1414759 (Refugee) [2015] AATA 3192 (16 July 2015)

DECISION RECORD
DIVISION:	Migration & Refugee Division
CASE NUMBER:	1414759
COUNTRY OF REFERENCE:	India
MEMBER:	Susan Pinto
DATE:	16 July 2015
PLACE OF DECISION:	Sydney
DECISION:	The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 16 July 2015 at 2:31pm

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

statement of decision and reasons
application for review
1.	The applicants are a husband and wife who are citizens of India. They arrived in Australia [in] June 2010 and applied to the Department of Immigration and Citizenship for Protection visas [in] March 2011. The delegate decided to refuse to grant the visas [in] June 2011. The applicants lodged an application to the Refugee Review Tribunal (RRT) (differently constituted) on 21 July 2011. The RRT affirmed the delegate’s decision in December 2011. The applicants lodged an application to the Federal Court and the Full Federal Court, both of which upheld the RRT’s decision. The applicants lodged applications for Ministerial Intervention pursuant to s.417 of the Migration Act 1958 in September 2012 and January 2013, both of which were unsuccessful. 
2.	Following the decision in SZGIZ v Minister v Minister for Immigration and Citizenship (2013) 212 FCR 235 (see below), the applicants applied for Protection visas [in] July 2013. In both the first and second applications, the applicants claimed to fear harm in India due to their status as members of a lower caste, and because of the applicant’s work with the Congress Party and a dispute with a business employee. 
3.	The delegate of the Minister for Immigration refused to grant the visas [in] July 2014. The delegate was not satisfied that the applicants would face either serious or significant harm upon their return to India, when assessed under both the Refugees Convention and the Complementary Protection provisions. This is an application for review of the decision made by the delegate to refuse to grant the applicants those visas under s.65 of the (the Act). The delegate assessed the applicants against both the Refugees Convention and the Complementary Protection provisions. For the reasons discussed below, the Tribunal has assessed the applicants only against the Complementary Protection provisions.
RELEVANT LAW
4.	Section 48A imposes a bar on a non citizen making a further application for a Protection visa while in the Migration zone in circumstances where the non-citizen has made an application for a Protection visa which has been refused. In SZGIZ v MIAC [2013] FCAFC71, 3 July 2013, the Full Federal Court found that s.48A did not prevent a non-citizen who had made a valid application on the basis of the Refugee criterion in s.36(2)(a) from making a further application on the basis of the Complementary Protection provisions in s.36(2)(aa) whilst he or she remained in the migration zone. According to SZGIZ, a person who had previously applied for and been refused a Protection visa on the basis of one of the criterion in s.36(2) is eligible to lodge a further valid application on the basis of one of the other criterion. 
5.	As indicated above, the applicants have previously been refused Protection visas in Australia. However, the visa application under review is a valid application because the applicants are considered ‘SZGIZ-affected’ as they have not left Australia since the final determination of their previous Protection visa applications which preceded the Complementary Protection laws. As the applicants have previously had their claims for protection assessed under s.36(2)(a), the Tribunal must confine its consideration to whether they satisfy the requirements of s.36(2)(aa) and (c). 
6.	The Complementary Protection provisions (see attachment for the full text of these provisions) in s.36(2)(aa) essentially require that the applicant is a non citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer ‘significant harm’. Significant harm is defined in s.36(2A) of the Act to include that the non citizen will be arbitrarily deprived of his or her life; the death penalty will be carried out on the non-citizen; the non citizen will be subjected to cruel or inhuman treatment or punishment; or the non citizen will be subjected to degrading treatment or punishment. 'Cruel or inhuman treatment or punishment', 'degrading treatment or punishment', and 'torture', are further defined in s.5(1) of the Act.
7.	Subsections 36(2)(c) provides an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(aa) who holds a protection visa. Section 5(1) of the Act provides that one person is a 'member of the same family unit' as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.
Claims and evidence
First application 
8.	In their first protection visa application the first named applicant (hereafter referred to as the applicant) indicated that he was born in [Village 1] in Gujarat in [year].  He stated that his ethnicity is ‘Jetly’ and his religion is Hindu.  He claims to have lived at an address in [Village 1], from 2000 to June 2010.  He also claims to have received a total of [number] years of formal education in India, ending in May [year], and to have been employed as the owner of a [shop] in [Village 1].  He claims to be married and, besides his wife, lists two children as living in India.
