applicant at risk on return. He said there was an [official] of a newspaper, [Mr D] and someone was against [Mr D] so [Mr A] called [Leader B] and told him to get [Mr D] killed or ‘break his hand’. [Leader B] recorded their conversation on a phone ([phone brand]). At that time [Leader B] told [Mr A] he had used them and they had proof he was planning to murder [Mr D].  As [Mr A] knew that he had recorded it on the phone, [Leader B] was kidnapped 10 days later. When they kidnapped him, they couldn’t get the phone but they killed him anyway. He said they thought the applicant and two other guys had the phone and those 2 got killed and that was why he was living in hiding.

15. The Tribunal asked when this was and he said in 2003.  The Tribunal asked why he would still be at risk because of something that happened in 2003 and he said ‘Because I knew they followed me 2 or 3 times and they attacked me at my house so I was living at 2 places’.

16. He said when he came back from overseas in 2003 he was attacked when he was on the road with a friend and they fired at them and he had a bullet wound in his leg. The Tribunal asked if he went to the hospital and he said ‘at that time yes’.  The Tribunal asked if there was any record of this and he said that at the time he didn’t make any police complaint because of the fear but the treatment for the bullet wound was done in the government hospital.  He said he had no records of this. He said he had a mark of a bullet on his leg.

17. The Tribunal asked if there were any incidents after that and the applicant attempted to show the Tribunal an injury to his elbow. He said a month after the bullet attack he was standing in the park and some guys came with baseball bats and they hit him on the arm and broke his arm. The Tribunal asked if they said anything to him and he said they were asking about the phone and where the phone was and he told them he didn’t know anything.  Then a large crowd gathered and they ran away.  The Tribunal asked where this occurred and he said it was in front of the university in Chandigarh.

18. The Tribunal asked if he was living in Chandigarh at that time and he said he was but after that he moved to Haryana and didn’t go to Chandigarh for 2 or 3 years.  The Tribunal asked if any other incidents happened after that and the applicant said he ‘started living in hiding’ and he grew a beard and wore a turban.  The Tribunal asked if anything else happened to him and he said, ‘after that no, I lived in hiding and they thought I moved somewhere’.

19. The Tribunal asked if the applicant or his family had been approached by anyone since then and he said his house was ‘targeted many times’ but he wasn’t at his house at the time.  He said this was when he was living in Chandigarh. The Tribunal asked which house this was and he said it was the house which he was renting and in which he was living in 2003.  After that they left and lived in Haryana.  The Tribunal asked whether he was approached or threatened after he left the house in Chandigarh and he said that they broke his arm about a year later after he went abroad and came back.  He said first they hit him with a bullet in 2003 and then they broke his arm in 2004.  The Tribunal asked if he reported this to police and he said no ‘because of political issues’. He said the whole police force was with him ([Mr A]).  The Tribunal asked if anything else happened after that incident in 2004 and he said after that he went into hiding.

20. The Tribunal asked where he was staying in Haryana and he said it was in [Town 2] with his parents.

21. Later, the Tribunal asked whether he had mentioned being attacked in his application for protection or material submitted to the Department and he said no because he didn’t know how to fill in the documents and he thought the guy helping him would tell him.  He said the guy helping him was from Punjab and he didn’t want to mention it all to him because he was from Punjab. The Tribunal notes the Department had written to him seeking further information and he said he told them about the bullet incident. The Tribunal noted he had been invited to provide further information by the Department and he said he mentioned the bullet incident and that he has a bullet wound and if he is lying they can deport him.

22. The Tribunal asked if there was any reason he had not listed the address in [Town 2] in his application for protection and he said because there was a guy filling it in for him who was also from Punjab and he didn’t want to mention it all to him.

23. The Tribunal notes the delegate’s decision indicated [Mr A] was on charges.  The Tribunal also noted that country information suggested he was released by [Court 1] on bail. The Tribunal put to the applicant that as noted in the delegate’s decision, the fact he had been on charges suggests that [Mr A] doesn’t hold political power placing him above the law and the applicant said that [Mr A] has political power because if he were a ‘common man’ and had these charges against him, ‘he wouldn’t have gotten away’. The Tribunal noted that being on bail meant he was awaiting a hearing on his charges and the applicant said [Mr A] went to jail so many times and has so many charges against him and he comes out.  He said [Mr A’s] background is very strong and when attacks happened on him he didn’t come himself he used to send people. 

