2314907 (Refugee)
[2024] AATA 3254
•16 February 2024
2314907 (Refugee) [2024] AATA 3254 (16 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2314907
COUNTRY OF REFERENCE: India
MEMBER:Damian Creedon
DATE:16 February 2024
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
The Tribunal refers the matter for Ministerial consideration.
Statement made on 16 February 2024 at 3:04pm
CATCHWORDS
REFUGEE – protection visa – India – loan sharks – threats of harm by gangsters – dispute with extended family – criminal convictions – access to mental health care – applicant’s son an Australian citizen – sole custody – vague evidence – strong compassionate circumstances – request for Ministerial intervention – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 417, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Guo v Minister for Immigration and Ethnic Affairs [1996] FCA 1263
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155Any 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 14 September 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background:
The applicant, a [age]-year-old citizen of India, applied for the visa on 14 June 2023.
The applicant first arrived in Australia on [date] October 2008 as the holder of a Student (TU-572) visa. The applicant subsequently held a Partner (temporary)(UK820) visa[1] and a Partner (Permanent)(BS801) visa,[2] and associated Bridging visas. The applicant’s Partner (Permanent)(BS801) visa was cancelled on 5 July 2018.
[1] Granted on 30 November 2011.
[2] Granted on 26 March 2013.
The applicant has not departed Australia since [date] September 2016; he is presently in immigration detention.
Protection visa application:
The applicant’s written claims for protection are set out in his protection visa application forms. They are brief and it is convenient to set them out in full (uncorrected, and omitting the proforma questions):
i left the country because i borrowed money from India on loan from a lender for my criminal and immigration matter over 100000 dollars.
…
i have fincially broke. i have no capacity in future to pay them money back as i dont have any assests on me and the tax on orginal value is 10 percent.
…
i have not been to india since my criminal case and i dont want to go bak as they are highly connected all over india and has over 700 shooters in all bigand small cities.
…
i will be killed straighhjt away because i dont have the capacity to repay them.
…
i wilbe abducted and torture and be killed
…
authorties are not able to help as they have been threatens by these ganagsters and most of them work for them for money so my information of my where abouts anywhere in india be disclosed by the local police station
…
i caan ot relocate in any part of india or neighbouring countries because the austhoritirs are corrupted.
On 9 August 2023 the applicant was invited in writing by the delegate to provide additional information about his claims under s56 of the Act. The applicant’s response to the request is relatively brief and it is convenient to set it out in full (uncorrected):
1.Hi this all things start in 2017 after I got charged . I was very depressed with my situation. I have my son who is just [age] year old that time .
2.I had lot of pressure finically because I need to pay lot of things .I hire lawyer whose fees was very high .
3.After I got charged everything was not going right and then my house got robbed not long after I got charged. They took all gold and expensive things from my home . This things was around 15000.
And my place was not insured .
4.I was in need of money and I was not able to cope with pressure.my lawyer asked lot of money to fight the case around 90000 . He told me charges is serious.This thing made me very stressed how I’m gonna pay this amount of money.
5.Both me and my wife was stressed and was not able to look after the child . I contact few friends in india to help me with money . But know one help me . One guy advice me to borrow money from private lender
6.Same this time my parents going through money problems . So I borrow money from this lender and I told them I’m in Australia I return your money slowly. They gave money in India to my parents it was 50000$.
7.They gave me on 10% but they also told me if not paid with in one year the money gonna be double .if not return it’s gonna be serious problem for you .
8.Because me and my wife was very stressed and not able to look after our son . So I invite my mother to Australia in middle of 2017 and told bring some money which the guy gave my parents. My mother was allowed only to bring 10000 . But they organise other two people to carry cash 20000.
9.So my mother organise to bring 30000 in cash . It was big help to pay some fees of my lawyer.
10.I’m not sure with date but my mother went back in starting of 2018 with my son because of situation.
11.I was in great stress because my trial was coming closer . I need to pay more money to my Lawyer around 50000. I contacted this guy again for money . And I promise this private lender I pay him soon after I win the case
12.This private lender organise money through (hwala)way of sending money . One guy I don’t know him gave me cash 50000 in city .
13.This cash money I gave to my lawyer in cash .
14.But I lost the trial and I got 12 month sentence. My mother again came In middle of 2018from India with my son to stay with my wife and help her in difficult situation.
15.My father also visit in 2018 at the end of this year .
16.My 6month imprisonment finish and then I moved to immigration detention centre . Because my permanent visa was cancelled.
17.I try to contact this private lender about money but he refuses this time and he saying you need to pay double the amount I paid you . I explain my situation what’s going on . He start threatening me that if not paying you gonna get killed
18.I need more money for AAT . But I organise some from my brother and some my mother bring from India. My AAT cost me 20000.
19.I also explain in my AAT interview. That I can’t go back because I have lot of problems .people know my crime . I have some problems with my family members . They gonna take revenge from me . Like life threatening situation.But I didn’t explain that I borrow money from private lender which I relize they are very bad people and related to big gangsters
20.This gangsters contacted me and ask for money but I told them I don’t have . They told me you gonna get killed . I was very dip-pressed .
21.I was taking lot of psychologist counselling and explain my situation
22.I told to case officer also that I can’t go back because I have life threatening situations. Because I borrow money from gangsters
23.I spend another 20000 $ on federal court from the help of my brother and family .
24.I spend another 15000$ on full federal court which is also paid some in cash
25.This gangster is not just in India which runs . They do all type of things which is related to crime.
26.They threatened my family with gun shots and told them if you go to police they gonna get killed.
27.One time family went to south india and they even caught them and threatening
28.If I move back I can’t even stay anywhere in India because this gangster is in whole India . And they have shooters .
29.It’s not just in India they run in all local countries like Nepal . Pakistan, srilanka
30.Recently this group killed the famous Punjabi singer sidhu moose wala .
31.They also threatened the famous super star salman khan . This is everywhere in news .
32.Till I’m in detention centre I feel safe that’s why I never apply protection visa but when border force try to remove that why I apply protection visa .
33.This group of gangsters is not small they have connections with politicians and terrorist.
34.It’s member name is Goldy Brar and Lawrence bisnoi
There is no evidence that the applicant participated in an interview with the delegate.
The delegate refused to grant the visa on 14 September 2023 on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
The applicant applied for a review of the delegate’s decision on 20 September 2023.
Application for review:
Material before the Tribunal
The Tribunal has before it a range of material, including:
a.the applicant’s protection visa application forms, which were lodged on 14 June 2023;
b.the delegate’s protection visa decision dated 14 September 2023 (delegate’s decision record); and
c.the applicant’s application for review submitted to the Tribunal on 20 September 2023, which included a copy of the delegate’s decision record.
