2415744 (Refugee)
[2025] ARTA 701
•22 January 2025
2415744 (Refugee) [2025] ARTA 701 (22 January 2025)
Decision and
Reasons for Decision
Respondent:
Minister for Immigration and Multicultural Affairs
Tribunal Number:
2415744
Tribunal:
General Member F Robertson
Date:
22 January 2025
Place:
Perth
Decision:
The Tribunal affirms the decision under review
Statement made on 22 January 2025 at 4:04pm
CATCHWORDS
REFUGEE – protection visa – India – Federal Circuit Court remittal – fear of harm from money lenders and gangs – borrowed to pay for defence against criminal charges in Australia – convictions, partner visa cancelled and revocation applications unsuccessful – convictions and no repayments to lenders – threats from gangs to mother and son after their return, and recent harassment – community vigilantism about convictions, employment prospects, mental health and level of family support – no claim of fear of harm in previous tribunal and court proceedings – delays in applying for protection and raising some claims – applied after temporary travel document issued and removal process started – vague, inconsistent and embellished evidence and no contemporaneous documentation – country information – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), (4), 36(2)(a), (aa), (2A), 65, 359A
Migration Regulations 1994 (Cth), Schedule 2
CASESASB17 v MHA [2019] FCAFC 38; (2019) 268 FCR 271
AVQ15 v MIBP [2018] FCAFC 133; 361 ALR 227
Carey v Korda [2012] WASCA 228; (2012) 45 WAR 181
CQG15 v MIBP [2016] FCAFC 146; 253 FCR 496
Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731
DQU16 v MHA [2021] HCA 10; (2021) 273 CLR 1
EIG17 v MICMA [2023] FedCFamC2G 804
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
MIAC v SZQRB [2013] FCAFC 33; 210 FCR 505
MBJY (Migration) [2019] AATA 4055
MBJY v MICMSMA [2020] FCA 1161; (2020) 83 AAR 390
MBJY v MICMSMA [2021] FCAFC 11; (2021) 284 FCR 152
MIEA v Guo [1997] HCA 22; (1997) 191 CLR 559
Packer v Deputy Commissioner of Taxation [1985] 1 Qd R 275
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA [1994] FCA 301; (1994) 34 ALR 347
Sundararaj v MIMA [1999] FCA 76
SZLVZ v MIAC [2008] FCA 1816
Trawl Industries v Effem Foods Pty Ltd (1992) 27 NSWLR 326
W375/01A v MIMA [2002] FCAFC 89; 67 ALD 757
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
Statement of reasons
INTRODUCTION
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant a protection visa under s 65 of the Migration Act 1958 (Cth) (the 'Act').
The applicant arrived in Australia in October 2008 on a student visa, later being granted a partner visa. In July 2018, his partner visa was cancelled. The applicant sought to revoke the cancellation, but he was refused. He then applied to review that decision.
That review application was heard and determined in 2019 by the Administrative Appeals Tribunal ('AAT') (Member S Burford as the learned Deputy President then was).[1] The applicant unsuccessfully sought judicial review of those decisions, with his appeal to the Full Court of the Federal Court of Australia being dismissed in February 2021.
[1] MBJY and Minister for Home Affairs (Migration) [2019] AATA 4055 (Member S Burford, as the learned Deputy President then was). The applicant provided a copy of this decision to the Tribunal on 29 October 2024.
The applicant applied for a protection visa in June 2023. The delegate refused to grant the applicant a protection visa, concluding that the applicant did not face a real chance of serious harm or a real risk of significant harm if he were returned to India.
The applicant applied for review of that decision in September 2023. His review application was heard by the AAT, differently constituted. In February 2024, the AAT affirmed the decision to refuse to grant the applicant a protection visa; in doing so, the AAT accepted that the applicant faced a real risk of significant harm because he had borrowed money from a money lender and had not repaid it. However, the AAT also found that the applicant could reasonably relocate to Delhi, where the AAT was satisfied that the applicant would not face a real risk of significant harm. The AAT otherwise referred the decision to the Minister for consideration of exercising the Minister's non-compellable power.
The applicant applied for judicial review of the AAT's decision. He succeeded because the AAT failed to consider his claim that he was at risk of harm because of societal judgment and because he was not put on notice that his ability to relocate was a determinative issue. Thus, the AAT's decision of February 2024 was quashed, and the matter was remitted for re-determination.
On 14 October 2024, the AAT was abolished and replaced by the Administrative Review Tribunal (the 'Tribunal'). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the 'Transitional Act'), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
The applicant appeared before the Tribunal on 22 November 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter. The applicant was represented before the Tribunal by a solicitor who, among other things, provided written submissions and extensive country information all of which I have taken into account.[2]
[2] See written submissions dated 29 October 2024; email dated 30 October 2024 and attachments; email dated 22 November 2024 and attachments.
For the following reasons, I have concluded that the decision under review should be affirmed.
CRITERIA FOR THE GRANT OF A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is either, they are a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or on other ‘complementary protection’ grounds or are a member of the same family unit as such a person who holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) of the Act 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 decision‑maker 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.[3]
[3] Migration Act 1958 (Cth), s 5H(1)(a).
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.[4] Among other things, persecution must involve serious harm[5] and systematic and discriminatory conduct.[6]
[4] Migration Act 1958 (Cth), s 5J(1); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
[5] Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act sets out non-exhaustive examples of serious harm.
[6] Migration Act 1958 (Cth), s 5J(4)(c).
A fear of persecution will be 'well‑founded' if there is a 'real chance' that the person will suffer the feared persecution if returned to the receiving country and the real chance relates to all areas of that country.[7] A 'real chance' is a prospect that is not 'remote' or 'far‑fetched', it does not require a likelihood of persecution on the balance of probabilities.[8]
[7] Migration Act 1958 (Cth), ss 5J(1)(b)-(c); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
[8] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407, 429.
Complementary protection criterion
If a person is found not to meet the ‘refugee criterion’ in s 36(2)(a) of the Act, they may satisfy the 'complementary protection criterion' under s 36(2)(aa). That inquiry is prospective and asks whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a 'necessary and foreseeable consequence' of return to the receiving country.[9] 'Significant harm’ is exhaustively defined in s 36(2A) of the Act.[10]
[9] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
[10] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
ANALYSIS, FINDINGS AND REASONS
An applicant is responsible for providing sufficient evidence to establish their claim to be a person in respect of whom Australia has protection obligations.[11] When assessing the claims made, I am not required to uncritically accept any or all the allegations made.[12] Rebutting evidence is not required before I can find a particular factual assertion is not made out.[13]
[11] Migration Act 1958 (Cth), s 5AAA; AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 [43] (Kenny, Griffiths and Mortimer JJ); EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804 [148] (Ladhams J).