24. The Tribunal asked whether he would live elsewhere in India if he was at risk in his home area in Punjab and he said he can only go where he knows.  The Tribunal noted country information suggested it was possible to relocate in India, which was a country of more than 1.2 billion people which suggests he may be able to relocate to another city without being detected and he said that in the other states the language is different and he doesn’t know anyone there.[4]  He said he doesn’t own any land and here his sister and cousin can support him until he gets work.

    [4] DFAT 2023 Report at [5.19]-[5.22]; DFAT 2020 Report at [5.29]-[5.38].

25. The Tribunal put to the applicant that the fact that the incidents occurred around 20 years ago and the fact he hadn’t been the subject of any attacks since 2003 or 2004 might suggest he was no longer at risk.  He said he used to live in hiding but queried how long can could continue to live in hiding.  The Tribunal noted that the fact his father had purchased a property for him in Chandigarh in 2013 and he had lived there before coming to Australia might also suggest he was not at risk in Chandigarh.  He said at the time of his marriage the house was small and his in-laws said ‘you need to buy a house to marry’ and it was in a ‘posh area’ and whenever he was there he was in hiding.

26. The Tribunal also noted that the fact he had left his son living in Chandigarh might suggest he did not regard himself or his family at risk there and he said no one knows his mother or his son. The Tribunal noted that the fact that even at the time the assailants were unable to locate him in hiding at his parents’ home where he had lived for a significant time and had been unable to locate him or did not approach members of his family who remained there might suggest he is not at risk from them in India. The applicant claimed those targeting him did not know his family members.

27. The Tribunal put to him that the fact he claims [Mr A] and his associates are unable to identify family members or find him at his parents’ place or in a property purchased for him, cast doubt on his claim they are powerful and connected in such a way that they present an ongoing risk to him around 20 years later.   He said that in Chandigarh he never went out in the open and only lived underground.  He said that since he has been in detention he only talks to his mother, not with his son because he thinks they will get a clue and target them. He said most of his relatives think he is missing or dead. 

28. The Tribunal asked how [Mr A] and his associates would know he had retuned and he said that his relatives would know. The Tribunal asked how anyone would know if he returned to India and he said that was why he asked for protection because he didn’t want to go. He said that if they see him they will know ‘he is alive and back’.  The Tribunal asked why if they had killed [Leader B] and his friends without obtaining the phone but they had not killed him when, according to his claims, they had several opportunities to do so, he said that he went overseas to [Country 1], [Country 2] and [Country 3] and from there when he came back he was attacked. After that, in 2007 and 2008 his father sent him to [Country 4].  The Tribunal asked why they didn’t kill him when they attacked him and he said the first time was on the bike with a friend and his leg was hit and his friend sped up and they got away.  The next time when he was being beaten, the public gathered around and they ran away.

29. The Tribunal discussed the documents the applicant submitted in support of the application. He said the photos were online photographs of him and [Leader B] which was proof he was ‘doing that’.  The Tribunal noted the videos were not in English and he said they were in Punjabi.  The Tribunal asked what he said was in the videos and he said there were  2 movies – ‘one is our whole journey how we started and everything and the other is a biography’ which starts with a picture of him and [Leader B]. ‘We had a relationship and that is why there is an issue and why if he goes back he is not safe’. Only one video link was provided in submissions, a link to the YouTube video. 

30. The Tribunal asked who made the videos and he said a Punjabi director made the movie and someone made the biography on YouTube and he saw it on online but he didn’t know who made it.  The movies were made in 2011 or 2012. In his written statement he stated in relation to the YouTube video:

    You can see the biography of [Leader B] you can see my pictures in it and it is available on YouTube I am going to attach it here you can see my photo on exact [number] sec by Starting video after [Leader B] picture. Here is my picture with [Leader B] and [Leader C]  standing black jacket and you can verify this photo India from his house or police station Punjab.