9.	In an attached statement the applicant claimed that he was born into a lower caste family in [Gujarat].  He stated that there are only a few thousand members of this caste and it is regarded as being so unworthy as not to fall within the caste system.  Their main profession is cleaning latrines by hand, with very little pay.  They are not allowed to drink from the same wells or cups as those from upper castes, attend the same temples, walk through their neighbourhood or wear shoes in their presence.  They live in constant fear of being publicly humiliated, paraded naked, beaten and raped with impunity. He was the only educated person in his family and he had to leave school because of daily discrimination. 
10.	The applicant also claims that he supported the Congress Party because he believed it could prevent the discrimination he suffered.  He influenced others in his community to support the Party.  Because of this support he and others were constantly threatened by the opposition Bharatiya Janata Party (BJP).  Their women were gang raped and the local police did nothing because of the political connections and higher caste background of the perpetrators. He was attacked by the local BJP a number of times but the police did nothing when he complained.  When he sacked a member of staff from his [shop] for theft they made his life ‘measurable’. This person was from a higher caste and the local BJP members made a “big issue of it”.  They ransacked his business and threatened to kill him and his family members.  He tried to report the matter to the police but was threatened with an arrest warrant. The applicant stated that “In one stage it has escalated to caste warfare, and militia like vigilant groups have conducted raid in my home. This has conducted with the tacit approval of the local police.”
11.	The applicant was interviewed by the delegate of the Department in relation to the first application [in] June 2011.  He told the delegate that he was helped to prepare his Protection visa application by a friend. His passport contained expired visas for many [countries].He had a ‘continuous’ visa for [Country 2], valid to 2019, which he obtained for his work as a [occupation]. He told the delegate that he had attended exhibitions in [a city] in [Country 2] in February 2009, and in the other countries he had visited.  He was authorised to stay in [Country 2] for 90 days. He had not applied for protection while he was in [Country 2]. He had been living with a friend in [location] and the atmosphere was dangerous. This was because ‘African people’ were normally drunk and engaged in criminal activity. The applicant also told the delegate that the main reason he left India was because he had problems with his business partner. The partnership had existed for 14 or 15 years and they were very close.  He handed over the work of the business to his partner as he did not have sufficient time to devote to it, but found the partner gradually took over the whole business.  As a result of this, the applicant was economically disadvantaged.’  He confirmed his claim to belong to a lower caste and to fear harm because of his support for the Congress Party. The applicant told the delegate that his partner was from a higher caste and he could do nothing about it because the partner was very powerful.  He could not begin a new business because he was financially ruined. When asked how he was able to own a successful business if his claims about his Jetly caste were accurate he said his friends had helped him, allowing him to purchase equipment. When asked if he had ever experienced harm because of his caste had said he had not and the only issue was that he had to leave his business and nobody supported him. 
12.	The applicant also told the delegate that he was a member of Congress and helped many people in his village in various ways.  He had held the position of President of Congress in his [village]. In this job he spread the message of the party and told people that Congress is a good party and would work for people if they voted for it. The applicant claimed that it was natural for the rival party to dislike him as a member of Congress and this would cause them to harm him.  When asked why he would be targeted among other Congress members or supporters he said he had carried the Congress banner when attending demonstrations and other events, working all day for the Party. When asked about the claimed attacks by BJP he said this referred to the attack on his [business] in November or December 2008. The applicant also told the delegate that he had applied for a visa for Australia to make money so that he could return to India and settle down easily. When the delegate advised him that this indicated he did not have a well founded fear of persecution in India the applicant agreed, but stated that he had no money to start a new business in India or provide for the education of his children.  
13.	As indicated above, the applicants lodged an application to the Refugee Review Tribunal (differently constituted).  Although the applicants were invited to appear before the Tribunal at a hearing to be held on 6 December 2011, they failed to attend. 
Current application
14.	When lodging the current application, the applicant repeated his claims to be from a low caste of Jetly’s. The applicant also stated that he faced harm from the BJP because he supported the Congress party. The applicant also stated that he ran a [business] and he “sacked one of the employees” who came from a higher caste. He stated that the person attacked him and he fears harm from that person if he returns to India. The applicant also stated that he fears harm due to his caste background; his political opinion supporting the Congress party; the problems he had in his business with his former employee; and because he stayed in Australia for a considerable period of time he will be perceived as someone with wealth. 