[12] SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 (Middleton J).
[13] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 [65] (McKerracher, Griffiths and Rangiah JJ); Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347 [7] (Heerey J).
In making this decision, I have considered the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs[14] and the Department of Foreign Affairs and Trade ('DFAT') Country Information Report.[15]
[14] See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No.84 made under that section.
[15] 'DFAT Country Information Report: India ', Department of Foreign Affairs and Trade, 29 September 2023, 20230929154911 ('2023 DFAT Report').
Credibility
Assessing credibility is a difficult task,[16] which should be careful, thoughtful, and conducted fairly and reasonably.[17] Inconsistencies may or may not be significant[18] and allowances may be required where an account is given through an interpreter.[19] I should usually give the benefit of the doubt to those who are generally credible but are unable to substantiate their claims.[20]
[16] See Fox v Percy [2003] HCA 22; 214 CLR 118 [31] citing Samuels JA in Trawl Industries v Effem Foods Pty Ltd (1992) 27 NSWLR 326, 348.
[17] See AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 [22]–[28] (Kenny, Griffiths and Mortimer JJ).
[18] ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271 [39]–[45] (Griffiths, Mortimer and Steward JJ).
[19] See, for example, Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 [5] (Burchett J), W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD 757 [15]–[19] (Lee, Carr and Finkelstein JJ); AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 [22]–[28] (Kenny, Griffiths and Mortimer JJ) and ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271 [39]–[45] (Griffiths, Mortimer and Steward JJ).
[20] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; see also Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines); UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, HCR/1P/4/ENG/REV 4 [203]-[204].
Country of nationality
The applicant claimed to be a national of India and travelled to Australia on a passport that appears to have been regularly issued by that country. I am satisfied that India is the applicant’s country of nationality and the receiving country.
India has a population of 1.4 billion people and is considered to be ethnically and linguistically diverse. Over 85% of the population is under 54, and the median age is below 29. Urbanisation affects 36% of the population, and major cities like Delhi and Mumbai host millions of residents.[21] India is a federal structure comprising diverse states rooted in linguistic and historical divisions, including former British colonies and princely states. Each state has a unique governance, legislature, official language, and sociopolitical identity.[22]
[21] 2023 DFAT Report, [2.7].
[22] 2023 DFAT Report, [2.2].
India is characterised by a vibrant democracy with intense political competition. However, Hindu nationalism and populism have risen since the election of Prime Minister Narendra Modi in 2014. The opposition, particularly the Indian National Congress, has weakened significantly at the national level, and India’s political and social diversity makes generalisations about its democracy challenging.[23]
Claims and evidence
[23] 2023 DFAT Report, [2.6].
Background
The applicant was born in [Year]. The applicant has one [brother] (‘[Mr A]’) who lives in Adelaide. The applicant's parents continue to live in India and are looking after the applicant's son.
The applicant came to Australia on a student visa in 2008. He met his future-wife, (‘[Ms B]’), in 2009. They married in December 2010. He obtained permanent residency in 2012 through a partner visa. After completing his studies, in 2010, the applicant worked as [an occupation].[24] The applicant and [Ms B] have one son together, (‘[Master D]’) born in [Year]. [Ms B] has two children from a previous relationship.
[24] See Report of [Mr C] dated 21 December 2023, p 4.
The applicant was charged with several offences during the first half of 2017,[25] about 3 weeks after the events that were the subject of the charges. The applicant explained that he attended a police station, participated in a 'no comment' interview (as was his right) and was then charged. The two children that [Ms B] had from a previous relationship were the complainants in respect of those charges. After the applicant was charged, he was released on bail from the police station with various conditions, including that he cannot contact his stepdaughters and does not attend certain places or locations, for example, childcare centres. Those conditions were later varied to enable the applicant to facilitate [Master D] 's attendance at childcare.
[25] See Statement provided on 12 August 2023 in response to the s 56 invitation; Report of [Mr C] dated 21 December 2023, p 3.
The applicant's substantive claims for protection arise from, and are related to, these charges and what followed. Among other things, he claims to have borrowed money to fund his defence of the charges. Indeed, the applicant's case is succinctly summarised by the submissions filed as follows:[26]
[The applicant] claims protection under both section 36(2)(a) of the Migration Act 1958 (Cth) (Act) and section 36(2)(aa) of the Act. This is on the basis of the risk of serious harm from money lenders due to unpaid debts, when combined with [the applicant] 's other vulnerabilities (discussed below but including knowledge of his criminal convictions, family land dispute, mental health, sole carer for his son and lack of familial support). It is submitted that [the applicant] is part of a particular social group of "people who have borrowed from unlawful moneylenders and are unable to repay the loan." It is also submitted that a necessa1y and foreseeable consequence of being removed from Australia to India, [the applicant] will face a real risk of significant harm.
[26] Written submissions dated 29 October 2024 [3].
I now turn to consider the claims and evidence before the Tribunal.
Engaging solicitors and the claimed first $50,000 advance
The applicant engaged solicitors, [Law firm], to represent him in the criminal proceedings. Those solicitors were, I accept, privately funded. That firm, among other things, applied to amend his bail conditions to permit him to take his son to childcare. The applicant claimed he initially paid his solicitors between $3,000 and $5,000 for those bail proceedings.
The applicant claimed he was given an estimate of $90,000 regarding his trial. The applicant claims:
I contacted many people for financial help, but no one assisted me. I spoke to a man in Australia who gave me the number of [Mr E], a college acquaintance from [College], and told me to call him on the Signal app. I explained my situation to [Mr E], who then gave me the number of a money lender. Initially, I contacted the money lenders by phone, and they later instructed me to communicate via the Signal app. They agreed to lend me $50,000 in cash at a 10% interest rate, doubling in a year if unpaid. This money was handed over to my parents in India.
As is clear, the applicant claimed to have borrowed $50,000.
The applicant claims that around the middle of 2017, he and his ex-wife invited his parents to Australia. On [date] August 2017, the applicant's mother (‘[Ms F]’) arrived in Australia.[27] It is claimed that she brought $10,000 in cash with her. It is further claimed that two other men also travelled to Australia at the same time as [Ms F], each carrying $10,000 cash each. The balance of the funds that the applicant claims to have borrowed, the remaining $20,000, is claimed to have been made available to the applicant's parents to assist with their expenses.
[27] See Movement record for [Ms F].
At the hearing, the applicant explained that the money was brought this way because a person cannot bring more than $10,000 in cash into Australia in cash, so the decision was made for the funds to be split amongst three people. As I raised with the applicant, that is not an accurate reflection of the law. A person can bring as much cash as they wish into Australia, but they must declare amounts more than $10,000.[28] Indeed, the 'splitting' of $30,000 amongst three people in the manner the applicant and his mother claim occurred may constitute an offence,[29] commonly referred to as 'structuring'.