31. The Tribunal notes that the photo appearing at that point was also provided as a screen shot.  It depicts a person who may be the applicant standing next to another person identified in the video as [Leader B].  The phot is part of an opening montage of photographs featuring the person identified as [Leader B].  Details of the video are considered further below.

32. The Tribunal asked what the information or article regarding the Punjabi drug case was about and he said he was trying to show that [Mr A] who belongs to a political party was involved in these sorts of crimes.  The Tribunal asked about the article regarding [Mr E] and he said he didn’t know about that and hadn’t submitted any articles about [Mr E].  He then said a friend had helped him provide information about [Mr A’s] crimes and that was what the article was about. 

33. Given the applicant’s circumstances and the fact the video on the link was untranslated, the Tribunal asked the interpreter to translate the video.  That video was a biography of [Leader B] from YouTube.  According to the translation, the video was about [Leader B], a ‘gangster’.  The video askes if he is a gangster, ‘how did [an occupation 3] become a gangster?’.   The video explained the channel featuring the video provides videos about Punjabi [personalities].  The featured video provides a biography of [Leader B], explaining that he was [an occupation 3] who went to [University 1] who participated in friends’ ‘little fights’ helping friends and through that he became a ‘gangster type’ and people became his enemy.  The video stated that he was popular with villagers but had a number of FIRs (First Incident Reports) against his name including murder.  Because he helped people, he had enemies among political powers and in September 2003 he was kidnapped and tortured including being [killed] and eventually being thrown in a canal.  His body was found [days] later.  After his death his brother [Leader C] took over the group.  [Leader C] came back from [Country 5], where he was working, to avenge his death and took over the [student association] and he became known by political powers and FIRs were lodged against him including for ‘attempted murder’. In August 2017 he was murdered in his village.  Through [social media] a gang leader in [Country 6] by the name of [name] took responsibility. The reason given was that [Leader B’s] brother was using his name for cheap publicity. He had been a member of [Leader B’s] gang when he was alive.  The video noted 2 films were made about [Leader B] made with the permission of [Leader C]. It noted that the student group had more than 300 key members.

34. The video did not mention the applicant but the applicant claimed to be included in one of the photographs relating to [Leader B] appearing in the video in the opening montage of photos of [Leader B].

35. The Tribunal asked if there was any other reason he feared returning in addition to the reason he had told the Tribunal about.

36. The Tribunal put to the applicant information pursuant to its obligation under s 424AA of the Act to invite him to comment on or respond to the following information:

    ·The applicant told the Tribunal that his wife, [Wife A], left Australia in September 2021 to return to India for her brother’s funeral.  The applicant told the Tribunal she passed away in India of an asthma attack on [a day in] November 2021;

    ·Departmental records indicate that [Wife A], who is recorded in Departmental files as the applicant’s spouse on his prior student visa, departed Australia [later in] November 2021.  This is her first recorded  departure from Australia since arriving [in] May 2019;

    ·This information suggests that the applicant’s wife did not leave in September 2021 and did not die on [that day in] November 2021 as claimed.

1. The Tribunal explained this information was relevant to the review because, if accepted, it suggests the applicant has provided incorrect information to the Tribunal and to the Department in support of his protection visa application.  If accepted the information may cast doubt on the credibility of the information he provided in support of his protection visa application and on the claims the applicant has made and may cause the Tribunal to doubt the credibility of his evidence regarding his fears of serious or significant harm on return to India.   The Tribunal explained that if it found the applicant’s evidence and claims are not credible, this may cause the Tribunal not to accept that the applicant has a well-founded fear of persecution if he returns to India or that there is a real risk that he will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to India for the reasons he has claimed. 

2. The Tribunal explained that if it accepted this information it may be the reason or part of the reason for affirming the decision under review.

3. The Tribunal asked the applicant if he would like an adjournment to consider his response and he declined, indicating he wanted to respond at the hearing.

4. In response to the information the applicant told the Tribunal that his father had died 10 to 12 days after he was detained by Immigration and before that his wife had died and for that reason he ‘was like in a coma’.  He said that since these incidents were happening he doesn’t remember proper dates.  He said that at the time he filed the visa application he wasn’t in touch with family back home.

