1411133 (Refugee)

[2015] AATA 3138

1411133 (Refugee) [2015] AATA 3138 (7 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1411133

COUNTRY OF REFERENCE:                  India

MEMBER:Chris Thwaites

DATE:7 July 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 07 July 2015 at 2:54pm

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. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of India, applied for the visas [in] February 2014 and the delegate refused to grant the visas [in] June 2014.

3. On 23 June 2014 the applicants applied to the Tribunal for review of that decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The Tribunal has before it the Department’s file relating to the applicants’ protection visa application and the Tribunal’s file relating to the review application. The Tribunal has also had regard to the copy of the delegate’s decision record and the written statement by first named applicant dated 20 April 2015 provided to the Tribunal by the representative.

5. According to the decision record the first named applicant arrived in Australia [in] July 2008 on a subclass 572 visa. The first named applicant was unlawful in Australia between [January] 2010 and [September] 2010. She has travelled back to India on two occasions, once in 2010 and once in 2012. The second named applicant arrived in Australia [in] November 2008 on a subclass 572 visa and travelled back to India on three occasions, once in 2010, and twice in 2012. The second named applicant was unlawful in Australia between [December] 2012 and [February] 2014.

6. The first and second named applicants applied for protection visas [in] February 2014. The representative’s submission which accompanied the visa application form states the applicants have individual claims for protection and also a joint claim on the basis of being a member of the family unit of each other’s family. The submission also attached various news items relating to honour killings in India. The applicants both completed a Part C Application for an applicant who wishes to submit their own claims for protection forms. The first named applicant’s form does not contain any reasons for claiming protection and refers to an attached statement. The second named applicant’s form states the authorities are corrupt and biased against women and refers to an attached statement.

7. The first named applicant provided a written statement dated 31 January 2014 to the Department as an attachment to her visa application forms. In summary the first named applicant outlines the background of her relationship with the second named applicant and their decision to get married. She claims her family in India were annoyed with her as they wanted her to marry someone who belongs to the Sikh religion, and according to her father, that is someone who should not cut his hair and tie a turban. The second named applicant cuts his hair and does not wear a turban. He is also younger than the first named applicant. The first named applicant states her family threatened her that if she married the second named applicant they will kill her, and both her parent threatened they will kill the second named applicant. When the first named applicant told her family about her marriage her father told her she was not part of their family and he will make sure whenever she comes to India he will kill her. Her mother has also given the same response, and her [siblings] are very angry with her and the second named applicant. The first named applicant states she is aware the second named applicant has told his family about the marriage and his father is very angry because the first named applicant is older and they had already chosen a girl for the second named applicant. His father has threatened to harm him and now the first named applicant is scared her in-laws and her own family are against her marriage and both families want to harm them if they return to India.

8. The second named applicant provided a written statement dated 31 January 2014 to the Department as an attachment to his visa application forms. In summary the second named applicant outlines the background to his relationship with the first named applicant and their decision to get married. He claims his family got upset with him when he told them about the first named applicant as they had already fixed his marriage with someone else. When he told the first named applicant about his family’s reaction she told him her family did not support the marriage because they wanted her to marry someone who belongs to the Sikh religion, someone who should not cut his hairs and ties a turban, and because the second named applicant was younger. When the second named applicant tried to explain his love for the first named applicant to his father, his father got annoyed and told him if they marry he will not get any property and will not be allowed to enter his father’s home and his name will be cut from his father’s will. He was threatened if he comes to India he will make sure he will no more be alive. When the second named applicant told his father about the marriage he got very angry and said he did not wish to talk anymore and will delete the second named applicant’s name from his will and threatened if he comes to India he will kill him and his wife, the first named applicant. His mother was also not happy and she also doesn’t want to have any relation with him. The second named applicant states he is scared as he has been threatened by his family and his in-laws and that both families will harm them if they go back to India.

9. On 22 April 2015 the Tribunal received a further written statement from the first named applicant dated 20 April 2015. During the hearing the first named applicant confirmed that a number of the points in her statement addressed issues raised in the delegates decision. The statement states:

   1.It is submitted that after I received death threats from my parents, I called to either my [sibling] or to my mother once a month mainly to request my [sibling] to put pressure on my mother or to convince my mother to respect me as an individual. Generally mothers are softer than fathers and can pacify or control the situation. I desperately expected that but this did not happen in my case.

   2.The Delegate of The Minister made an error in arriving at conclusion that statement by my father that I am not part of her family any more means they got nothing to do with me therefore they will not harm me. However it should be noted that my father is not a rational person. If he is I will not be under any threat. His statement only shows his hate for me and shows that I am under threat and my life is at risk.