[28] See Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth).
[29] See Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), ss 142-143.
The applicant claims that most of the $30,000 brought to Australia was used on legal fees, although some of it was used on living expenses. He explained this on the basis that around 3 weeks after he was charged, his home was broken into, and valuables, including jewellery, cameras and laptops, were stolen. The applicant claimed that most of the $30,000 was used on legal fees, but later in the hearing claimed that around $20,000 - $25,000 was used for legal fees and the rest went towards living expenses. He repeated that figure in a statutory declaration lodged after the hearing.[30]
[30] See Statutory Declaration of the applicant dated 18 December 2024.
[Ms F] departed Australia on [date] January 2018 together with [Master D].[31]
[31] Movement record for [Ms F]; Movement record for [Master D].
The claimed second $50,000 advance
The applicant claims he later arranged to borrow further $50,000. At the hearing, his evidence was non-specific about when this occurred other than it was in 2018. He claims that a person paid him in cash in the Perth CBD. He claimed the money was then taken to his solicitor and paid to him. He claims he did not receive a receipt for the funds.
In circumstances where there was a lack of contemporaneous documentary records, I determined to issue a summons to the applicant's former solicitors to produce their trust and general ledgers. They complied with the summons. The material information from that production was then provided to the applicant in writing, as required by s 359A of the Act, and the applicant was invited to comment on it.
In response, the applicant provided a statutory declaration dated 18 December 2024. That statutory declaration claimed [Law firm] told the applicant his legal fees would 'cost nearly $90,000'. It further claimed that from the $30,000 his mother brought to Australia, he used around $20,000 - $25,000 to pay his lawyer between May 2017 and March 2018. He claims he obtained a further $50,000 AUD in 'the second week of April 2018' and cannot remember the exact date. He claims he then 'approached' [Mr G, the principal of Law firm] and offered 'to pay in cash, off the books, for a discount'. The applicant claims [Mr G] agreed but said he would not get a receipt. The applicant claims that he responded that he 'didn't mind and asked him to fight my trial' and that he told [Mr G] he would pay him after the trial if any balance remained.
The applicant further asserts that he gave [Mr G] 'this cash'—by which I infer the applicant means the $50,000 AUD—in the first week of May 2018. He explained that he had handed [Mr G] a 'black plastic bag' that he had removed from his backpack, which contained $50,000. He claims that he offered [Mr G] the opportunity to count it, but [Mr G] declined.
The applicant's conviction and emergence of threats of harm
On 31 May 2018, the applicant was convicted following trial and sentenced to a term of imprisonment.[32] On [date] June 2018, the [Ms F] and [Master D] returned to Australia.[33] The applicant then claims that in June 2018, he was convicted and sentenced to 12 months in prison and he was made eligible for parole. The applicant claims that following his conviction he did not make any repayments to his creditors.
[32] MBJY and Minister for Home Affairs (Migration) [2019] AATA 4055.
[33] Movement record for GM; Movement record for [Master D].
On 5 July 2018, the applicant's visa was cancelled by operation of s 501 of the Act.[34] In response, the applicant sought the revocation of cancellation. On 20 November 2018, the applicant was granted parole.[35] On 5 December 2018, the applicant was detained as an unlawful non-citizen.[36]
[34] MBJY and Minister for Home Affairs (Migration) [2019] AATA 4055 [2], [18].
[35] MBJY and Minister for Home Affairs (Migration) [2019] AATA 4055 [113].
[36] MBJY and Minister for Home Affairs (Migration) [2019] AATA 4055 [114].
On [date] January 2019, [Ms F] and [Master D] departed Australia.[37]
[37] Movement record for [Ms F]; Movement record for [Master D].
The applicant claims that in or around 'January or February 2019', he disclosed to [Mr A] that he borrowed money from 'gangsters', specifically Lawrence Bishnoi and Goldy Brar gang.[38]
[38] Statutory declaration of [Mr A] dated 1 November 2024.
On 15 March 2019, a delegate of the Minister refused to revoke the cancellation of the applicant's visa.[39] On 22 March 2019, the applicant applied for review of the decision not to revoke the cancellation of his visa.[40] He claims he borrowed around $20,000 from [Mr A] for these proceedings.
[39] MBJY and Minister for Home Affairs (Migration) [2019] AATA 4055 [6].
[40] MBJY and Minister for Home Affairs (Migration) [2019] AATA 4055 [7].
On [date] May 2019, [Ms F] and [Master D] returned in Australia.[41] The following day, on [date] May 2019, the AAT heard the applicant's review application with respect to the decision not to revoke the cancellation of the applicant's visa.[42]
[41] Movement record for [Ms F]; Movement record for [Master D].; MBJY and Minister for Home Affairs (Migration) [2019] AATA 4055 [126].
[42] MBJY and Minister for Home Affairs (Migration) [2019] AATA 4055 [11].
On 7 June 2019, the AAT affirmed the decision not to revoke the applicant's visa. Toward the end of the hearing in the present review application, the applicant gave evidence that he recalled after the AAT decision, his immigration lawyer said to him something to effect of 'why don't you apply for a protection visa?'. The applicant said that he did not remember how he responded.
On [date] June 2019, [Ms F] and [Master D] departed Australia and returned to India.[43] It is claimed that shortly after their return, in 'June or July 2019', that is shortly after [Ms F] and [Master D] returned to India, it is claimed that gangsters related to the Goldy Brar and Lawrence Bishnoi gangs threatened to kill the applicant if he was to return to India.
[43] Movement record for [Ms F]; Movement record for [Master D].
On [date] August 2020, [name] dismissed the applicant's application for judicial review of the AAT's decision affirming the non-revocation of the visa cancellation.[44] The applicant appealed that decision to the Full Court of the Federal Court of Australia. On 15 February 2021, his appeal was dismissed.[45] The applicant did not seek special leave to appeal to the High Court of Australia.
[44] ([name]).
[45] [deleted].
In May or June 2021, it is claimed that whilst [Ms F] was standing outside of her home, two men on a bike fired gunshots into the ground. [Master D] was inside at the time. The applicant's evidence at the hearing was that this incident was particularly concerning for him, and he was worried that, among other things, his son would be killed.
In September 2021, the applicant and [Ms B] signed consent orders in proceedings in the Family Court of Western Australia ('FCWA') between him and [Ms B], which he had commenced in July 2021. The consent orders were in the following terms (errors as per the original):
1. The children [Master D] born […] living with grandparents [Ms F] and [omitted] from 01/jan/2019.[Address, Village].As
2. As agree between both parties that father [the applicant] have full right to apply son's visa,education,applying passport or any other documents related
3. Father [the applicant] providing living space to [Master D] which already living with grandparents in India from 01/jan/2019.