5. The Tribunal put to him that it might be hard for the Tribunal to accept that he would forget his wife only left shortly before he says he was taken into detention, rather than in September and that he would get the date of her death wrong. He said he doesn’t remember the dates ‘because of the tragedies’ but he accepted the ‘dates issue’.  He said, ‘if you think I am lying you can deport me’. He noted he didn’t even remember his wife’s date of birth.

6. The Tribunal asked if he had any supporting evidence regarding his wife’s death and he said he could only get proof from India but he wasn’t in touch with anyone in India.    He knew about his father’s death through his cousin.  The Tribunal asked about how he found out about his wife and he said she went to the wedding and 2-3 days after the wedding she died and he found out about that through his cousin, his aunt’s son, and his mother. The Tribunal asked if his mother had told him about his father’s death and he said she was in shock and so it was his cousin who told him but he spoke to his mum about 20-22 days later.

7. The Tribunal asked where he was when he was told about his wife’s death and he said at the time he was in Sydney in [Suburb 1].  First he came to know through relatives then he went to Sydney and he spoke to his mother and she said the in-laws were upset with him and they didn’t go there.  The Tribunal asked why the in-laws would be upset with him and he said because he had so many problems in his life and couldn’t come to the wedding and when she left Australia she was in distress.  He said before the marriage they didn’t know about his story, about his links with [Leader B]. He said he didn’t used to talk to the in-laws much and when he didn’t go to the wedding because his life was in danger they were upset.

8. The Tribunal asked when the student visa was due to cease and he said he couldn’t remember the date but it was December 2021. The Tribunal asked what they were going to do after December 2021 and he said that if his wife could have come back she would continue her study.  The Tribunal asked when she was due to return and he said the plan was to go there and try and get their son’s visa otherwise she was planning to come back within a month. The Tribunal asked if she had applied for another visa and he said no. The Tribunal noted she had less than a month to run on the visa she held when she left and he said that she was supposed to come back within a month and they were planning to apply for another visa to continue the study visa. The Tribunal put to the applicant that given the timing it appeared she would have needed to do that before the visa was to expire and he said the plan was they would apply for another visa and he would save some money in the meantime.   

9. For the reasons discussed further below the Tribunal considered the applicant’s responses to the information put to him were implausible and lacked credibility. The Tribunal’s concerns regarding the credibility of the applicant’s evidence are considered further below.

   Analysis, reasons and findings

10. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[5]

    [5] Summaries of the principles relating to credibility findings were provided by the Federal Court and Federal Circuit Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36]–[38] per McKerracher, Griffiths and Rangiah JJ; DAO v Minister for Immigration and Border Protection [2018] FCFCA 2 at [30] per Kenny, Kerr and Perry JJ; DAJ19 v Minister for Immigration [2020] FCCA 2142 at [69]–[70] per Nicholls J.

11. The courts have made it clear that it is important that the Tribunal be sensitive to the difficulties faced by asylum seekers and that it adopt a reasonable approach in making its findings of credibility.[6] Further, in assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[7]

    [6] Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559; Abebe v The Commonwealth of Australia (1999) 197 CLR 510; Randhawa v MILGEA (1994) 52 FCR 437; Selvadurai v MIEA & Anor (1994) 34 ALD 347; Guo Wei Rong and Pan Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445; Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198; Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547; and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

    [7] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.

12. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[8] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[9]

    [8] MIMA v Rajalingam (1999) 93 FCR 220.

    [9] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.

13. However, the Tribunal is mindful that legal reasonableness is a requirement of lawful decision making.[10] In this regard, the Tribunal is guided by the courts’ consideration of how credibility findings might be affected by legal unreasonableness.[11]

    [10] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4], [80, [89]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26], [29], [63], [88].

    [11] See for example the observations of the Federal Court on the principles applying to the assessment of credibility in BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]-[34] per Rangiah, Perry and Bromwich JJ; see also the discussion in SZVAP and Minister for Immigration and Border Protection [2015] FCA 1089 per Flick J.