   3.According to my father's belief. If you cut hair once you cannot be a Sikh in your life.

   4.In Indian culture boys age should be more than the girl. This is also cause of the problem. Even though main issue is hair cut by my husband.

   5.It is submitted that I get confused with the dates; however events and threats are real. It is normal for someone with threat to life being confused.

   6.It is submitted that I was hopeful that threat will go away and everything will be fine. It took lot of time to sink in my head that threat is real and my life is at risk. Last thing you can expect threat to your life from your parents.

   7.Relocation to any other part of India is not an option as if detected, death is certain. Within India people can move freely and there are numerous examples of people traveling to other states to commit serious crimes such as murder.

   8.It is submitted that there is no effective state protection. India is a failed country. Justice and protection hardly exists in that country. India could not punish the people who were responsible for genocide in 1984, killing thousands of Sikhs. In 1992, thousands of Muslims were killed in state of Gujarat. It should be noted that current Prime Minister of India was Chief Minister of that state. Our case is small one. No one will care if I am dead. Police will probably will be bribed and criminals will get away. My parents and parents of my husband knew that they can get away by bribing to someone makes me shiver down my spine.

10. The applicants appeared before the Tribunal on 28 April 2015 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent who attended the hearing. During the hearing the first named applicant confirmed she was currently pregnant and felt well enough to proceed with the hearing.

11. During the hearing the Tribunal discussed with the applicants their backgrounds, family composition, education and employment histories, as well as how they met and the development of their relationship and the reasons they fear returning to India. The first named applicant told the Tribunal she fears returning to India because her parents and her in-laws are against her marriage. She told the Tribunal her husband is younger and does not wear a turban and shaves his beard, and that her parents are very strict Sikhs and expected her to marry according to their will. She told the Tribunal her parents threatened that they will kill her and that she is no longer part of their family, and that her [siblings] say the same things. She told the Tribunal she thinks that because her family has been saying these things for a long time, and a long time has passed since all this has happened and still they are not happy to accept the relationship, if she returns to India she thinks they can do what they are saying. She told the Tribunal India is a very big country and it is very easy to kill a person. The second named applicant told the Tribunal he fears going back to India because his father has big contacts and he will find them and their lives will be in danger. He told the Tribunal his father had threatened that if he returns to India he will kill him, wherever he lives in India he will find him and kill him.

12. During the hearing the Tribunal discussed with the applicants the concerns raised in delegate’s decision record as well as the issue of relocation. At the conclusion of the hearing the Tribunal granted the applicants 14 days in which to provide any further information in support of their application, including country information in relation to the ability to trace people using information corruptly obtained from telephone companies, as discussed during the hearing.

13. On 8 May 2015 the Tribunal received a number of documents from the representative. The covering email from the representative states:

    1.The Constitution of India does not patently grant the fundamental right to privacy – by noted Supreme Court advocate;

    2.About 34% of Indian politicians are criminal. In a country where such a high number of politicians are criminal, protection of vulnerable person such as my clients is impossible;

    3.Indian politicians think rape is sometimes OK. With such mentality of politicians, my client is at risk.

    FINDINGS AND REASONS

    Nationality

14. On the basis of the applicants’ Indian passports, which were presented at the hearing, the Tribunal finds that the applicants are citizens of India. There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than India. Therefore the Tribunal finds that the applicants are not excluded from Australia’s protection by subsection 36(3) of the Act. As the Tribunal has found that the applicants are nationals of India, the Tribunal also finds that India is the applicants “receiving country” for the purposes of s.36(2)(aa).

    Credibility

15. As noted above, during the hearing the Tribunal discussed with the applicants their backgrounds, family composition, education and employment histories, as well as how they met and the development of their relationship. The applicants provided generally consistent evidence to that previously provided to the Department and to their written statements. While there were a number of small discrepancies and the second named applicant was quite vague in relation to dates, the Tribunal is satisfied this occurred due to the stress of giving evidence and the vagaries of memory. The Tribunal discussed with the applicants the concerns raised by the delegate in the decision record and is satisfied with their responses. While the Tribunal does have some concerns the applicants have exaggerated some of their claims or fears in order to support their application, the Tribunal has decided to give them the benefit of the doubt and accepts they have told the truth in relation to their claims that their families have threatened them and no longer have contact with them due to their relationship and marriage.

    Do the applicants have a well-founded fear of being persecuted in India?

16. On the basis of the evidence before it, the Tribunal accepts the applicants met in Australia and were married [in] September 2013. The Tribunal accepts as evidence of this the consistent oral evidence of the applicants as well as the copy of their marriage certificate provided to the Department.

