Tribunal: Member Paul Windsor

The Department of Immigration and Border Protection (the Department) refused to grant the applicants protection visas on 2 September 2016. The applicants, a wife and husband from India, applied for protection visas on the basis that the wife feared harm from the Shiromani Akali Dal (SAD), a powerful ruling party of Punjab. She claimed to have previously donated money to the party but stopped after witnessing the leaders of the party taking bribes. Following this, the party started bothering her and demanding that she pay a huge amount of money. She claimed there were a number of ensuing issues and she was very afraid of the corrupt leaders and very concerned for her family.

A Protection visa may be granted if the applicant can satisfy one of two criteria.[1] The first is called the ‘refugee criterion’ and broadly requires the applicant to have a ‘well-founded fear of persecution’.[2] The second is called ‘complementary protection’ grounds and broadly requires the applicant to have ‘a real risk of significant harm’.[3]

The AAT did not find the applicant to be a credible witness. It found her evidence to be vague, confused and unconvincing and her oral evidence contradicted key elements of her written statement that accompanied the application for the visa. It did not accept that she provided a true account of her experiences.

The AAT pointed to inconsistencies in the applicant’s evidence about her central claim concerning donations. In her written statement, the applicant stated she stopped supporting SAD with donations following a recent visit to India where she saw SAD leaders taking bribes. However, at the AAT hearing, she indicated that she ceased her donations before she arrived in Australia and that she had not returned to India since. When the AAT put this inconsistency to the applicant, she claimed that she must have made a mistake in her application and that what she really meant was that ‘in India people take bribes wherever you go’. The AAT did not find this to be a satisfactory explanation for how she could have made such a significant and fundamental error in her written statement. Further, the AAT found her explanations of how much and how often she donated money to the SAD were vague and unconvincing, and her responses to its questions non-spontaneous and evasive.

The AAT asked the applicant why she did not seek to raise with the Minister any concerns that she might suffer harm from SAD officials if she had to return to India during an earlier visa matter in August 2015. The AAT did not accept the applicant’s explanation at the hearing that at the time she was not aware of how to do this or the importance of raising this issue. The AAT considered that if she had a genuine fear for her safety she would have raised this in her submission at that time.

The AAT also referred to Department of Foreign Affairs and Trade (DFAT) Thematic Report on Punjab[4] to find that SAD was no longer the ‘dominant political leaders in Punjab’ and did not accept that as a primarily Sikh-based regional party SAD had political links that enabled them to target and harm opponents in Punjab and throughout India, with impunity.

For these reasons, the AAT found that there was not a real chance that the applicants would face persecution involving serious harm from SAD officials, members and/or supporters, or anyone else if they returned to India now or in the reasonably foreseeable future. The AAT also found that there was not a real risk that the applicants would suffer significant harm if removed from Australia to India.

The AAT affirmed the Department’s decision not to grant Protection visas to the applicants.

Read the full decision on AustLII.

 

[1] Section 36(2) of the Migration Act 1958

[2] Section 36(2)(a) and section 5H for the meaning of a refugee under the Migration Act 1958

[3] Section 36(2)(aa) and section 36(2A) for the meaning of significant harm under the Migration Act 1958

[4] The AAT referred to the DFAT Thematic Report on Punjab dated 7 December 2016 at paragraphs 37 and 38 of the full decision.