14. Further, the Tribunal notes that a decision maker is entitled to consider whether an applicant subjectively holds a well-founded fear of persecution before examining whether such a fear is objectively well-founded or to proceed on the assumption that such a fear is held. If the decision maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied.[12]

    [12] Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].

15. The Tribunal has carefully considered the claims of the applicant in his original application for protection and his subsequent application to this Tribunal, individually and then cumulatively.

16. As noted earlier, the mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is well-founded or that it is for the reason claimed. It is the responsibility of an applicant to specify all particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.  The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. 

17. The Tribunal has significant concerns about the credibility of the applicant’s claims. There were significant inconsistencies in aspects of his core claims in relation to events which occurred in India in 2003 and 2004 including with respect to his engagement or involvement with [Mr A] or his associates. Further, with respect to aspects of his claims he struggled to provide meaningful detail and context and failed to provide any corroborative evidence regarding his claims.  In addition, his explanations for what amounted to significant inconsistencies in his account of his personal circumstances and, in particularly, his wife’s claimed death, were implausible.

18. The Tribunal gave careful consideration to the applicant’s responses to issues of inconsistent or implausible evidence.  The Tribunal is mindful of the passage of time and the effect this may have on the ability of the applicant to precisely recall dates and events.  The Tribunal is also mindful of the impact the applicant’s claimed mental health issues may have on his evidence. However, the Tribunal notes there was no medical evidence before the Tribunal to suggest the applicant was suffering from any physical or mental health condition which might impact his recollection of events of significance, such as the death of a spouse, which occurred as recently as the end of 2021.  The Tribunal does not accept the applicant is suffering from any condition which impacts his ability to articulate his claims or provide credible evidence as claimed. 

19. The Tribunal was careful to give the applicant the opportunity to comment on or clarify apparently inconsistent statements and to point to corroborating evidence where, in the Tribunal’s view, it is reasonable to expect it would have been possible for the applicant to provide it, this would include evidence with respect to claimed attacks and treatment for resulting injuries in India  This was particularly the case with respect to the applicant’s claimed personal circumstances and the claimed attacks in India. No corroborative evidence was provided. No reasonable explanation for the failure to provide such evidence was offered.

20. In considering these issues the Tribunal has had regard to the Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility (July 2015) and the Guidelines on Vulnerable Persons (November 2018).

21. However, the Tribunal found the inconsistencies or vague evidence including in relation to key events relating to the claims could not be explained merely by the passage of time, poor recollection or the applicant’s claimed mental health issues. 

22. Further, in the Tribunal’s view, the applicant’s conduct in Australia contributes to doubts regarding his credibility and claims for protection.  This includes the delay in seeking protection until several years after his arrival in Australia, and after the expiry of his student visa.  These issues are considered further below.

    Claims

23. The Tribunal accepted, on the basis that it was plausible, that the applicant was a student at [University 1], Chandigrah, during [year range] and that this was at the same time as [Leader B].  Although there is limited evidence before the Tribunal regarding [Leader B’s] death, the Tribunal accepts, on the basis that it was plausible, that [Leader B] was killed in 2003.  The Tribunal also accepts based on the country information that [Mr A] is a former politician who has been charged with a range of criminal offences in India and has been released on bail pending trial.

24. However, the Tribunal had a number of significant issues with the applicant’s claims to be at risk because of an association with [Leader B] and in particular [Leader B’s] claimed dispute with [Mr A].

25. Firstly, there was no corroborating evidence to link [Mr A] to the death of [Leader B].  The YouTube video presented did not make this allegation and the articles presented also did not mention [Leader B] in the context of claims against [Mr A].  The Tribunal does not accept on the evidence that [Mr A] was responsible for [Leader B’s] death. Further, there was no evidence to suggest the applicant was involved with [Leader B] in such a way that he would be targeted for harm directed at [Leader B].  He was not mentioned in the video offered as evidence of his connection to the applicant and the photograph he claimed to be included in was merely part of an opening montage of photographs of [Leader B], with a voiceover describing his life. 

100.   The movie referred to by the applicant was not included in material before the Tribunal. However, based on the video content the Tribunal infers it was of a similar content and nature and focussed on the life of [Leader B].  The Tribunal did not consider the video to provide any basis for a claim the applicant would be targeted for harm on return to India.