The Tribunal also has before it copies of a number of documents provided to the Tribunal by the applicant, including the following:
a.written submissions date 11 January 2023 made by the Refugee Advice and Casework Service on the applicant’s behalf (Submissions); and
b.accompanying the Submissions, copies of the following documents:
i.Consent Orders made by the Family Court of Western Australia at Perth [in] October 2021 (Consent Orders).
ii.Undated letter from [Ms A], Clinical Psychologist, concerning the applicant’s son, [Master B].
iii.Document entitled “Better Access Mental Health Care Plan” dated 27 November 2023 concerning [Master B].
iv.Letter dated 21 December 2023 from [Mr C], Consultant Psychologist, concerning the applicant.
The Tribunal has also read and had regard to the Department of Foreign Affairs and Trade’s DFAT Country Information Report India, 29 September 2023 (DFAT Report), and to other sources of country information as set out in the analysis below.
Hearing
The applicant appeared before the Tribunal on 6 February 2024 to give evidence and present arguments. Save for preparation of the Submissions the applicant was not represented in relation to the review.
Applicant’s oral evidence
The following is a summary of the applicant’s oral evidence to the Tribunal:
a.The applicant confirmed his personal details, his visa status upon arrival onshore and his current circumstances. The applicant stated that he is of the Sikh faith but is “not really practicing”.
b.The applicant has one sibling, a twin brother, who is currently resident in Adelaide with his own family. The applicant’s parents are ordinarily resident in India; however, they are presently on an extended visit to Australia, staying with the applicant’s brother in Adelaide.
c.When asked about his marital status the applicant stated that while technically still married, he had been separated from his wife since entering immigration detention; he stated that while his wife had requested a divorce, and that he had agreed to this, but that no steps had been taken to formalise the dissolution of their marriage.[3]
[3] For the sake of convenience, the Tribunal will refer to the applicant’s “wife” as such despite the status of their relationship.
d.The applicant has one son with his wife, [Master B], who is presently [age] years of age. The applicant stated that his wife has effectively abandoned their son and confirmed that the Consent Orders grant him sole custody of [Master B]. [Master B] is presently resident in Adelaide with the applicant’s brother and his family. [Master B] is an Australian citizen and does not hold any other citizenship.
e.The applicant confirmed that he himself is a citizen of India, and that he has never taken Australian citizenship.
f.In his youth, the applicant’s family home was in Chandigarh, near Mohali, in the State of Punjab.[4] Later his parents moved to Mohali where they are now resident.
[4] Mohali is officially known as “Sahibzada Ajit Singh Nagar” but will be referred to by the Tribunal as “Mohali” for the sake of convenience; according to the 2011 census, the population of Mohali was 176,152: see < applicant completed his primary and secondary education in India and completed a Bachelor [degree] there. He stated that he never worked in India, deciding instead to undertake further studies as an international student in Australia. When pressed, the applicant stated that he had intended to pursue studies in commercial cookery and hospitality management.
h.The applicant stated, however, that his study intentions changed when he met and then married his wife. The applicant was married on 29 December 2010. The applicant’s wife in an Australian citizen and is not an Indian national, nor is she of Indian ethnicity. The applicant described his wife as “Italian-Australian”. Through this relationship the applicant became eligible for, firstly, a temporary, and then a permanent Partner visa.
i.The applicant stated that he was charged with a criminal offence in 2017 and then convicted of that offence in 2018. When pressed, the applicant stated that he was “convicted of a sexual offence against a minor”, being one of his stepdaughters. The applicant confirmed that his wife had two daughters at the time of their marriage.
j.The applicant state that upon conviction he was sentenced to “six months in prison, six months on parole”. The applicant expressed his sense of guilt and remorse at the conviction.
k.In respect of the applicant’s criminal conviction the Tribunal advised the applicant of the following information, in words to the following effect:
I wish to assure you that none of the materials relating to your criminal offending will be weighed against you in arriving at a decision concerning your status as a refugee or considering whether you are owed complementary protection.
l.The Tribunal reiterated to the applicant that it considered such material irrelevant to the question of whether he is a refugee or owed complementary protection.
m.The applicant stated that, in connection with his criminal charges, he had borrowed money from moneylenders in India to fund his legal representation.
n.The applicant stated that, initially, he was financially supported by friends and family, but that he needed more money for his court case. The applicant stated that to acquire this money he communicated with an acquaintance from college whom he identified as [Mr D]. He stated that [Mr D] was a nickname.
o.The applicant stated that he did not speak with [Mr D], but that they communicated through the messaging apps WhatsApp and Signal. Through [Mr D] the applicant was connected to the moneylenders.
p.The applicant did not know who the moneylenders were, and he never spoke to them when negotiating the loan. He stated that all communications were carried out through the messaging app Signal and that the moneylenders only identified themselves as being “related to a big gangster”. The applicant stated that they told him that they were affiliated with “Lawrence Bishnoi” and “Goldy Brar”, and that if he did not repay the money when it was due “[he] will hurt”.
q.When pressed, the applicant confirmed that the agreement was negotiated in 2017, and that he was on bail at this time pending resolution of his criminal charges. No collateral was required for the loan.
r.The applicant stated that the terms of the loan agreement were that he would borrow AUD$50,000 at an interest rate of 10% repayable within 12 months or the amount “doubles”. He stated that he believed he was an attractive client for the moneylenders as he was then working in Australia, and it was assumed he would have the capacity to repay the debt.
s.When pressed as to how the money was transferred to him, the applicant stated that he was told that the moneylenders told him that:
We can’t do anything through banks – we don’t have “white money”.
t.Instead, the money would be physically brought to him. The applicant stated that his mother brought “eight or nine thousand dollars” in cash to him, and that the balance was brought to him by “two guys”. The applicant stated that he told his mother merely that he was going through “tough times”. The applicant stated that he used the money for lawyers’ fees in connection with his criminal charges, and for living expenses.
u.The applicant contacted the moneylenders again in 2018, in anticipation of his criminal trial, to borrow a further AUD$50,000 on the same terms. All negotiations for the loan were conducted via the messaging app Signal. The moneylenders agreed to the loan and the money was again provided to the applicant through physical transfer of cash. When pressed, the applicant stated that some, at least, of the cash was delivered in Australian dollars and that it was again used for legal fees and living expenses.
v.The applicant stated that upon his release from jail into immigration detention he contacted the moneylenders though the Signal app. He stated that he told them that he had been convicted and had served a term of imprisonment and he sought a further loan from them. He stated that the moneylenders “started threatening” him, saying:
We are going to kill you if you don’t repay the money.
w.When pressed, the applicant stated that he did not retain any screenshots or other evidence of the messages or threats.