15.	The applicant attended an interview with the delegate [in] July 2014. The applicant’s claims are summarised in the delegate’s decision record. The Tribunal has listened to the CD Rom of the interview and is satisfied that it is an accurate record. The applicant claimed that he was being threatened by [Mr A] and his “gang”. The applicant told the delegate that [Mr A] is an ex-employee and he was stealing money from the business. The applicant “fired” [Mr A] who then wanted revenge. The applicant also claimed that [Mr A] had relationships with politicians who were supporting him. He also referred to his work for Congress, but when asked about his political involvement he had difficulty saying more than that he “did a few good things for Congress”. The applicant also said he held the position of President and helped students get scholarship forms and helped widows in the village. He also helped the poor by distributing money, allocating accommodation and helping women fill in forms. The applicant did not mention his claims to fear harm as a result of his caste, until reminded by the delegate that he had also claimed to fear harm because he is “lower caste”. 
Application for review
16.	Following the lodgement of the application to the Tribunal, the representative provided a submission in which it was submitted that the effect of SZGIZ is that the Tribunal is required to consider both the Refugees Convention and the Complementary Protection provisions. 
17.	The applicants appeared before the Tribunal on 10 June 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages. The relevant evidence is summarised below. 
18.	Following the hearing, the Tribunal wrote to the applicants pursuant to s.424A. The Tribunal invited the applicant to comment or respond on various inconsistencies in their evidence to the Department and the Tribunal. The applicants did not respond to the Tribunal’s s.424A letter. 
ASSESSMENT OF Claims and evidence
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, that there is a real risk that they will suffer significant harm?
19.	The Tribunal has considered the applicants claims to fear significant harm in India. Having considered all of the evidence, the Tribunal does not accept that the applicants are credible witnesses. The Tribunal considers that they have manufactured all of their claims to fear harm in India. The Tribunal’s assessment of the evidence and its reasons for reaching these conclusions follows. 
20.	The Tribunal firstly considers that the applicant’s claims regarding his own and his wife’s education and employment are indicative of their poor credibility and their attempts to establish that they are from a low caste and have been denied opportunities as a result. Thus, although the applicant indicated on the application form that he and his wife have 10 years education, and he confirmed when asked during the hearing that he had 10 years of education and his wife also had 10 years of education, he then stated that his wife was previously employed as a [professional] in India. When asked how she became a [professional] given she had only 10 years of education, the applicant then stated that his wife has a [Degree] from [a certain university]. When advised that she must have completed High School, the applicant agreed and then stated that she studied for 10 to 15 years and it is not true that she had completed only 10 years of education. The applicant also told the Tribunal that he completed Year 12 and his earlier claims to have completed only 10 years of education are untrue. 
21.	The Tribunal considers that the evidence in relation to the applicant and his wife’s education has altered between different applications and he has shown a willingness to alter his evidence in relation to this issue when he considers it convenient. Additionally, the Tribunal does not accept that the applicant’s wife gave truthful evidence in relation to her employment. In response to the Tribunal’s queries in relation to her employment in India, the applicant’s wife stated that they have to do the same jobs as the lower castes and these include cleaning jobs. When asked what her job was in India, she stated that she had to clean up and “do the toilets”. In response to the Tribunal’s comments that her husband had said she has a [degree] and is a [professional], she stated that when she works at her parent’s house she was a [professional], but in her husband’s home she had to work as a cleaner.
22.	The Tribunal does not accept that the applicant’s wife was employed as a cleaner in India and does not accept her explanation for the inconsistencies in the evidence in relation to this issue. The Tribunal considers it evident that the applicant and his wife have attempted to portray themselves as uneducated people in an attempt to establish that they are from a lower caste. Additionally, as discussed with the applicant during the hearing and in a post hearing s.424A letter, the evidence before the Tribunal indicates that “Jetly” which can be spelt in various ways, is a surname from India and its surrounding regions and is a Saraswat Brahmin surname and is part of Panjatias (five subcastes) and they are found in several parts of India, including the Punjab. The Panjiatias are the highest order of Brahmins in the Punjab and notable people include Arun Jaitley (an Indian politician); Celina Jaitly (Bollywood actress); Arun Jaitly (Astrologer); B.R. Jaitely, Former Special Correspondent, the Indian Express, and Jetley Ranjit Lal and Raijan Jetley, the CEO of Air India and India Tourism Development Corporation. In response to this information, the applicant stated that the Jetly caste is a lower caste and is a scheduled caste. When the Tribunal advised the applicant that it had referred to a list of the scheduled castes in Gujarat and Jetly is not on the list, the applicant then stated that it falls within Hindu Brahmin and it is a large community in the north. After reviewing the information during the hearing, the Tribunal commented that it has found no information to substantiate his claim to be lower caste or scheduled caste and that his family’s circumstances, including that his wife is university educated and his father was a government employee, do not indicate that they are members of a scheduled caste. The applicant stated that in his caste there are many people who are [professionals] and government employees. When asked if he has any evidence to support his claim that he is from the scheduled caste or the lower caste, the applicant stated that he can only give examples, but he can provide proof from the government and can obtain a certificate from the Panchayat. The applicant stated that he has changed the surname himself and his father’s name is [deleted] and he is from The Parmar caste. The Tribunal advised the applicant that it cannot find a record of the Parmar caste as being a scheduled caste. 