4. [Ms B] mother of [Master D] have full right to call,video call,email or even meet when ever she likes or wanted. Agree between both parties
5. As agree between both parents that father [the applicant] have full responsibility of his son [Master D] for day to day activities.
The FCWA made those orders [in] October 2021 by consent. The applicant conceded that when those orders were made and notwithstanding that they deal with [Master D] continuing to live in India, he had not disclosed to [Ms B] or the FCWA that he considered [Master D]'s life was in danger in India.
The applicant claims he did not tell [Ms B] because he thought she did not care about [Master D]. When I asked whether he had considered whether [Ms B]’s position might have been different had she been told about the risks the applicant now claims [Master D] faced and continues to face. The applicant avoided responding before eventually asserting that [Ms B] was ‘not interested’ in [Master D].
I observe that the evidence before me indicates that on 18 November 2021, the applicant raised with a psychologist that his parents borrowed money from "mates" to pay his legal bills and that he feared these people might hurt him or his son to extort money from him.[46] I further note that the same entry later records 'lots of fighting in extended family'. Significantly, those notes do not include a reference to Lawrence Bishnoi, Goldy Brar, gangsters, gunshots or actual threats to kill the applicant having been made.
[46] See IHMS records entry dated 18 November 2021.
The applicant further claims that in November or December 2022, his parents travelled to Bangalore for a holiday to escape the 'stressful situation' in Punjab. [Ms F] characterised the trip as being because she and her husband 'were scared'. It is claimed that the applicant's parents were approached and threatened when they arrived in Bangalore.
In June 2023, the applicant applied for a protection visa. That is despite the applicant having exhausted his appeals against the cancellation of his visa more than two years previously. At the hearing, he claimed that he did this only in response to the Department obtaining a temporary travel document for him and taking steps to bring about his removal from Australia. He claims a friend told him that if he applied for a protection visa, that process would be halted. He otherwise claimed that he was unaware of the ability to apply for protection prior to this time and could not afford to obtain advice.
[Ms F] and [Master D] came to Australia in September 2023.[47] They departed in late August 2024 and returned to India.[48] It is claimed that since [Ms F] and [Master D] returned to India in September 2024, [Ms F] has been harassed by two men who remain outside her home.
[47] Movement record for [Ms F]; Movement record for [Master D].
[48] See Movement record for [Ms F]; Movement record for [Master D].
The applicant's oral evidence at the hearing was that in September 2024, the applicant's parents were again threatened by two men who told them they were waiting for the applicant to return to India. [Ms F] gave evidence in similar terms.[49]
[49] See also statutory declaration of [Ms F] dated 1 November 2024.
The applicant's mother (‘[Ms F]’)
[Ms F] is the applicant's mother. The applicant lodged a statutory declaration from her dated 1 November 2024. That statutory declaration claims, among other things:
… I have been staying with my other son in Adelaide for the past year to look after my grandson, [Master D], while [the applicant] is in detention. I had to leave Australia because my visa expired, and although I tried to extend it, I was only granted an additional month. Consequently, I had to leave the country with [Master D], who is now on a tourist visa in India.
In June or July 2019, gangsters related to the Lawrence Bishnoi gang threatened us in the [market], demanding money from my son and threatening to kill him if he didn't pay. That was the first time we found out that these people were from the Lawrence Bishnoi gang, and I informed my son about it.
In May or June 2021, two men on a bike fired gunshots in front of our house while I was standing outside. They looked at me and then rode away. Later, when we went shopping, different men threatened us not to report anything to the police, or it would be bad for our family.
We were terrified and believed that if [the applicant] returned to India, he would be killed. In December 2022, we went to South India because we were scared. However, even there, gang members approached us in the market with guns, saying they were waiting for my son to return to India and that we couldn't escape them.
Since returning to India in September 2024, we have experienced the same harassment. New people come on motorbikes and watch our house, making us feel unsafe. I am under a lot of stress because I am temporarily looking after [Master D], whose mental health is worsening. I cannot provide him with the same care and support that he would receive in Australia. I am coming back to Australia with my grandson in the first month of 2025 because India is not safe for him. The constant threats and inability to access proper medical care are severely impacting his well-being. He needs to be with his father, who has custody of him, as I am not able to provide care for longer due to my health issues and age. It is crucial for us to return to Australia where [Master D] can receive the care and support he needs.
I believe that my grandchild could be harmed by these debt collectors as they can go to any extent to get their money back we are really scared because I've heard news lately about how big this gang is and how they're even killing famous people around India.
[Ms F] gave evidence by telephone. Among other things, [Ms F] said that she could read and write in English but had difficulty speaking and understanding spoken English. She fears that the gangsters who have threatened her will kill the applicant if he returns to India. When I asked [Ms F] about the threats, she gave her evidence in terms that were essentially the same as that contained in her statutory declaration, almost as if she was reading from the statutory declaration.
Despite the threats, [Ms F]’s evidence was that she had not reported the matter to the police. She explained this was because she had been warned not to do so.
[Ms F] claimed that she arranged to transport $10,000 to Perth for the applicant and gave $10,000 to two other men to travel to Australia with. When I asked who paid for the plane tickets, [Mr F] initially responded that she did not remember but thought it was 'from the same amount'.
[Ms F] explained that people are constantly present at her house, although sometimes they leave for only a few days. When I asked [Ms F] why she believed the money lenders were associated with the Lawrence Bishnoi Criminal Organisation ('LBCO'), she claimed it was because they said they were. When I challenged her on why she believed the claims, her response was vague: 'They said it' and’ We know'.
When asked whether anyone other than herself and her husband knew of the applicant's convictions, her evidence was that 'everyone' knows about them. When I asked [Ms F] why she did not leave [Master D] with [Mr A] if India was dangerous, she said that she had tried to extend her visa but was only able to do so by one month.
[Ms F] gave also evidence about the land dispute. Her evidence was that there was a dispute with her husband's brother about small land in the village, which her husband's brother had taken control of. When I asked why that dispute involved the applicant, she claimed that 'they', meaning her and her husband, could not take any action regarding the land because of the applicant. When I asked her what prevented them from taking action, [Ms F] claimed that they could not 'do much' because of her old age and their need to take care of [Master D].
The applicant's brother (‘[Mr A]’)
The applicant's brother, [Mr A], also gave evidence to the Tribunal. [Mr A] moved to [Country] around 2012 and moved to Australia around 2022. He first became aware of his brother’s borrowing from the LBCO in or around January or February 2019. He has also advanced funds to his brother, around $50,000. He claims he was concerned about his parents' experiences and sought to have his nephew remain in Australia. However, he claims that was impossible due to visa requirements (related to his mother) and a lack of support as both he and his wife work.