x.The applicant stated that at around this time his parents were approached on three occasions by individuals on behalf of the moneylenders:
i.firstly, by unknown persons in “June or July” 2019, in a market in their home town, and were told that the applicant would be killed if he did not repay the money;
ii.secondly, in “2020 or 21” the applicant’s mother was standing outside the family home when “two guys on a motorbike” stopped and fired a gun into the ground; and
iii.thirdly, in 2022 the applicant’s parents were on holiday in Bangalor when they were approached and told that the applicant would be killed if the money was not repaid.
y.The applicant stated that it was different individuals on each occasion.
z.The applicant stated that his last contact with the moneylenders was in 2022, again via the Signal app. He confirmed that on no occasion has he ever spoken to or met with the moneylenders. He confirmed that he has not repaid any of the debt to the moneylenders.
aa.When asked why he feared returning to India the applicant stated:
[They] will kill me straight.
bb.When pressed, he stated that ‘nowhere’ in India was safe, that these were “not small gangsters”. and that they had “700 shooters” throughout India.
cc.When pressed as to other fears he may have regarding returning to India, the applicant state that there are a “lot of problems” with his father’s family. He stated that after his paternal grandfather died his father and uncle (the only two sons) have fallen out over a land dispute. The applicant confirmed that the land in question is an inheritance from his grandfather. He stated that it is “still going on” despite attempts to mediate an outcome. He does not believe that it is (yet) the subject of court action.
dd.When asked how this impacted him, the applicant stated that “because of [his] convictions” his uncle had “gain[ed] an advantage over [his] father”. When asked how his extended family had discovered his convictions, the applicant stated that he had “cousins” and other relatives in Australia who were aware of the convictions and had informed their family members in India.
ee.When asked what he feared about returning to India on this account, the applicant stated that he could be hurt “in a really bad way”. When pressed as to why his extended family would be motivated to hurt him, the applicant stated that they wanted to “destroy the family” and “put [his] Dad down”.
ff.When pressed, the applicant stated that he had not received threats from his extended family, but that they were “spreading rumours” and stating, “when he comes back see what he’s going to get”.
gg.When asked whether there were any other matters fears he wished to raise, the applicant stated that his mental health had suffered while in immigration detention, particularly as he was separated from his son and family. He stated that he was concerned that his mental health may suffer further if he was to return to India.
Opinion of [Mr C], Consultant Psychologist
The Tribunal has read and had regard to the report of [Mr C] dated 21 December 2023. In that report [Mr C] outlines his discussions with the applicant, including the applicant’s personal history in detail, which the Tribunal notes is materially consistent with his oral evidence at the hearing. Of relevance for present purposes is [Mr C]’s opinion which is expressed in the following terms (pp.8 – 10):
1. [The applicant] presents as a psychologically troubled man, whom is currently before the Administrative Appeals Tribunal (‘AAT’), in relation to review of a decision not to revoke the mandatory cancellation of his Partner (subclass 801) visa, pursuant to s501CA(4) of the Migration Act 1958. The background history in this case has been extensively documented. I note that as a consequence of being convicted of three counts of indecent dealing with a child, he was sentenced to a 12 month term of imprisonment, with a 6 month non-parole period, with him then being transferred to immigration detention, awaiting a final determination of his case. [The applicant] has now been in custody and immigration detention since 2018, some 5½ years. It would appear that he has no prior forensic history involving matters of a sexual nature, although he acknowledged that he received a $200 fine in 2015, arising from a charge of damage property, which again appeared to relate to internecine family tensions at that time. At examination [the applicant] expressed appropriate remorse for his behaviour. He has developed insight to the dynamics surrounding his offending and in addition, he is very aware of the effect that his offending conduct had upon the victim and extended family. He reported that he feels guilty on a daily basis.
2. He describes a complex clinical and developmental history, particularly since his arrival in Australia. It would appear that he was involved in an unhappy marriage to the mother of his son. His now former partner had two children from a previous relationship, whom by his account resented his presence in the home and consequently undermined his authority. This led to escalating tensions, which are relevant to the earlier matter involving criminal damage and indeed the index offending for which he is facing deportation. Reflective of these ongoing tensions, he stated that his former partner has now abandoned their son and in this context, his child is living with his twin brother in Adelaide. He is assisted in this regard by their mother and father. [The applicant] reported that during this time, he was experiencing escalating symptoms of depression, anxiety, low self-esteem and at times, a sense of resentment regarding his situation. On a more positive note, he was not using illicit drugs or abusing alcohol. It was essentially in this context that his offending occurred. He appears to take full responsibility for his actions at that time.
3. Notwithstanding the serious nature of the convictions, I am encouraged by an absence of a prior forensic history involving matters of a sexual nature. It would appear that his offending was situational and opportunistic rather than predatory and I note that it occurred on one occasion only. The research literature indicates that individuals who are innately predisposed towards this type of paraphilic behaviour, by the time they would reach [the applicant]’s age, have generally acquired significant convictions over a protracted period of time. I say this advisedly, bearing in mind the Sentencing Remarks of Her Honour Judge [name].
4. [The applicant] recognises that he requires ongoing treatment in the community. He has positive aspirations for the future should he be permitted to remain in Australia. These will involve him relocating to Adelaide to live with his twin brother, resuming responsibility for the care of his son, re-joining the workforce and securing employment. Discussions with his brother indicate that he remains highly supportive of him, although it would appear that should [the applicant] be indefinitely detained, there may be issues referable to the ongoing care of his son. This too is weighing upon his mind. I note in the present his brother is supported by their parents, although they are due to return to India for a period of six months. [The applicant] firmly believes that he needs to be in his son’s life, in order to act as a positive role model to him, in addition to providing for his general welfare and educational needs.
5. [The applicant] is currently suffering severe depression. He described a broad spectrum of symptoms referable to his Depressive Disorder and clearly this will require ongoing treatment involving a combination of Cognitive Behaviour Therapy (CBT), in addition to supportive and motivational psychotherapy. He should also be reviewed by a medical practitioner to determine whether he would benefit from appropriate psychotropic medication.
6. There are consequently a number of protective factors in place, which will reduce the risk of [the applicant] reoffending in the future. These include his expressions of remorse, his insight to the dynamics surrounding his offending, an absence of substance use or alcohol abuse, the support which he currently enjoys from his brother and parents and his motivation for treatment. He is keen to re-join the workforce, which in turn will provide additional structure and supervision for him during the day. I am encouraged by an absence of prior convictions for matters of this nature and in this regard, I believe that with continuing support, treatment and supervision in the community, the risk of him reoffending is now trending from Moderate to Low.