101.   Further, even if the applicant were a member of the student group, the video indicated there were 300 members of the group.  Again, there is no evidence to suggest all the members of the group were targeted for any reason, nor that the applicant had any particular profile among them to lead to him being targeted.  The Tribunal does not accept that he was.

102.   The applicant told the Tribunal the movie and YouTube video were produced in 2011 or 2012.  This is well after the claimed events and prior to the applicant’s father purchasing a home for him in Chandigarh.  There was no evidence and the applicant did not claim that he or his family members had suffered any instances of harm since the release of the movie or video, including when living in a home in Chandigarh.  The Tribunal does not accept the applicant faces any risk of harm arising from the production or release of the video, noting the fact he was not identified in the material before the Tribunal other than in a photo montage, the length of time which has passed since the material was produced and the fact the applicant and his family have not suffered any threats or instances of harm based on the material in the intervening period of more than 10 years.

103.   For the avoidance of doubt, the Tribunal notes the video referred to [Leader B] as a gangster and gave an account of how he became associated with that term, however the applicant made no claims to be at risk as a ‘gangster’ or an associate of a gangster and the Tribunal finds he was not a gangster in India and is not at risk of harm on that basis.

104.   The Tribunal does not accept the applicant was shot in 2003 by associates of [Mr A] nor that he was attacked with a baseball bat in 2004.  There was no evidence to corroborate these events other than scars or injuries the applicant says he bears.  The Tribunal accepts the applicant bears injuries to his leg and arm, however there is no corroborating evidence to link those scars or injuries to the claimed incidents and the Tribunal does not place significant weight on them as evidence the applicant was attacked.  This is particularly the case given the applicant claims three others who were attacked, [Leader B], [Leader C] and [Friend A] were all killed notwithstanding the fact he claimed the recording sought were not obtained from them.  In the Tribunal’s view the applicant was unable to offer any plausible explanation as to why he would not also have been killed if he was targeted for the same reasons.  While he claimed that this was because the earlier attempts were foiled and he travelled in 2003 and 2007-2008 placing him out of the reach of harm, the Tribunal considers that the fact he was in living in or near Chandigarh or with his parents for significant periods between 2003 and 2007 and from 2008 until leaving India in 2019 is not consistent with claims he was being targeted to locate the mobile phone recording or because of his association with [Leader B]. The Tribunal consider that explanation for the lack of further instances of harm is not credible.

105.   Given the Tribunal’s concerns with the credibility of the applicant’s evidence, with respect to the applicant’s original claims to fear harm as he would be persecuted by [Mr A], his associates or Indian authorities or any other person due to his association with the [Group 1], [Leader B], [Leader C] or [Mr A], lacked credibility and are not fears which are genuinely held.  In any event, the Tribunal does not accept the fears, if genuine, are well-founded for the reasons outlined in this decision including the significant period of almost 20 years which has passed since the applicant claims he was identified and harmed for reasons of those associations.

106.   In this regard, the Tribunal had significant concerns regarding the applicant’s claims to be at risk due to a dispute with [Mr A] in 2003.  A significant cause of these concerns was that on his own evidence, the applicant was able to continue to live at least in part in the same city where he claimed to have been targeted for extended periods until he left India in 2019, including owning a house in which he lived with his wife and child from 2013 until his departure for Australia.  When not in Chandigarh he was around an hour’s drive away at an address owned by his parents.  The Tribunal did not consider this to be consistent with a claim that he was being targeted by associates of [Mr A] in Chandigarh since 2003 and would be targeted on his return to India.  While the applicant claimed his father purchased the home in Chandigarh in 2013 as part of a marriage agreement, the Tribunal does not accept he would have done so had the applicant been at risk of serious or significant harm in that city from [Mr A] or his associates or anyone else.  The applicant claimed that he was able to continue to live in Chandigarh by ‘hiding’ including never going out, growing a beard and wearing a turban.  The Tribunal does not accept this explains the purchase of the house or the significant period he was able to live in Chandigarh without issue, noting that he claimed to have engaged in work including [occupation 2] while in India which is not consistent with a claim to have been in hiding and not leaving his home due to a fear of harm.