[Mr A] has a child who is almost [Age] years old. When I discussed the difference between the impact of caring for their [Age]-year-old child and [Master D], particularly where [Master D] also goes to school full time, [Mr A] could not identify any significant practical impediments to [Master D] remaining with him in Australia. He then emphasised that the primary issue was that [Ms F]’s visa could not be extended and that [Master D] had to remain with [Ms F] because [Ms F] is, essentially, [Master D]'s primary attachment figure, and he would not cope without her.
Concerns about the statutory declarations
During the hearing, I raised my concerns about the form of the evidence provided. In that regard, [Ms F]’s statutory declaration contained the following evidence:
In December 2022, we went to South India because we were scared. However, even there, gang members approached us in the market with guns, saying they were waiting for my son to return to India and that we couldn't escape them.
The statutory declaration of [Mr A] contained evidence in the following terms:
My parents and my brother's son went on holiday to Bangalore in December 2022 . My parents told me that two men approached them in the market after two days of arrival. They had guns and said that they were waiting for my son to come back to India and that we couldn't escape them.
Each witness referred to past events in similar terms and used similar phrasing. In their written evidence, each witness gave evidence in almost identical, albeit imprecise, terms regarding the dates of events.
The evidence before me was that the statutory declarations were not prepared by the applicant's solicitors but were arranged by the applicant and his witnesses. In that regard, the statutory declarations (each dated November 2024) essentially repeat the information in the submissions and in essentially the same terms, albeit with some changes to put the evidence in the first person. As in the above excerpt from [Mr A]’s statutory declaration, aspects are expressed from [Ms F]’s first-person perspective.[50]
[50] E.g. 'They were waiting for my son'; 'we couldn’t escape them'.
In response to my concerns, the applicant's representative submitted that she had emphasised the importance of consistency in the evidence presented to the Tribunal. While that might explain, in part, why the information is expressed in such similar and similarly vague terms, it does assist in persuading me that the evidence is credible or reliable.
Where witnesses are expected, or encouraged, to confer with a view towards obtaining 'consistent' evidence, it risks the credibility and reliability of the evidence given by them. In Day v Perisher Blue Pty Ltd,[51] it was observed:
It has long been regarded as proper practice for legal practitioners to take proofs of evidence from lay witnesses separately and to encourage such witnesses not to discuss their evidence with others and, particularly not with other potential witnesses. For various reasons, witnesses do not always abide by those instructions and their credibility suffers accordingly. In the present case, it is hard to see that the intention of the teleconference with witnesses discussing amongst themselves the evidence that they would give was for any reason other than to ensure, so far as possible, that in giving evidence the defendant's witnesses would all speak with one voice about the events that occurred. Thus, the evidence of one about a particular matter which was in fact true might be overborne by what that witness heard several others say which, as it happened, was not true. This seriously undermines the process by which evidence is taken. …
[51] See Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731 [30].
In making those observations, I intend no criticism of the applicant's representative, who I accept advised about the desirability of consistency, without intending to suggest expressly or implicitly that the applicant, his mother and his brother take steps to ensure their evidence is consistent. Based on the statutory declarations, I infer what appears to have occurred.
Consistency is only one aspect to consider when it comes to assessing the credibility and reliability of claims. Indeed, it is well recognised that the evidence of multiple witnesses being too consistent can itself cause concerns about the reliability of that evidence. However, what is also important is that evidence that is given is the genuine evidence or recollection of a person, untainted by collaboration with others, to ensure consistency. The result is that given the level of similarity in which the evidence was given, and that the oral evidence which was given at the hearing about the claimed conduct of the money lenders did not materially depart from, nor materially expand upon, the written evidence given by the witnesses in any significant or material way as it related to the protection claims. In those circumstances, I am concerned as to the reliability of that evidence and in particular whether the witnesses sought to ensure that their evidence is closely following the evidence that has been providing in writing. Having considered the written evidence provided by [Ms F] and [Mr A] and their oral evidence in support of that written evidence, I am not satisfied that their evidence is either credible or reliable. I am satisfied that they endeavoured to give evidence to support the applicant, who they both no doubt care for greatly and wish to be able to remain in Australia. However, the result of my concerns is such that I am not prepared to give that evidence any real weight.
Delay in applying for protection
The applicant applied for a protection visa in June 2023. On 9 August 2023, he was invited to provide additional information in support of his application. The request included, relevantly:
Claims lacking detail
Your statement of claims lacks key details of your claims about fearing from money lenders in India because you borrowed money from them and cannot repay them back, such as dates and locations. You have also not provided any evidence in support of these claims. Due to your lack of detail or evidence, I am concerned about the genuineness of your protection claims. Therefore, to assist me in deciding whether to accept that these claims are genuine, I am inviting you to provide further information and documentary evidence about what happened to you in India including dates and locations of events.
Delay in lodgement
In your application, you claimed that you fear harm from a money lender if you return to India because you owe them money that you cannot repay. However, you did not apply for a Protection visa until nearly 5 years of being held at a detention facility after the cancellation of your visa. Due to the length of time between your visa cancellation and immigration detention and when you lodged your application, I am concerned about the genuineness of your protection claims. Therefore, I am inviting you to provide any information about why so much time passed before you lodged your application.
…
If you are unable to provide more information about your claims or copies of documents, please provide a detailed explanation of why you cannot provide them. If you are unable to provide documents, please also provide details of the efforts you made to obtain them.
The applicant responded on 12 August 2024, providing a written statement. In that statement, the applicant claimed, among other things, that:
(a)'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';[52]
(b)the money lenders gave $50,000 to his parents;[53] and
(c)his mother came to Australia but was only allowed to carry $10,000. The lenders otherwise organised for two people to 'carry cash 20000' and that 'so my mother organise to bring 30000 in cash'.
[52] Statement provided on 12 August 2023, [4].
[53] Statement provided on 12 August 2023, [6].
The applicant also explained that when he was in the 'AAT', '[he] didn't explain that [he] borrow[ed] money from private lender…related to big gangsters'.[54]
[54] Statement provided on 12 August 2023, [19].
The applicant did not directly engage with, respond to, or comment on, the part of the letter which asked him to provide information about 'why so much time passed before you lodged your application'. Specifically, he did not claim that he was unaware of his ability to apply for a protection visa.
I have considered that the applicant's response to the 9 August 2023 request was short, at 3 days. Nevertheless, I place weight on the fact that the reasons why the applicant did not apply for protection more proactively are matters entirely within his knowledge.