Country of reference:
The applicant claims to be a citizen of India. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that India is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law:
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Assessment of evidence:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
Analysis, findings and reasons:
General
The Tribunal has had regard to the President's Directions and in particular the direction that members are to take all reasonable steps to complete papers allocated to them as quickly as possible, and that generally in reviewing a decision to refuse the grant of a protection visa members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.
For the avoidance of doubt, and as explained to the applicant during the hearing, the Tribunal places no weight upon the applicant’s criminal convictions in the assessment of his credibility, or in the assessment of his claims to refugee status, or to be owed complementary protection. The Tribunal considers these criminal convictions to be irrelevant considerations to these assessments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country information: moneylenders in India
By way of general background, the Executive Summary of the United States Department of State’s 2022 Country Reports on Human Rights Practices: India, notes:
India is a multiparty, federal, parliamentary democracy with a bicameral legislature. The president, elected by an electoral college composed of the state assemblies and parliament, is the head of state, and the prime minister is the head of government. The constitution gives the country’s 28 states and eight union territories a high degree of autonomy and primary responsibility for law and order. Electors chose President Droupadi Murmu in July to serve a five-year term; she is the first president from the country’s tribal community. Narendra Modi became prime minister for the second time following the victory of the National Democratic Alliance coalition led by the Bharatiya Janata Party in the 2019 general election. Observers considered the presidential and parliamentary elections, which included more than 600 million voters, to be free and fair.
The states and union territories have primary responsibility for maintaining law and order, with policy oversight from the central government. Police are within state jurisdiction. The Ministry of Home Affairs controls most paramilitary forces, the internal intelligence bureaus, and national law enforcement agencies, and provides training for senior officials from state police forces. Civilian authorities maintained effective control over the security forces. Members of the security forces committed some abuses.
Significant human rights issues included credible reports of: unlawful and arbitrary killings, including extrajudicial killings by the government or its agents; torture or cruel, inhuman, or degrading treatment or punishment by police and prison officials; harsh and life-threatening prison conditions; arbitrary arrest and detention; political prisoners or detainees; arbitrary or unlawful interference with privacy; restrictions on freedom of expression and media, including violence or threats of violence, unjustified arrests or prosecutions of journalists, and enforcement of or threat to enforce criminal libel laws to limit expression; restrictions on internet freedom; interference with the freedom of peaceful assembly and freedom of association; restrictions on freedom of movement and on the right to leave the country; refoulement of refugees; serious government corruption; harassment of domestic and international human rights organizations; lack of investigation of and accountability for gender-based violence, including domestic and intimate partner violence, sexual violence, workplace violence, child, early, and forced marriage, femicide, and other forms of such violence; crimes involving violence or threats of violence targeting members of national/racial/ethnic and minority groups based on religious affiliation, social status or sexual orientation; crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer, and intersex persons; and existence of forced and compulsory labor.
A lack of accountability for official misconduct persisted at all levels of government, contributing to widespread impunity. Lax enforcement, a shortage of trained police officers, and an overburdened and underresourced court system contributed to a low number of convictions.
Terrorists in Jammu and Kashmir, northeastern states, and Maoist terrorism-affected areas committed serious abuses, including killings and torture of armed forces personnel, police, government officials, and civilians; kidnapping; and recruitment and use of child soldiers.
Under the heading “Loan Sharks/moneylenders” the DFAT Report provides the following information:
3.171 Loan sharks operate in India and various media reports in recent years have highlighted the issue. Moneylenders operate outside of the formal credit system, especially in rural areas. Sources told DFAT that moneylenders may lend against an expected harvest; if the harvest fails then the borrower may be unable to pay back the loan. Health care costs are also a common reason to borrow money. As in many countries with high outward migration, borrowing money to migrate, including to attempt an asylum claim, is also a possible cause.
3.172 Microfinance and other forms of technology-driven reputable lending are available to the poor in ways that were not possible in the past. WhatsApp, the most popular messaging application for mobile phones in India, has been testing its payment application in India. This has allowed easy access to funds and banking services for a large unbanked sector of the economy (mobile phones are more popular than banks). ‘Paytm’ is another popular mobile phone-based payment system that allows safe payments on digital platforms.
3.173 The corollary of better access to payment technology is that, in recent years, usurious lending practices have moved to the online space with many different mobile phone applications enabling loans becoming more popular with Indians. The difference between reputable and non-reputable providers is often not obvious, especially to the illiterate or less educated.
3.174 While some technological options for lending are predatory, the risk of violence is low. According to an article in Bloomberg in January 2022, there are many complaints about digital money lending, including after lenders have attempted to collect debts at work, jeopardising victims’ employment. The Bloomberg article mentions ‘heavy handed’ collection tactics and stress upon victims that can lead to suicide. Another article in Inc42, a publication linked by the Bloomberg article, mentions that families and employers may be contacted by debt collectors. Again, this article does not mention violence but does mention suicide.
3.175 Sources consulted by DFAT agreed that violence against debtors who do not repay money is possible, but they emphasised that suicide that results from sustained harassment from lenders is more common than is direct violence. Such suicides in rural areas often occur through hanging or drinking pesticides. Debt may then be passed on to family members who subsequently make an asylum attempt.
3.176 Loan sharking is illegal. The Usurious Loans Act 1918 bans ‘excessive’ interest rates, which are not defined. Courts may look at different features of a loan (the principal, other charges, periods at which interest is calculated and other factors) to determine if the rate is excessive. According to the Bloomberg article and others, new fintech lending services are poorly regulated. Access to legal relief from courts has its own challenges, outlined in the section on judiciary.
3.177 The experience for those who are unable to service debts to loan sharks, and their family members, varies. Violence cannot be ruled out but is unlikely. Harassment, which can include threats of violence, is more likely. People borrowing money through informal moneylenders may also face societal discrimination, due to familial shame, should they default. DFAT assesses that debtors face a low risk of societal violence. DFAT is not aware of a pattern of societal or official discrimination against debtors.
Consistent with DFAT’s analysis of the operation of moneylenders in rural areas, M Qazi in “The Return of the Moneylenders”[5] refers to the high numbers of farmers who are tethered to the “ubiquitous, ravenous loan shark”. Qazi describes a centuries-old monopoly held by the moneylender who is “an inalienable part” of rural life. The moneylender is described as the first port of call in times of need: “[f]or most villagers there is no life without him”. Qazi states that the moneylender charges exorbitant interest and creates “an inescapable cycle of debt”.
[5] The Asian Age (30 June 2017).
This is exemplified by the plight of farmers in the Punjab in recent years. Crop failures have forced them to borrow from moneylenders at high interest rates. Poor families are unable to meet repayment demands, driving many to take their own lives. According to one article,[6] a survey conducted across six districts in the Punjab found that more than 14,600 agricultural labourers and farmers committed suicide between 2000 and 2015.