23.	The Tribunal does not accept that the independent evidence supports the applicants’ claims to be members of a scheduled caste or lower caste. In addition to the above, the applicant also appeared to forget his claims about his caste during the Department interview and it was only when he was reminded about this issue that he appeared to remember this claim. When asked during the hearing why he had to be reminded during the interview about this claim, the applicant stated whatever questions he was asked he “just replied to” and when he was reminded about this he then discussed it. The Tribunal does not accept that the applicant was only responding to questions and would somehow neglect to provide details of one of the main aspects of his claims regarding their caste. The Tribunal considers that this is indicative of the fact that he and his wife have fabricated their claims. 
24.	Furthermore, when the Tribunal asked the applicant’s wife about her caste during the hearing, she stated that they were “Brahmin” and confirmed that she is a member of the Brahmin caste which is the highest caste until interrupted by the applicant at which time she claimed to be from the Jetly caste which she then stated is a low caste. When the Tribunal commented that the Brahmin caste is the highest caste, the applicant’s wife stated that the Jetly caste is the lowest caste within the Brahmin caste. The Tribunal considers that the applicant’s wife’s evidence during the hearing indicates that their claims to have been from a lower caste have been fabricated and that they are, in fact, from the Brahmin caste which, although comprised of varying hierarchies, is one of the higher castes in India.
25.	Having considered the applicants’ claims in relation to their caste, the Tribunal does not accept that the Jetly caste is a lower caste and does not accept that the applicants have experienced any discrimination or harm as a result of their caste. The Tribunal does not accept, therefore, that they have had to undertake menial employment or they or their children have been denied any educational or employment opportunities in India due to their caste. Nor does the Tribunal accept that the applicant had to leave school due to “daily discrimination”. 
26.	The Tribunal also does not accept the applicant’s claims regarding his dispute with a person from a higher caste. When asked during the hearing why he came to Australia and sought protection, the applicant stated that he had some “competition problems” and there was a competition between his [business] and another [business] in the village. The applicant stated there were many competitions and quarrels and they broke things in the [business] in 2008. As a result, the applicant’s business closed down.  The applicant then stated that in his village the upper caste people were jealous that he was getting more business than him and it was due to his caste and the fact that his business was more profitable than him. When asked why he would suffer harm due to this incident that occurred seven years ago, the applicant stated that if he opens his business anywhere else they will come and break things. The applicant confirmed that the business closed in 2008 and that he had a dispute with [Mr B] who had a [business] in the same village. When asked whether he had any other difficulties, the applicant stated that he did not. When asked where this person is now the applicant stated that they are still in the village operating a [business]. The applicant stated that the person’s business was [details deleted]. The Tribunal advised the applicant that he has made different claims in the past as to who he feared harm. The Tribunal advised the applicant that he has previously claimed to have sacked a former employee from a higher caste. The applicant was also advised that when he was interviewed by the Department in June 2011 he referred to his “business partner” who was [Mr B], but during the hearing he has referred to a business rival, rather than a “partner” and in the most recent application he has claimed it was a staff member. In response, the applicant then stated that a staff member had committed a theft and he has responded to whatever questions he has been asked. 
27.	The Tribunal does not accept that the applicant has given truthful evidence in relation to his claims to fear harm from a former employee, or a business partner in his village with whom he had a dispute. The Tribunal considers has not accepted the applicant’s claims to have been from a different caste and considers that the confused and inconsistent nature of the evidence in relation to this issue is indicative of the fact that these claims have been fabricated. 
28.	As indicated above, the applicant has previously made claims to have been active in Congress and to have been sought by members of the BJP and that his business partner was involved with the BJP. However, when asked a number of times why he feared harm in India, the applicant did not refer to this claim or to any involvement with political parties in India. Additionally, when asked why they fear harm upon return to India, the applicant’s wife did not refer to this claim. The Tribunal also advised the applicant during the hearing that it has doubts in relation to his claims in relation to his political involvement. In the most recent application he had made claims regarding his involvement with Congress, but he has not made any claims during the hearing in relation to this issue. The applicant again stated that he has responded to whatever questions he was asked. 