The applicant did not apply for protection until 14 June 2023, a significant delay. The delay is almost five years, reckoned from the cancellation of his visa. Calculated from around the date his appeal to the Full Federal Court was dismissed, it is more than two years.
At the hearing, he claimed that he was unaware that he could apply for a protection visa until shortly before he did so. Towards the end of the hearing, the applicant suggested that his then-lawyer had raised the prospect of applying for a protection visa with him around the time of the proceeding seeking revocation of the cancellation of his visa.
The prospect of a protection visa application was raised in the non-revocation decision[55] I do not accept that it is plausible that the applicant was unaware of his ability to seek protection until shortly before he applied.
[55] MBJY and Minister for Home Affairs (Migration) [2019] AATA 4055 [196]
I am satisfied that the applicant has not adequately explained his delay in applying for protection. I am satisfied that he knowingly delayed applying for protection and only did so in response to attempts to bring about his removal from Australia.
DOES THE APPLICANT SATISFY THE REFUGEE CRITERION FOR PROTECTION?
I note that 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 is for the reason claimed.[56] Past events are not a certain guide to the future but may provide a reliable basis for determining the probability of their recurrence.[57]
[56] Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 1997 CLR 559 [124] (Brennan CJ; Dawson, Toohey, Gaudron, McHugh, Gummow JJ).
[57] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 574.
Harm feared related to and arising out of the money lender claims
Loan sharks and informal moneylenders operate widely in India, particularly in rural areas where they provide credit for necessities like healthcare or migration costs. Despite the availability of microfinance and digital lending platforms, predatory lending practices have moved online, targeting less educated or illiterate borrowers. Harassment by moneylenders, often involving contact with family or employers, is more common than direct violence, though incidents of borrower suicides, particularly in rural areas, have been reported.[58]
[58] 2023 DFAT Report, [3.175].
Loan sharking is illegal under the Usurious Loans Act 1918, which bans excessive interest rates, though enforcement is inconsistent, and definitions of “excessive” remain unclear. Fintech-based lending, while innovative, is poorly regulated, and legal remedies for exploitative practices face systemic judicial challenges. Debtors rarely face societal or official violence but may experience shame or discrimination within their communities if they default. DFAT assesses that the overall risk of violence linked to moneylending cannot be ruled out but is unlikely.[59]
[59] 2023 DFAT Report, [3.177].
The applicant relies on information about harassment, violence and other harm perpetrated by private money lenders on their customers in India[60] and, in some instances, driven to suicide.[61]
[60] 'At least 226 people booked in 134 FIR against private money lenders in Gujarat', 10 July 2024, The Hindu.
[61] 'Harassed by loan sharks, 48-year-old lab technician dies by suicide', 6 June 2024, Hindustan Times; 'Businessman Attempts Suicide Due to Loan Shark Pressure Six Arrested', 22 October 2024, Times of India; 'After being tortured by loan sharks, UP school principal kills self', undated, Deccan Herald.
Lawrence Bishnoi criminal organisation, Goldy Brar
The applicant has provided extensive country information in respect of Goldy Brar, Lawrence Bishnoi and their respective criminal organisation, colloquially known as the Lawrence Bishnoi gang. In these reasons I will refer to the relevant group and its members where the context permits as the Lawrence Bishnoi Criminal Organisation ('LBCO'). I have considered that information. The information includes, but is not limited to, information about:
(a)the involvement of the LBCO, allegedly at the instigation of the Indian government, in the assassination of a pro-Khalistan separatist in Canada;[62]
(b)a bombing that occurred on 26 November 2024 that Goldy Brar and Rohit Godara claimed responsibility for;
[62] See, for example, 'Inside the world of Lawrence Bishnoi, the Indian gangster Canada says India is using as a proxy', 21 October 2024, CBC News.
The country information relied upon and provided by the applicant demonstrates that the LBCO is a significant criminal enterprise operating on an international scale. Lawrence Bishnoi's brother sought asylum in the USA after travelling on fake documents.[63] I further accept that Goldy Brar is a high-ranking and significant member of the LBCO.
[63] 'Lawrence Bishnoi's brother seeks asylum in US after arrest, say sources', 20 November 2024, India Today.
Essentially, the applicant claims to have borrowed $100,000 AUD from private money lenders connected with the LBCO or who at least claim such a connection. He further claims that because of those borrowings, his parents have been threatened and harassed. He fears that if he were to return to India, he would face significant physical harm and even death.
As I will explain, I do not accept that the applicant's claims to have borrowed money are credible. I consider that he has embellished his claims related to his borrowings to obtain a migration outcome. I have several concerns about the applicant's evidence about having borrowed money which, collectively, lead me to reject his evidence to have borrowed $100,000 or that he has borrowed money from the LBCO or individuals associated with the LBCO. To explain why I have reached these views, it is useful to refer to and discuss the circumstances surrounding the claimed borrowings.
Delay in raising money lender claims
The applicant claims to have become aware of the alleged association between the moneylenders and the LBCO in or around January 2019. This assertion is supported by the evidence provided by [Mr A]. However, the applicant has not clarified how this information was conveyed to him or corroborated the circumstances in which [Mr A] acquired this knowledge. This lack of detail raises questions regarding the reliability of this evidence and its consistency with the broader narrative of the applicant’s claims.
Notably, the applicant did not raise the risk of harm allegedly posed by the moneylenders during the proceedings before the AAT. During the hearing, the applicant did not provide a satisfactory explanation when asked why this risk was not previously disclosed. His failure to address this critical omission undermines the credibility of his claimed fears. It suggests that this aspect of his case may have been an afterthought rather than a genuine and pressing concern.
In prior proceedings concerning the revocation of his visa cancellation, the applicant was questioned about his assertion that his life would be at risk in India. His responses indicated that the perceived threat was based on societal reactions to his past criminal conduct. At no point in those proceedings did the applicant refer to threats or harm from moneylenders or their alleged connections to the LBCO, which significantly detracts from the plausibility of these claims.
When specifically asked why he believed people would seek to harm him upon his return to India, the applicant solely referred to community hostility stemming from his criminal record. The absence of any mention of the alleged threats from moneylenders, particularly when directly prompted about potential harm, further undermines the credibility of his current claims.
The applicant’s narrative regarding threats from moneylenders associated with the LBCO lacks credibility and is inconsistent with his prior conduct and statements. The applicant asserts that these threats commenced after his release from prison and placement in immigration detention, a period greater than one year from his initial borrowing of $50,000. This timeline raises doubts about the immediacy and authenticity of the alleged threats, particularly given the absence of corroborating evidence.