107.   Further the Tribunal considered that had [Mr A] and his associates been targeting the applicant and had they been connected in the way contended by the applicant they would have had the means to locate him at his parents’ property in Haryana or at the property he owned in Chandigarh.  That they did not locate him there and did not approach his parents in India at any point causes further concerns regarding the credibility of these claims.

108.   The Tribunal also found the fact the applicant and his wife had left their young son in Chandigarh when they moved to Australia is not consistent with a claim that the applicant was continuing to be pursued for a mobile phone on which recordings were made in 2003.  The Tribunal considers that if the applicant was being pursued by [Mr A] as claimed it is likely that those seeking his whereabouts would have pursued his family members.  That his family have continued to live in India in the same area and at the same addresses used prior to his departure casts significant doubt on his claims to be at risk from [Mr A] or his associates seeking to obtain the 2003 phone recordings .

109.   Further the Tribunal had significant concerns about the applicant regarding the personal circumstances which led to his application for protection being made several years after his arrival in Australia.  Principal among these was the fact he claimed his wife had returned to India in September 2021 to attend a wedding but had died of an asthma attack on [a day in] November 2021 yet Departmental movement records indicate the applicant’s wife left Australia [later in] November 2021, after the date on which she was claimed to have died.  The Tribunal did not accept the applicant’s claim to have forgotten the date of his wife’s departure and death to be plausible given the significance of these events or the relatively short amount of time which has elapsed since they occurred.  Further, the Tribunal considered the lack of any evidence to verify his wife’s death cast doubt on this claim. Given the significant inconsistencies on this evidence the Tribunal does not accept it.  While the applicant’s wife’s death is not related to his claims for protection, concerns regarding the inconsistencies of his evidence regarding these events cast doubt on the broader credibility of his claims and his motivation for seeking protection.

Mental health claims

110.   The applicant claimed to be depressed and to be unable to recall events due to stress and trauma caused by, in particular, the alleged death of his wife and father.  While he did not make any claims to hear harm in this regard, the Tribunal considered whether his claimed mental health issues gave rise to any claims for protection.

111.   The applicant offered no medical or other evidence to corroborate his claims to be suffering from mental health issues following the death of his wife and father. 

112.   The Tribunal notes that the Department file, in the context of the associated Bridging visa application, refers to the applicant claiming to have been suffering from a drug addiction at some point. Before the Tribunal the applicant did not claim to fear harm as a result of any prior or current drug use on return to India, or to have any issues of addiction.  There was no medical evidence before the Tribunal that the applicant had any general health or mental health issues including associated with drug use which might give rise to a claim for protection on return to India and the applicant did not make any claims in this regard.

113.   Based on the material before it, the Tribunal does not accept the applicant is suffering from any mental illness which would place him at risk of serious or significant harm on return to India.

114.   The Tribunal accepts that the applicant may suffer stress associated with his return to India and that he may support in on return. However, there was no evidence before the Tribunal that he would be denied access to mental health or other medical services in India or that he had any particular needs which would not be met in this regard. The Tribunal also notes that the applicant is in contact with his mother in India and that his son is living with his mother in his home. He also told the Tribunal he has support from his sister and his cousin in Australia.

115.   The Tribunal finds there is no real chance the applicant faces serious harm on the basis of any mental health issues on return to India, now or in the reasonably foreseeable future.

Any other reasons

116.   The applicant did not claim to fear harm on any other basis or for any other reason on return to India.  While he gave evidence his in-laws were unhappy with him following the claimed death of his wife, he did not claim to be at risk of harm on this basis and the Tribunal does not accept that he is.

117.   For the avoidance of doubt, the Tribunal finds there is no real risk or real chance the applicant would be seriously or significantly harmed on any basis arising from his wife’s death on return to India now or in the reasonably foreseeable future.

118.   The Tribunal notes the Departmental file also included information pertaining to the refusal of an associated Bridging visa application in 2023.  That information included the fact the applicant had been convicted of minor criminal offences in January 2022 which led to him being detained.  The Tribunal did not consider that information raised any issues relevant to the applicant’s claims for protection and the applicant did not raise any claims to fear harm on that basis.  Accordingly, the Tribunal did not consider that information to be relevant to the protection visa application.