[6] S Singh “Debt burden driving farmers to suicide in Punjab’s food bowl” Asia Times (27 February 2018).
Other articles[7] refer to family members disappearing to escape the harassment of moneylenders and quote senior police officers referring to “torture” meted out by loan sharks; others refer to people committing suicide by jumping from trains or consuming poison because of their inability to repay loan sharks.
[7] “Rajkot: Woman Blames Loan Sharks for Missing Brothers and their families” Times of India (26 May 2019).
One police commissioner claimed that the practice is not tolerated.[8] That article refers to a crackdown by police after a victim of moneylenders consumed poison and committed suicide inside the police commissioner’s offices in early 2018. The commissioner added that the police investigate all complaints and, in 20 to 25 per cent of cases, First Information Reports are registered within 24 hours.
[8] “Rajkot: Woman Blames Loan Sharks for Missing Brothers and their families” Times of India (26 May 2019)
S G Ray “Inside the Bloody World of India's Mafia Loan Sharks” The Week (30 March 2018) notes the situation of a defaulting debtor who was set ablaze by moneylenders in Jajauli, Uttar Pradesh, and that moneylenders were said to have that village in a “vice-like grip”.
Analysis: fear of moneylenders
In assessing the applicant’s circumstances the Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[9]
[9] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf
The Tribunal is also mindful of the following considerations surrounding credibility:
a.Firstly, the fact that a refugee claimant may “yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself”.[10]
b.Secondly, a decision-maker’s rejection of some evidence, material or peripheral, relating to past or present facts, should not necessarily lead to the rejection of all of the claimant’s evidence.[11]
[10] Abebe v Commonwealth – Minister for Immigration and Multicultural Affairs v Eshetu (2000) 24(1) Melbourne University Law Review 190.
[11] International Association of Refugee Law Judges, Assessment of Credibility in Refugee and Subsidiary Protection Claims Under the EU Qualification Directive – Judicial Criteria and Standards, (March 2013) at [A.18].
However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[12]
[12] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.
Overall, the Tribunal found the applicant to be a credible witness whose oral evidence in respect of his core claims was coherent and plausible. When pressed for details in respect of these claims the applicant was able to answer the Tribunal’s questions spontaneously, and in a manner consistent with honest, unaffected recollection.
Although, in the absence of corroborating evidence, the Tribunal cannot be certain of the applicant’s account, having had the benefit of speaking with him the Tribunal is sufficiently persuaded that it is possible that the core of his claims is true.[13] The Tribunal therefore accepts (materially) that:
a.the applicant borrowed approximately AUD$100,000 in two transactions from moneylenders in India to avail himself of legal representation in connection with his criminal proceedings in Australia;
b.the moneylenders from whom he borrowed the money operate “outside of the formal credit system”[14] in India;
c.the general terms of the agreement were that the applicant would pay 10% interest, and the whole amount would be repayable within 12 months after which the amount due would double;
d.the applicant has never met with or spoken to the moneylenders from whom he borrowed, with the loan agreements being conducted across the Signal messaging app;
e.the applicant has not repaid his debt to the moneylenders;
f.the applicant has been threatened by the moneylenders with violence and death over the unpaid debt, again utilising the Signal messaging app; and
g.the applicant last communicated with the moneylenders in 2022.
[13] See: Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 (Sackville J) at [62] to [64].
[14] See: DFAT Report, para [3.171].
Threats to physically harm or kill someone are easily made and not always acted upon. The applicant’s evidence to the tribunal as to his fear in this regard is that:
a.the moneylenders claimed that they were affiliated with gangsters “Lawrence Bishnoi” and “Goldy Brar”, and that if he did not repay the money “[he] will hurt”; and
b.the applicant’s evidence to the Tribunal that these are “not small gangsters” and that they had “700 shooters” throughout India.
The Tribunal finds this aspect of the applicant’s evidence, however, to be generic, superficial and unpersuasive. Country information reveals that “Lawrence Bishnoi” and “Goldy Brar” are high profile criminals in India and are each referenced in numerous contemporary media reports.[15] In short, they are well-known names. It is notable that one such report records that “Lawrence Bishnoi” is affiliated with “700 shooters” across India, which the Tribunal notes is the precise phrase used by the applicant.
[15] See e.g.: B S Web Team, “Who is Lawrence Bishnoi, the man affiliated with 700 shooters across India”, Business Standard, 6 December 2023; E T Online, “Who is Lawrence Bishnoi, who claimed responsibility of killing Khalistani terrorist Sukhdool Singh in Canada?”, The Economic Times, 21 September 2023; Sandhu J S, “Lawrence Bishnoi ‘justifying target killings, criminal activities’, interviews are a security breach: Punjab and Haryana HC”, The Indian Express, 23 December 2023; Gaur S, “India declares Canada-based Goldy Brar an ‘individual terrorist’”, Jurist, 2 January 2024; “Gangster Goldy Brar, linked to singer Sidhu Moose Wala's murder, declared terrorist by govt”, Business Today, 2 January 2024; Bishnoi, A, “Goldy Brar was helping his aides to flee to Nepal: SSP”, Times of India, 6 February 2024.
In assessing this aspect of the applicant’s evidence, the Tribunal is mindful that the exaggeration, or even fabrication of parts of a witness’ testimony does not exclude the possibility that there is a hard core of acceptable evidence within the body of the testimony.[16]
[16] Guo v Minister for Immigration and Ethnic Affairs [1996] FCA 1263 at [26].
While the Tribunal is prepared to accept that the moneylenders claimed to the applicant that they were affiliated with these prominent criminal figures, there is no cogent evidence before the Tribunal of any such affiliation or connection. Indeed, the applicant was able to say very little about the nature and intentions of the moneylenders. The applicant has had no prior dealings with them, could not name them, could not physically identify them, communicated with them solely through the Signal messaging app, and does not know anything more about them than what he said in evidence. He could not point to any other examples of these particular moneylenders dealing with a bad debt.
The Tribunal accepts the applicant’s evidence that his mother brought some of the cash he borrowed onshore, and it further accepts that the applicant’s mother, and by extension his father, would be known to the moneylenders. The Tribunal is prepared to further extend that acceptance and infer that the moneylenders would also be aware of the location of the applicant’s parents’ home in Mohali, in the State of Punjab.
The Tribunal notes the applicant’s evidence that his parents have experienced harassment from individuals purportedly on behalf of the moneylenders, however the Tribunal places little weight on this evidence as it is second-hand and untested before the Tribunal.
