Protection refusal overturned for Indian man who identified uncle’s killer
Irrational to conclude man was not at risk of persecution in India, court hears
The judge said it was ‘strange’ the tribunal concluded the man was not at risk. File photograph: Chris Maddaloni/Collins
A High Court judge has overturned a refusal of protection for an Indian man who claimed he was at serious risk of persecution in India from a man whom he identified to police as having murdered his uncle.
Ms Justice Tara Burns said the International Protection Appeals Tribunal, in refusing protection, failed to have regard to the significance of its own findings, including that a criminally motivated assailant had murdered the man’s uncle to take possession of property which the man is now entitled to and that the assailant was correctly identified by the man as the murderer.
Given those findings, it was “strange” the tribunal concluded he was not at serious risk of harm or persecution from the assailant if deported, she said.
On that basis, she overturned the deportation order.
She rejected another ground of challenge, that the tribunal erred in rejecting the man’s claim of a well-founded fear of persecution from wider society in India due to his being gay.
The tribunal was entitled to have regard to information including a change of law arising from a judgment of the Indian Supreme Court which decriminalised homosexual acts, she said.
Earlier, outlining the background, the judge noted the man asserted, as a young boy, he left his family and village in 2006 to work for his uncle who had a clothing shop. He married and his parents and wife moved in 2013 to be with him.
As his uncle had no children, he bequeathed his shop to him, with the effect he would inherit it on his uncle’s death. His uncle became involved with another man in a dispute about the shop, and an adjacent shop the uncle also owned. The dispute arose from the other man producing false documents asserting his ownership of the shop and ultimately lead to an altercation outside the shop during which the uncle was fatally stabbed.
The applicant, who was in the shop at the time, did not witness the incident but was informed immediately about it by an eye witness who later went into hiding. His uncle, as he was dying, also informed him who had stabbed him.
The applicant went to the police who would not pursue the case due to unavailability of the eye witness, the judge said. The assailant had threatened everyone “to keep quiet”.
In various findings, the tribunal accepted he had an uncle who owned a clothes shop, which the applicant would inherit, and that his uncle had been murdered by the named assailant.
The judge said the tribunal’s view that the applicant did not provide details of threats made to him by the assailant was “difficult to understand” having regard to the content of his protection interview. The tribunal’s decision the assailant and associates would not have travelled the “arduous” journey to the applicant’s home village to threaten him was also “somewhat strange” given the applicant had told the police the assailant was his uncle’s murderer.
The tribunal appeared to have lost sight of the fact the most serious allegations had been made against the assailant. It was also “far from incredible” the applicant would have fled India to escape the assailant.
These and other important issues exposed an irrationality and failure to have regard to the tribunal’s own significant findings, including that the assailant was correctly identified as the perpetrator of the murder of the applicant’s uncle. It was irrational, given the findings, to conclude the applicant was not at risk of persecution or serious harm from the assailant.