The applicant’s delay in seeking protection is another factor that weighs against the credibility of his claims. By his own account, the threats from the moneylenders were apparent by May or June 2021, yet he did not lodge a protection visa application until two years later. This extended period of inaction suggests either a lack of genuine fear or a calculated attempt to delay his removal from Australia.
If the applicant genuinely believed there was a connection between the moneylenders and the LBCO, it is implausible that he would not have raised this during the visa revocation proceedings. The applicant failed to mention this then and delayed raising the claim until his protection visa application. This prolonged delay—particularly in procedural milestones such as the affirmation of the cancellation decision and the dismissal of his appeal by the Full Federal Court—casts serious doubt on the bona fides of his stated fears.
The applicant had ample opportunity to raise his claims during the visa cancellation revocation proceedings, particularly in the context of Australia’s non-refoulement obligations. However, the only fear articulated by the applicant at that time pertained to societal attitudes linked to his past offending. The applicant acknowledged during the hearing that he did not disclose the alleged debt to moneylenders or related threats during the AAT proceedings in 2019, further undermining the consistency and reliability of his narrative.
In assessing the credibility of the applicant’s claim that he borrowed money from a moneylender, the inconsistencies between his statements, his delay in disclosing critical details, and the absence of corroborating evidence over an extended period weigh heavily against the veracity of his claims. These factors, viewed cumulatively, suggest that the applicant’s fears are exaggerated or fabricated to bolster his protection visa application.
Why did the applicant borrow the money?
The evidence and case ultimately advanced at the hearing of the applicant's review application were that he borrowed $50,000 in two tranches. However, only $80,000 eventually went to the applicant to help fund his legal fees.
Overall, I found the applicant's evidence regarding the borrowing arrangement unconvincing and, in some respects, implausible.
The applicant claims that he was put into contact with the money lenders through a friend. He claims that he was quoted 10% interest, plus if he did not repay the funds within a year, the amount to be repaid would double. He explained that he told the money lender that he was going to court and needed the money to fight his case. He claimed he told the money lenders what the case was about.
In response to my question about whether they asked how he would repay them, the applicant said that he told them he would pay them back 'after he won his trial'. According to the applicant's evidence, the money lenders did not question what would happen if he did not win the trial. Moreover, the applicant claims that the money lenders did not require collateral or security. I consider that to be somewhat implausible in circumstances where the applicant was located overseas and the discussion of repayment was limited to the applicant winning a court case. Ordinary human experience suggests that any person engaged in money lending, licenced or unlicensed, would approach a promise of repayment which essentially was conditional upon the outcome of a court action as being something that could not simply be accepted at face value.
How did the applicant intend to repay the money?
On any view, the applicant was borrowing a significant amount of money with limited prospects of repaying that amount shortly before significant interest rates would, on his case, apply. The applicant submits he 'had told the money lender and debt repayment enforces that he would be able to repay the loans once he won his criminal trial (which he thought at the time he would win).[64] His oral evidence at the hearing included that he thought he would get some money back from winning the trial. His evidence was that he had 12 months to repay the sum, or it would double.
[64] Written submissions dated 29 October 2024 [4].
When I asked the applicant how he thought he would have been able to repay the money, particularly regarding the quantum borrowed and the claimed interest rates, he echoed the written claim that he thought he would 'win' the trial. Upon further exploration, he explained, it was because the allegations that had been made were based on his evidence against the evidence of his stepchildren, both of whom made complaints. Essentially, he considered it was a 'he-said-she-said' scenario.
The applicant was acquitted of offences concerning one of his stepchildren but convicted regarding the other. The applicant's evidence before the Tribunal was that he gave evidence at his trial and had denied the offences.
In that context, in the Non-Revocation Decision, the Tribunal set out the sentencing judge's findings regarding the applicant's offending. They were as follows:
[54] At the sentencing hearing, [the Sentencing Judge] made the following findings with respect to the circumstances in which the offences were committed, in conformity with the findings made by the jury:
Based on the child’s evidence which the jury accepted these are the material facts I find for the purposes of sentencing and I’m satisfied of each of these matters beyond reasonable doubt. All three counts occurred while the two of you were in the lounge room of your home watching television. The other two occupants of the house, your wife and your two-year-old son had gone to bed.
The two of you were on an L-shaped couch in the lounge room. You were lying with your head at one end of the couch, that was the long side of the couch which face the television. You were wearing loose box shorts and had no shirt on. The child was sitting on the other side of the couch on the L near the corner where the two sides joined. She was wearing shorts and a long-sleeved top.
While she was watching TV she looked over to see you pull your penis out from the bottom of your boxer shorts and start to play with it. She saw you stroke your penis slowly with your right hand which was wrapped around your penis at least twice. You were holding of your phone with the other hand.
Shocked to see what you are doing she averted her eyes and went back to looking at the television in order to avoid looking at you. You began to start a conversation with her and began moving your legs about, both of which the child thought was an attempt by you to get to look at you. But she did not look although she could see what you were doing certainly with your legs out of the periphery of her vision. This is the offending the subject of Count 2 [indecent dealing with the child by masturbating in her presence].
Eventually got up, you put your penis back inside your shorts and came and sat next to her with your thigh touching her thigh. You started to ask her questions of a personal and sexual nature. You began by asking about what her friends had done sexually and then what her older sister had done sexually and in particular whether her sister had been used by her father for sex.
You then wanted to know what this child had done with guys of a sexual nature. Because you kept nagging her about this she made of a story about kissing a guy at a party. You then told her a story about how when you the child’s age you lost your virginity to a 25-year-old at a wedding.
You began to ask her if you could be best friends and then you spoke about to her about doing sexual things. At some point you asked her whether she masturbated to which she replied, ‘”no”. You then suggested that if she ever felt like doing sexual thing she could do stuff for you. When she said, “no, please don’t”, you responded with the words “yes. It’s not like we’re going to have full sex. I’m not your dad so it’s okay to do things like that.” Of course it wasn’t okay.
You also asked whether she would ever have sex with older guys and then asked her what she did with guys. When she responded with the fact that she didn’t really like eyes touching her you began to stroke her thigh with your hand. You did this twice. She was scared and uncomfortable and started crying. When you asked why she was crying she lied and said it was because of the TV. You wiped away her tears with your fingers and kept stroking her thigh. This stroking was skin on skin contact as she was wearing shorts and is the conduct the subject of Count three [Indecent dealing with the child by touching her thigh].
You then asked if you could touch her and she said, “oh, please, don’t touch me.” But then you touched her right breast and squeezed it. You did this as you were, in her words, explaining things to her which I’m satisfied with sexual things. On the evidence you touched and squeezed her breast about six times. This was, however, over her clothing. This of course is the conduct the subject of Count 4 [indecent dealing with the child by touching her breast].