29.	The Tribunal does not accept that the applicant or his wife would fail to mention claims relating to the applicant’s political involvement if he genuinely feared harm in relation to this issue. The Tribunal does not accept that the applicant was ever sought by the BJP or that he was ever involved with the Congress party in any capacity. The Tribunal further considers that the applicant’s travel to [Country 2], where he did not seek protection, is inconsistent with his claims to have experienced harm in India at that time and to have feared harm from persons associated with the BJP. As indicated above, the applicant’s current passport contains visas for other countries and indicates he travelled to [Country 2] in 2009. When asked during the hearing why he did not seek protection in [Country 3] or [Country 2], the applicant stated that he had friends in [Country 3], but nobody gives money and he could only get work in the restaurants and they make them work and do not pay them. When asked why he would not seek protection in [Country 2] and instead return to India, the applicant stated that he worked for a month in [location] in a [store]. He did not stay there because he was afraid of “African people who would come drunk”. When advised that his return to India twice does not indicate he had any fear of harm in India, the applicant stated that it was very difficult for him to stay in India. 
30.	As raised with the applicant during the hearing, the Tribunal considers that the applicant and his wife have fabricated their claims in an attempt to remain in Australia. The Tribunal does not accept his explanation for failing to seek to remain in [Country 3] or [Country 2] if he genuinely feared harm in India. The Tribunal also does not accept that the applicant and his wife have experienced any harm because of his political involvement or because he is a lower caste. The Tribunal is not satisfied, having not accepted that or his wife are members of a lower caste that he or his wife will experience significant harm for this reason. Nor has the Tribunal accepted that the applicant was involved with the Congress party or he was sought by persons associated with the BJP. The Tribunal is not satisfied that he or his wife will experience significant harm for this reason upon his return to India. The Tribunal also does not accept that the applicant had a dispute with a former employee, or a business partner and is not satisfied that there is a real risk he will suffer significant harm for this reason upon his return to India. 
31.	The applicant told the Tribunal during the hearing that he fears if he returns to India he will no longer have a home or land because he sold his home and land before he left India and he will have no money to educate his children or begin a new business. He has also claimed, as indicated above, that he will be targeted because he will be considered to have money and wealth due to the fact that he and his wife have lived in Australia for some time. During the hearing, the Tribunal commented that his wife is educated and queried why she would not be able to return to India and work as a [profession]. The applicant stated that she worked as a [profession] in [an organisation] and she did not receive a salary, she only received donations. The Tribunal accepts that the applicant and his wife will have difficulty readjusting to life in India upon their return. However, the Tribunal does not accept that they will be unable to re-establish themselves and obtain housing and employment upon their return. Nor is the Tribunal satisfied that there is a real risk that they be targeted or suffer significant harm as a result of their extended presence and employment in Australia or any perception of wealth. 
32.	Thus, having considered all of the evidence, the Tribunal is not satisfied, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, that there is a real risk that they will suffer significant harm. Accordingly, the Tribunal is not satisfied that there is a real risk that the applicants will be arbitrarily deprived of their life; the death penalty will be carried out; or the applicants will be subjected to cruel or inhuman treatment or punishment; or the applicants will be subjected to degrading treatment or punishment. The Tribunal finds, therefore, that the applicants do not satisfy the criterion set out in s.36(2)(aa).
33.	The Tribunal also finds that the applicants do not meet the criteria in relation to the requirements that other members of the same family unit are holding protection visas. The Tribunal finds, therefore, that the applicant does not meet s.36(2)(c). 
34.	As the applicants do not satisfy the criteria for a Protection visa, they cannot be granted the visa.
decision
35.	The Tribunal affirms the decision not to grant the applicants Protection visas.

Susan Pinto
Member

ATTACHMENT A - relevant law
36.	In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied.  The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations.  Subsection 36(2) of the Act provides that:
(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 under the Refugees Convention as amended by the Refugees Protocol; 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.
Complementary protection criterion
37.	An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out above.  A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’.  The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.
Ministerial direction
38.	In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘PAM3: Refugee and humanitarian - Complementary Protection Guidelines’ and ‘PAM3: Refugee and humanitarian - Refugee Law Guidelines’ - and any country information assessment 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. In this matter, the relevant report is the Department of Foreign Affairs and Trade Country Information Report, India, 14 July 2015.