Nonetheless, the Tribunal accepts that it is clear from the country information that, where a debt has not been repaid to a moneylender operating outside of the formal credit system in India, there is a risk that the borrower, and his/her family members, will not only be harassed and threatened, but may, on occasion, be subjected to serious physical harm.
Refugee criteria
To be recognised as a refugee, an applicant must establish not only a well-founded fear of persecution, but also that the persecution is for the reasons of one or more than one of the five Convention grounds as reflected in s 5J(1)(a) of the Act.
For the reasons stated above, the Tribunal accepts that there exists a real chance that the applicant may suffer serious harm at the hands of the moneylenders on account of his unpaid debt were he to return to Mohali. However, the applicant made no claim that this circumstance would result from one or more than one of the five reasons enumerated in s 5J(1)(a) namely race, religion, nationality, political opinion, or membership of a particular social group.[17] The harm of which the applicant is at risk arises from his default on a commercial (if usurious) financial transaction and the moneylender’s revenge or retribution for that default.
[17] In respect of the latter category in respect of unpaid debts, see: ZAFC v MIMIA [2003] FMCA 380, at [17] to [18]; agreed on appeal: SZAFC v MIMIA [2003] FCA 1405.
Without a link between one of the characteristics of an individual enumerated in in s 5J(1)(a) and the persecution they fear, a nexus between the persecution of that individual and the Act is simply not established. Put differently, to fall within the ambit of s 5J(1)(a) of the Act, the harm feared must be for one or more than one of the five reasons, which are race, religion, nationality, membership of a particular social group or political opinion. None of these reasons apply to the applicant’s claim.
It follows, and the Tribunal finds, that the applicant does not have a well-founded fear of persecution in India on this basis.
Complementary protection
The Tribunal has also considered whether there are any substantial grounds for it to believe that the applicant, as a necessary and foreseeable consequence of being removed from Australia to India, faces a real risk of significant harm under s.36(2)(aa) of the Act. The 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear'.[18]
[18] MIAC v SZQRB [2013] FCAFC 33.
Having found that the applicant faces a ‘real chance’ of serious harm at the hands of the moneylenders were he to return to his family’s home in Mohali, the Tribunal accepts that he has also has a ‘real risk’ of suffering significant harm for this reason.
The Tribunal also accepts it is plausible that the longer the debt is unaddressed the more likely the consequences are to be serious and escalating. Country information suggests that if the applicant were to return to Mohali or its surrounds – in short, to an area where he could be readily identified by the moneylenders – he would likely come to their attention and be at risk of harassment and violence. There is a real chance that he would be subjected to an assault amounting to significant physical harm.
There is, however, no credible evidence before the Tribunal that the moneylenders have any means of finding out that the applicant has returned to India per se, or, if he settles outside of Mohali and its surrounds, where he has settled.
The applicant has the right of every Indian citizen to move freely throughout the territory of India and the right to reside and settle in any part of the territory of India (subject to reasonable restrictions in the interests of the sovereignty and integrity of India and the security of the state): see Articles 19(1)(d) and (e) of the Indian Constitution.
The DFAT Report notes in this regard that:
5.19 There are no legal barriers to internal relocation and India has a long history of internal migration. In practice, relocation is mostly intra-state rather than interstate. This probably reflects the way in which languages and cultures tend to be divided in India along state-lines; people in the same state will speak the same language as the internal migrant. However, in the northern (not north-eastern) states generally all people speak Hindi, giving greater scope for internal migration.
5.20 Many internal migrants experienced significant hardship during the COVID-19 pandemic because of lockdowns that prevented people who had moved for work from earning an income. This, in turn, caused many people to travel to large cities in search of employment or essential supplies. Conversely, many internal migrants returned home to their families when they were unable to work.
5.21 According to the World Bank, factors that may limit interstate relocation include non-portability of welfare entitlements (some social welfare programs are only available within a state or require an established residence), preferential treatment of former students from local educational institutions, and domicile requirements for state government jobs. A 2014 article from the Migration Policy Institute lists lack of education, access to financial services and the predominance of the agricultural sector as other factors.
5.22 In general, internal relocation is a practical option for most people seeking escape from violence related to marriage choices but this would be limited by the factors discussed above. For women, relocation might involve becoming a single woman. LGBTI people are unlikely to be able to relocate away from discrimination anywhere in India, but an upper class LGBTI person might find some safety in a large city (see Sexual Orientation and Gender Identity).
As to the various factors that may limit options for relocating across India, the applicant speaks Hindi,[19] the most widely spoken language in India.[20] He is clearly capable of developing community contacts, as he has demonstrated by his ability to adapt to life in Australia. As for employment, the applicant is an able-bodied male with a tertiary education and certificate-level qualifications earned in Australia, as well as several years work experience in Australia. Even if the employment market is competitive, he could eventually establish himself somewhere outside the state of Punjab where he speaks the language, and where he is able to obtain employment that will enable him to support himself.
[19] See the applicant’s protection visa application forms.
[20] DFAT Report, para [3.2].
The Tribunal notes the applicant’s current mental health status, and notes the opinion of [Mr C]’s that the applicant manifests the following characteristics consistent with positive prospects:
a.an absence of substance use or alcohol abuse;
b.familial support; and
c.a “keenness” to re-join the workforce.
The practical difficulties of returning to India are not to be underestimated. However, there is no evidence that the applicant would not continue to manifest these characteristics were he to return to India.
The applicant was not able to provide the Tribunal with any cogent evidence as to how the moneylenders would be able to find him beyond the vague and unpersuasive evidence that the moneylenders are affiliated with well-known criminal figures. Major urban centres such as Delhi are sophisticated cities with opportunities for both work and education for the applicant. In all the circumstances the Tribunal finds that it is reasonable for the applicant to relocate to an area of India where he would not be at risk, such as major urban centre, for example Delhi: s 36(2B)(a) of the Act.
It follow that 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 of significant harm, including the applicant will suffer harm by way of being arbitrarily deprived of him life; the death penalty will be carried out on him; he will be subjected to torture; he will be subjected to cruel or inhuman treatment or punishment; or he will be subjected to degrading treatment or punishment, as required by s 36(2)(aa) of the Act.
Dispute with the applicant’s father’s extended family
The applicant’s evidence is that there are ‘a lot of problems’ with his father’s extended family due to an inheritance dispute between his father and his uncle (his father’s brother) concerning land left to the estate of his late grandfather.
The applicant stated that, through cousins and other relatives in Australia, news of his sexual assault convictions had been relayed to his uncle’s family in India, and that knowledge of the convictions was being used to ‘put’ his father down, and ‘gain an advantage’ over him in the dispute.
When pressed as to his fears on this account, the applicant stated that he could be hurt ‘in a really bad way’ by his uncle’s family because of ‘rumours’ they were spreading, and statements they had made to the effect that “when [the applicant] comes back [to India] see what he’s going to get”.