119.   Having considered the applicant’s claims and his profile individually and cumulatively, the Tribunal finds there is no other basis on which the applicant faces a real chance of serious harm or a real risk of significant harm on return to India now or in the reasonably foreseeable future for the reasons claimed or for any other reason arising on the material before the Tribunal.

Does the applicant meet the refugee criterion?

120.   Based on the evidence before it, the Tribunal finds that the applicant’s claims that there is a real chance that, if he is returned to India, he would be persecuted by [Mr A], his associates or Indian authorities any other person due to his association with the [Group 1], [Leader B], [Leader C] or [Mr A] lacked credibility and are not well-founded.

121.   The Tribunal finds on the evidence that there is no real chance the applicant would be seriously harmed on return to India for these reasons or because of his claimed associations.

122.   The Tribunal, therefore finds that considered individually and cumulative, there is nothing to suggest that the applicant would face persecution now, or in the reasonably foreseeable future, and the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons set out in the Act.

123.   For the reasons outlined above, the applicant does not satisfy the criterion set out in s 36(2)(a).

Does the applicant meet the complementary protection criterion?

124.   The Tribunal has also considered the application of s 36(2)(aa) to the applicant’s circumstances. If a person is found not to meet the refugee criterion in s 36(2)(a), they may nevertheless meet the criteria for a grant of a protection visa if they are a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.

125.   Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. The Tribunal further notes that the necessary and foreseeable consequence element at s 36(2)(aa) of the Act attaches to the risk of significant harm rather than the actual occurrence of the significant harm.

126.   The Tribunal has carefully considered each of the integers of the applicant’s claims of fear of serious harm, discussed above with respect to his claims for refugee protection, in the context of the complementary protection criterion regarding the real risk of significant harm at s 36(2)(aa).

127.   The Tribunal has found that there is no real chance of serious harm to the applicant from [Mr A], his associates or Indian authorities or any other person due to his association with the [Group 1], [Leader B], [Leader C] or [Mr A]. 

128.   The Tribunal did not accept the applicant’s claim to be targeted by [Mr A] or his associates because of his association with [Leader B], [Leader C], the [Group 1] or for any other reason.  While the Tribunal accepts the applicant may have been associated with [Leader B] as a student and that [Leader B] was killed in 2003, based on the material before it the Tribunal has found the applicant did not face a real chance of serious harm due to this association or for any of the reasons claimed.

129.   It follows that the Tribunal is not satisfied that are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm [Mr A], his associates or Indian authorities or any other person due to his association with the [Group 1], [Leader B], [Leader C] or [Mr A].

130.   The Tribunal has also found the applicant does not face a real chance of serious harm due to any mental health issues or for any other reason arising on the information before the Tribunal. Further, considering the applicant’s cumulative profile there was no evidence to suggest the applicant’s mental health would place him at risk of significant harm as a necessary and foreseeable consequence of his return to India for any other reason.  

131.   The applicant claimed he has limited support in India and his sister and cousin could support him if he remains in Australia.  The Tribunal notes the applicant provided evidence that he has worked previously in India including as an [occupation 2] and that he owns a property in Chandigarh. He has tertiary qualifications from India. His mother lives in India with his son and his sister and cousin in Australia are supportive of him.  He did not claim and the Tribunal does not accept on the evidence that his relative economic circumstances in India would be such as to give rise to a real chance of significant harm, including an inability to subsist.  For the avoidance of doubt, the Tribunal does not accept there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm of the basis of his economic circumstances in India.

132.   Having considered the applicant’s circumstances singularly and on a cumulative basis and for all the reasons set out above, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that the applicant will suffer significant harm.

133.   The Tribunal therefore finds the applicant does not satisfy the criterion set out in s 36(2)(aa).

CONCLUSION

134.   For the reasons given above, the Tribunal is not satisfied that the applicant satisfies the criterion set out in s 36(2)(a).

1. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). 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. 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 any of the criteria in s 36(2).

   DECISION

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

Simone Burford
Senior 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.

…