This continued until your wife, the child’s mother, walked into the room. When you stopped the touching and changed the conversation to a discussion about stress management although on the child is evidence there was still a sexual overtone to that discussion.
Your wife asked what your conversation with the child was about you reassured her that you were talking about stress management. You wife returned to the bedroom after which you continue to ask the child to do sexual things for you. The child felt you were pressuring her.
(R1, G7, pages 31-34)
[55] Her Honour went on to note that:
I’m satisfied beyond a reasonable doubt that these offences are an isolated incident of offending against this child. On her own evidence you’ve never done anything sexual to her before.
(R1, G7, page 33)
Further, her Honour accepted the offending “…probably was an opportunistic exercise …there was no evidence of you grooming the child over the time.” (R1, G7, page 35)
I asked the applicant about the land dispute that he has in his family. As I understand the applicant's evidence, his uncle gave an affidavit to his father, in which the uncle claimed that the land the applicant's father owns belonged to the uncle. He claims that his father wants to sell the property, but the uncle refuses to let him sell the property. It was further claimed that the uncle knew about the applicants' criminal convictions and would tell everyone and disseminate information. He also claims that the uncle knows the applicant's borrowings and will provide information about him to other people, including the money lenders.
I asked the applicant why the harm related to the land dispute had not been raised in the written claims before the delegate. The applicant claimed he was more concerned about the issues with the LBCO related to his borrowings.
I am prepared to accept that there may be a dispute in the applicant's broader family in relation to some land in India. My overall concerns as to the evidence of the applicant and his mother, together with the delay in raising the claims results in me not being satisfied, however, that the applicant faces a real chance of serious harm arising out of, or in relation to, any such dispute. I do not accept and am not satisfied that, among other things, the land dispute will motivate the applicant's uncle to use the applicant's past convictions against the applicant or his family, or that the applicant's uncle will act in any way that would involve the applicant facing a real chance of serious harm.
Pro-Khalistan actual or imputed political opinion
Punjab has historically experienced violence, notably linked to the Khalistan separatist movement in the 1980s, but this type of unrest is now rare. A small overseas Sikh population supports the Khalistan separatist movement, but this does not reflect the broader Sikh community in India. The Khalistan movement, advocating for an independent Sikh state, has largely been suppressed within India, though low-level tensions persist. Most Punjabis regard the movement as more relevant to the Sikh diaspora abroad than local politics. Violence occasionally flares, such as during protests or following the arrest of separatist leaders. Certain organisations linked to Khalistan, such as Sikhs for Justice, are banned under India’s Unlawful Activities (Prevention) Act.[91] A small overseas-based Sikh population advocates for a separate Khalistan state.[92]
[91] 2023 DFAT Report, [4.29].
[92] 2023 DFAT Report, [3.62].
Sikh communities in Punjab are both victims and, occasionally, perpetrators of violence. For example, two lynchings in 2019 were linked to alleged blasphemy against Sikhism’s holy book. However, the country information also indicates that such incidents are infrequent. Moreover, Punjab’s political climate has generally remained peaceful, including the 2022 state elections, which saw minimal violence.
The 2021 farmers’ protests against agricultural reforms were a prominent example of large-scale political activism, predominantly peaceful but occasionally marred by violence.[93] Disputes over resources, such as water, are politically sensitive but do not typically result in violence or systemic discrimination. Overall, participants in Punjab’s political processes face a low risk of societal or official violence, though isolated incidents remain possible.[94] Political violence appears infrequent.
[93] 2023 DFAT Report, [3.99].
[94] 2023 DFAT Report, [3.102].
At the hearing, the applicant claimed that whilst he is not a member of the Khalistan movement, '[he] believe[s] in all that stuff' and referred to people who talk about Khalistan being put into jail. I indicated to the applicant that country information suggested that the Indian authorities do not automatically consider Sikhs pro-Khalistan.
The applicant has not claimed involvement in any pro-Khalistan movements or events in Australia. Moreover, with regard to the information material before me, I am not satisfied that there is a real chance that the applicant would be identified or imputed to be a member of a pro-Khalistan movement or that he would be considered to have or be imputed to have a political opinion in favour of an independent Khalistan state such that he would be of adverse interest to the Indian authorities. I am not satisfied that the applicant faces a real chance of harm based on his actual or imputed political opinion supporting Khalistan.
Cumulative consideration
It is expressly claimed that the combination of the applicant's claims results in the applicant facing a real chance of serious harm in his hometown of Mohali and throughout India.[95]
[95] Written submissions dated 29 October 2024 [15].
Considering my findings above, I have also considered the applicant’s claims cumulatively. I am, in all the circumstances, not satisfied that the applicant would face a real chance of serious harm when attempting to re-establish himself. I am not satisfied that a cumulative consideration of the applicant's claims leads to the applicant facing anything more than a remote chance of serious harm whether now, or in the reasonably foreseeable future. Having considered the applicant's claims cumulatively, I am not satisfied that he faces a real chance of serious harm on a cumulative assessment of his claims.
Conclusion on whether the applicant ahs a well-founded fear of persecution
For the above reasons, I am not satisfied the applicant has a well-founded fear of persecution within the meaning of s 5J(1) of the Act or that the applicant is a refugee within the meaning of the Act.
I find the applicant does not satisfy the refugee criterion in s 36(2)(a) of the Act.
DOES THE APPLICANT SATISFY THE COMPLEMENTARY PROTECTION CRITERION?
To satisfy s 36(2)(aa) of the Act, there must be substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that they will suffer significant harm.[96]
[96] Migration Act 1958 (Cth), s 36(2)(aa); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[97] Where claims overlap, I am permitted to refer to and rely on my relevant findings when considering the refugee criterion under s 36(2)(a) when assessing whether the applicant satisfied s 36(2)(aa).[98]
[97] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 [246] (Lander and Gordon JJ), [296] (Besanko and Jagot JJ), [342] (Flick J).
[98] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [27] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) and the authorities there cited.
In view of the above, I find that the applicant does not face a real risk of significant harm. Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal from Australia to India, there is a real risk that he will suffer significant harm.
I am not satisfied that the applicant will face a real risk of significant harm for any other reason, including on a cumulative consideration of the claims raised.
For the above reasons, I find the applicant does not satisfy the complementary protection criterion in s 36(2)(aa) of the Act.
CONCLUSION
The applicant is not a person in respect of whom Australia has protection obligations under the refugee criterion in s 36(2)(a).
I have also considered the alternative criterion in s 36(2)(aa) and find that the applicant is not 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) based on 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).
The decision under review should be affirmed.
DECISION
The Tribunal affirms the decision under review.
Date of hearing:
22 November 2024
Representative for the Applicant:
Ms A M Battison
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