17. The Tribunal accepts the first named applicant’s parents object to her relationship with the second named applicant because he is younger than her and does not wear a turban and cuts his hair, and therefore they do not regard him as a Sikh. The Tribunal accepts the first named applicant married the second named applicant without her parents’ consent and that they have told her that she is no longer part of their family and threatened her that if she and her husband come back to India they will kill them.  The Tribunal accepts the first named applicant’s oral evidence that these threats were made on the telephone when she told her parents about her relationship and marriage to the second named applicant and for a few months after her marriage. The Tribunal accepts the last conversation the first named applicant had with her parents occurred in January 2014, and since that time, whenever the first named applicant has tried to call, they hang up once they hear her voice. The Tribunal accepts the first named applicant’s oral evidence that the last time she called her parents was three or four months prior to the hearing and at that time her mother answered the telephone and then hung up. The Tribunal accepts the first named applicant’s oral evidence that her parents have not tried to contact her and that she has never spoken to the second named applicant’s family.

18. The Tribunal accepts the second named applicant’s parents object to his relationship with the first named applicant because they had already arranged for him to marry another girl, and his father’s prestige was injured when he married someone else without their permission. The Tribunal accepts the second named applicant’s father has threatened the second named applicant that if he ever returns to their village in India he will find him and kill him, and that his mother and [sibling] can’t go against his father. The Tribunal accepts the second named applicant’s father told the second named applicant he will not get any property and will be cut from his will. The Tribunal accepts the second named applicant’s oral evidence that these threats were made on the telephone and his last conversation with his parents occurred three or four days after his marriage to the first named applicant and at that time he was told “if you come back to India I will kill him”, and “don’t contact us” and “we don’t want to talk to you anymore”. The Tribunal accepts the second named applicant spoke to his [siblings] two or three times in October 2013 but they couldn’t help. The Tribunal accepts the second named applicant’s oral evidence that in December 2013 he realised his parents were not going to change their minds, and that he has only tried to contact them once since that time, in December 2014, and the telephone was hung up once they heard his voice. The Tribunal accepts the second named applicant’s oral evidence that his parents have not tried to contact him and that he has never spoken to the first named applicant’s family

    Relocation

19. During the hearing the Tribunal discussed with the applicants whether they could relocate away from their parents and the threatened harm if they returned to India. The Tribunal noted and accepts the applicants’ evidence that they both completed year 12 in India and both speak, read and write Punjabi and English. The Tribunal finds on the basis of the first named applicant’s oral evidence that she has completed [courses] in Australia and is currently studying a [further course], and has worked as a [occupation] and in [a certain] industry and as [other occupations].  The Tribunal finds on the basis of the second named applicant’s oral evidence that he completed a [course] in Australia and has worked as [occupations]. The Tribunal finds on the basis of their oral evidence that the applicants have lived in a number of homes together in [an Australian city] and that the second named applicant has also lived in [other Australian cities].

20. During the hearing the Tribunal noted that India was a big country with a large population and that people could move locations and live anywhere they chose. Given their level of education and languages, as well as their work experience and experience living in cities away from their home villages, the Tribunal questioned whether the applicants could relocate to a large city in India, such as New Delhi, Chennai or Mumbai, cities with large populations, away from their families and the threatened harm.

21. In response the first named applicant agreed that India is a big country and people are free to live anywhere. She told the Tribunal that because India is such a big country if someone kills someone no one knows who has done that. The first named applicant told the Tribunal in 1984 so many people were killed in India and no one has been punished, and in 1992 many Muslims were killed and the Chief Minister of that State is now the current Prime Minister.

22. The Tribunal discussed with the applicants the chance of the harm happening to them given the large population in India. The Tribunal noted the applicants had not had any conversations with their families for well over a year and questioned if their families would even know if the applicants returned to India. In response the first named applicant told the Tribunal that in India it is very easy to find another person’s whereabouts and if someone wants they can get a person’s contact details through the bank. The Tribunal noted India has a population of 1.25 billion people[1] and the Tribunal was not aware of any country information that suggests people can be found or traced using bank records. The Tribunal also noted country information indicates there are many banks in India. In response the first named applicant told the Tribunal if someone lodges a visa application in Australia, sometimes officers call banks to get the details of that person, so that can happen in India, where a persons can bribe someone with 10,000 or 20,000 rupees to get someone’s details.