Despite being pressed, however, the applicant was unable to provide any detailed evidence as to these claims, and no corroborating evidence of the threats was forthcoming. The Tribunal considers this aspect of the applicant’s claims to be vague, superficial, and unpersuasive.
In all the circumstances the Tribunal finds the applicant’s claims to fear violence or ill-treatment at the hands of his father’s extended family to be mere speculation not amounting to a well-founded fear.
The Tribunal finds that there is no real chance or real risk that the applicant will face serious or significant harm in India from his father’s extended family for any reason associated with his sexual assault convictions, or his father’s land dispute, or at all.
Treatment of returnees generally
The applicant did not raise any concerns with the Tribunal regarding his status generally as a returnee to India, or as a returnee with a criminal record, beyond that discussed above in connection with his extended family, or as a failed asylum seeker.
The Tribunal notes that DFAT is not aware of any evidence of mistreatment of returnees, including failed asylum seekers, by Indian authorities, and that DFAT assesses that failed asylum seekers are unlikely to encounter official discrimination upon return to India.[21]
[21] DFAT Report, para [5.23].
Based upon this information the Tribunal finds no evidence to suggest that the applicant would suffer serious or significant harm in India as a returnee, a returnee with a criminal record, or as a failed asylum seeker.
Country information: mental health services in India
Under the sub-heading ‘Mental health’ the DFAT Report notes the following:
2.23 Sources told DFAT the number of mental health workers is not sufficient to service demand. There is a shortage of trained mental health workers which, in practice, means that not everyone who needs care can access it. Mental health care is more likely to be accessible in large cities, while healers and other non-professionally qualified people may provide care in rural areas.
2.24 Meeting with a counsellor or psychologist is strongly associated with shame for many Indians. This often means that patients will delay treatment until the problem becomes severe, and perhaps will not even seek treatment then. The stigma associated with poor mental health makes it difficult for mental health professionals and patients to build rapport or discuss issues or solutions effectively.
2.25 Mental health is not widely discussed in India, as a result, mental health literacy is low. It is possible that many people are unaware of their mental illness, or lack the knowledge or vocabulary to discuss mental health. Family is a critical aspect of Indian life and culture, and not all families are accepting of members who are living with mental illness. This stigma and taboo extends to employment and education, and those with mental illness are often ostracised at work or school.
2.26 Neurodiversity is poorly understood. People in the upper classes might be more likely to seek diagnoses and treatment for conditions such as autism spectrum disorder (ASD) and attention deficit hyperactivity disorder (ADHD) in children, whereas those with little or no education or exposure might not understand such diagnoses. Overall, understanding and acceptance is poor, and people living with these diagnoses may be expected by families, schools, workplaces and society more broadly to modify their behaviour without support, interventions or treatment.
2.27 DFAT assesses that people living with mental illness and/or neurodiversity face a low risk of official discrimination, except to the extent that they may not be able to access appropriate healthcare. This is true of many Indians with various medical issues, as outlined in the section on healthcare. Indians living with mental illness and/or neurodiversity face a moderate risk of societal discrimination.
Analysis: the applicant’s mental health
The Tribunal accepts the professional opinion of [Mr C], as set out at para [23] above, that the applicant is ‘a psychologically troubled man’, that he ‘is currently suffering severe depression’ and that he requires ‘ongoing treatment in the community’. The Tribunal also notes [Mr C]’s opinion that the applicant recognises that he requires ongoing treatment.
In his evidence at the hearing, the applicant stated that his mental health had suffered while in immigration detention, particularly due to the separation from his son and family, and he stated a concern that his mental health “may suffer further” if he were to return to India, however he provided no basis for this claim. [Mr C] offered no opinion on the applicant’s mental health situation should he return to India.
Notably, the applicant made no claims that he would face serious or significant harm on account of his mental health status should he return to India now or in the reasonably foreseeable future.
Given the general nature of [Mr C]’s opinion, however, the Tribunal considers it appropriate to assess the applicant’s mental health diagnosis and recommended treatment against the country information set out in the DFAT Report.
Refugee criterion
The applicant has accessed mental health care in Australia through his interaction with [Mr C]; it is accepted that his ability to access similar care in India is likely to be more difficult, particularly if he or his family do not have the requisite funds to pay for such care.[22]
[22] See: DFAT Report at para [2.27].
However, there is no evidence to suggest that any treatment available to the applicant in India would be denied in a discriminatory way, that is, on the basis of his race, religion, nationality, membership of a particular social group (including persons suffering from mental illness), or political opinion, or because of any other particular characteristic.
Although the applicant may be a member of a particular social group of ‘persons suffering from mental illness in India’, there is no evidence before the Tribunal that he would face a real chance of persecution for the essential and significant reason of his membership of that particular social group: s 5J(4)(a) of the Act.
The Tribunal finds that “a moderate risk of societal discrimination” does not rise to the requisite standard of establishing in the mind of the Tribunal a real chance of the applicant suffering serious harm if he is returned to India.
The Tribunal finds therefore that the applicant does not have a well-founded fear of persecution on this basis.
Complementary protection
Based upon the country information set out above, the Tribunal considers there is no intention on the part of the Indian Government, or any relevant agency or authority charged with administering the mental health system in India, to inflict significant harm upon the applicant on account of his mental health status, or for any other reason.
There is no evidence before the Tribunal to suggest that, should the applicant return to India now, or in the reasonably foreseeable future, his mental health status would directly or indirectly result in the arbitrary deprivation of his life, or in the death penalty being carried out upon him.
The Tribunal is satisfied that “a moderate risk of societal discrimination” does not rise to the requisite standard of establishing in the mind of the Tribunal a substantial ground for believing that as a necessary and foreseeable consequence of removing the applicant to India that there is a real risk that he will be subjected to an act or omission by which severe pain or suffering, whether physical or mental, or extreme humiliation is intentionally inflected on him, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment.
Conclusions:
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in his application and as discussed in the hearing, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if he returns to India now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to India. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm
The Tribunal has considered the applicant’s claims under complementary protection.
The Tribunal is satisfied there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflected on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk he will suffer arbitrary deprivation of his life or the death penalty. The Tribunal finds no grounds that suggest the applicant will be subject to significant harm for any reason if he returns to India. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India that there is a real risk that he will suffer significant harm.
Overall 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.
RECOMMENDATION FOR MINISTERIAL INTERVENTION
Under s.417 of the Act the Minister may substitute a more favourable decision if it is in the public interest to do so. The Minister’s Guidelines indicate the matters that should be brought to their attention.[23] In particular it refers to:
Cases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers:
·strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.[24]
·compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person.
[23] PAM3: Act - Ministerial powers - Minister’s guidelines on ministerial powers (s351, s417 and s501J)
The applicant has advanced, implicitly, two grounds seeking ministerial intervention: the first in respect of his own circumstances; the second in respect of that of his son’s.
The applicant’s own circumstances
The applicant has resided in Australia since he was around [age] years of age, he is now [sixteen years older].
The applicant came onshore in 2008 to study, and his evidence to the Tribunal is that he began that process – successfully, if partially, completing his study pathway. The applicant was married in 2010 and is now separated. He has one son with his wife.
In 2018 the applicant was convicted of a serious criminal offence. This, of itself, militates against their being exceptional circumstances in his case. Balanced against this, during his hearing the Tribunal found that the applicant displayed good insight and understanding of the causes criminal offending, and the Tribunal notes that [Mr C]’s report records his opinion that:
Notwithstanding the serious nature of the convictions, I am encouraged by an absence of a prior forensic history involving matters of a sexual nature. It would appear that his offending was situational and opportunistic rather than predatory and I note that it occurred on one occasion only. The research literature indicates that individuals who are innately predisposed towards this type of paraphilic behaviour, by the time they would reach [the applicant]’s age, have generally acquired significant convictions over a protracted period of time.
According to the report the applicant has ‘strong aspirations’ for the future were he to remain onshore; it also appears that his brother is willing to provide social support for the applicant. It should also be noted that the applicant’s son is an Australian citizen and is currently resident onshore.
100. Notwithstanding these factors, the Tribunal is not persuaded that there exists in the applicant’s own situation unique or exceptional circumstances warranting a referral of the matter to the Minister and it declines to do so on this basis.
The applicant’s son’s circumstances
101. The applicant’s son, [Master B], is currently [age] years old. [Master B] is the applicant’s only child.
102. The Tribunal has read and had regard to an undated letter from [Ms A], Clinical Psychologist, recounting a recent interview with [Master B] which offers a professional opinion as to his current circumstances; the letter provides materially as follows:
On Thursday, 23.11.2023, I met with [Master B] as per the request of his uncle, [Mr E]. [Mr E] had requested an assessment of his nephew (aged [age] years) whom he reported to be emotionally distressed due to being separated from his parents. Currently, [Master B]’s [father] is detained in an immigration detention centre and his [mother] residing in Perth.
At the commencement of the session, I met with [Mr E] on his own and who provided background information regarding [Master B]’s difficulties. [Mr E] reported that the family originate from India. [Master B] and his parents were residing in Australia when [Master B]’s parents divorced at [age] years. [Mr E] suspected that the divorce was because [Master B]'s father was convicted of child sexual abuse of a minor. Subsequently, during 2017 approx., [Master B]'s father served a time of imprisonment and then in the immigration detention centre where he has remained since. [Mr E] reported [Master B]’s [mother] resides in Perth and has not made, or desires contact with [Master B] since [Master B] was aged 3 years.
Regarding [Master B] relationships, [Mr E] reported that since [Master B] was aged 3 years, [Master B] has resided in India with his paternal grandparents. [Mr E] explained that [Master B] has formed a strong attachment with his grandmother. More recently [Master B] with his paternal grandparents came to Australia with the intention that [Master B] will remain in Australia. The grandparents will return to India approx. mid-2024 as they are unable to continue to care for [Master B] due to their age. Whilst [Mr E] is caring for [Master B], he reported this to be at times difficult due to having his own immediate family.
According to [Mr E], [Master B] is unaware of his father’s actual whereabouts as the family members have explained his absence to be working away from home. [Master B] is starting to question this explanation of his father’s absence as his peers can see their fathers who also work. Whilst [Mr E] explained that [Master B] is saddened by his father’s absence, [Master B] can speak with his father via phone. According to [Mr E], this was reported to be a positive experience for [Master B]. [Mr E] reports at times [Master B] feels lonely and withdraws to his room. [Mr E] suspects this reaction to [Master B] being separated from his father. More difficult times for [Master B] are occasions, such as Father’s Day and the like. [Mr E] denies that [Master B] experiences suicidal ideation or engages in or discusses self-harm.
[Master B] attended the remainder of the session with his uncle, [Mr E]. At times, [Mr E] was required to act as an interpreter to assist [Master B] as english is a second language for him. [Master B] reported that he hadn’t seen his father for 4 years. [Master B] reported that he was generally happy and settled in school. He reported that he felt sad that he can’t see his father and confirmed that he speaks with his father on the phone and this this is ‘good’.
At the session, [Master B] completed the Revised Child Anxiety and Depression scale. Whilst [Master B] reported heightened separation anxiety, generalised anxiety and panic disorder symptoms, his reported ranges were not in the clinical ranges. It is important to note that his current attachment figures, his grandparents are currently residing with [Master B] and as a result his reporting of his symptoms may be stable.
[Master B] did report some trauma related symptoms such as worries about death and hallucinating that a person with knives, shears and the like are standing beside him, his uncle [Mr E] or his grandfather. [Master B] explained that these hallucinations are experienced at night on a frequent basis. In addition, [Master B] reported frequent nightmares that vary in nature. [Master B] and his uncle were not able to identify any obvious trigger for his experiences.
It is my opinion that [Master B], may be experiencing trauma like symptoms and requires further exploration. The multiple changes with his attachment figures may place further strain upon [Master B] and therefore a psychological assessment and therapy may be required to assist [Master B] adjust to the changes. I recommend the family be supported to devise a narrative of his father’s whereabouts that is appropriate for his age. I cannot comment on [Master B]’s fathers parenting capacity and encourage an assessment by the appropriate professional to be made to determine the suitability of [the applicant’s] application.
103. [Master B] is an Australian citizen, as is his mother, albeit that the two are presently estranged.
104. The Tribunal has read and had regard to the Consent Order which awards the applicant sole custody of [Master B] and has made the applicant responsible for [Master B]’s ongoing welfare.
105. The threshold for referral to the minister is whether there exist ‘strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen’.
106. Policy guidelines also instruct that, per Australia’s obligations under the Convention on the Rights of the Child, where a decision involves the interests of a child, the best interests of the child ‘must be treated as a primary consideration’.[25]
[25] Article 3, Convention on the Rights of the Child.
107. In all of the circumstances it appears to the Tribunal that the whole of the applicant’s circumstances should be assessed in the context of the Minister’s Guidelines, and in particular the risk of serious, ongoing and irreversible harm and continuing hardship to an Australian citizen, namely the applicant’s son, [Master B].
108. The Tribunal therefore refers the applicant’s case for the Minister’s consideration on this basis.
Damian Creedon
MemberATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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