    [1]India population, 2015, >

    The Tribunal raised the questions: how would the applicants’ families know the applicants where in India, given the applicants no longer have any contact with them; and if their families found out the applicants were in India, how would they know what bank to talk to or who to bribe to find out where they were. In response the first named applicant told the Tribunal it would not be a very big issue for them, they could hire someone or give money to someone to find their whereabouts.

1. The first named applicant told the Tribunal it has been over a year since she got married and they still haven’t accepted the marriage, and once they know they are back in India they can easily find them. When questioned how the families would know they had returned to India, the first named applicant told the Tribunal that while they are not in contact with their families, her family may be in contact with someone who does know them and they may try to find out about them. The Tribunal noted the earlier oral evidence that the applicants’ families had not tried to contact them. On further questioning the first named applicant suggested that while her family may not want to contact her, maybe they are contacting her friends circle and are trying to find out from them where they are and what they are doing. When questioned if the applicants have any knowledge that that is what they are doing, the first named applicant told the Tribunal she has no knowledge about that, but in the past, when she had a good relationship with her parents, they would sometimes call her friends to check on her when she was not answering her telephone, and maybe they are still doing that. When asked if her friends had told her that, the first named applicant told the Tribunal, no, because she does not have much contact with her old friends.

2. The second named applicant told the Tribunal that while India is a very big country, if his parents know they have returned, through common friends, then they may be able to find them through information from the mobile telephone companies. The second named applicant told the Tribunal that he and his wife would have mobile telephone in India, and that there is not many mobile telephone companies in India, and it’s very easy to give them 2000 or 5000 rupees to find out about a person. The Tribunal noted it was not aware of any country information to indicate that people could be located in India in this way. The first named applicant told the Tribunal if you give a mobile number to a company they will give you all that persons details, their name and address. The Tribunal raised its concern that this appeared to be a very unusual corporate practice and noted the delegate considered this in the decision record. In response the first named applicant told the Tribunal that in India this is very normal and where there is corruption anything is possible. She told the Tribunal the representative has provided information about this to the Department. The Tribunal noted the information provided by the representative to the Department was in relation to honour killings, and the Tribunal was not aware of any country information that indicated it was easy to trace someone in India by bribing telephone companies for their records. The second named applicant told the Tribunal that when buying a SIM card in India it is usually required to provide identification to the shop keeper and they can then misuse this information.

3. At the conclusion of the hearing the representative made an oral submission that India is one of the top ten corrupt countries in the world and the Supreme Court of India has raised its concern about human rights and privacy. The representative submitted that privacy laws in India are almost non-existent and there are not many mobile telephone companies in India, less than ten, and if you want to track someone all you have to do is visit one of their offices and bribe and get the information. The representative agreed to provide country information on this within 14 days. 

4. The Tribunal has taken into account the documents provided by the representative on 8 May 2015 which included copies of an internet article from The Independent Friday 8 May 2015 with the headline Indian Politician says of rape “Sometimes it’s right, sometimes it’s wrong”; an internet article form the ibtimes.co dated 19 May 2015 with the headline “186 Indian members of Parliament have criminal cases including murder and rape”; an article from HuffingtonPost dated 4 April 2014 with the headline “Corruption – An epidemic of Epic scale in India”; an article on corruption from CFR Backgrounders; an article from Perry4Law titled Data Protection Laws in India and Privacy Rights in India; and a 2011 article by Vijay Pal Dalmia of Vaish Associates Advocates, on Data Protection Laws in India.

5. The Tribunal accepts that country information indicates there is corruption in India and politicians have been named and quoted in the media in relation to crimes and attitudes towards rape. The Tribunal also accepts the article from Perry4Law indicates India does not have data protection and privacy rights like those in the United States Health Insurance Portability and Accountability Act of 1996. The Tribunal notes that both the Perry4Law article and the article by Vijay Pal Dalmia indicate that while the Constitution of India does not grant a fundamental right to privacy, the courts have read those rights into existing fundamental rights and laws. Both articles look at the current situation in India in relation to privacy laws and data protection and the Tribunal notes that neither article cites corrupt access to data or personal information from either banks or telephone companies. As noted in the hearing the Tribunal is not aware of any country information that indicates families can trace people in India by obtaining information from banks or telephone companies through bribes.

6. The Tribunal has taken into consideration the various news items relating to honour killings provided to the Department by the representative. While the Tribunal accepts that honour killings continue to take place in India, the Tribunal also notes none of the articles provided indicated victims of honour killing were traced or located using information corruptly obtained from banks or mobile telephone companies. Many of the articles indicated the victims were located in their family’s homes or living with relatives or were lured back to their family’s villages.

7. The applicants have not claimed that they would need to or would seek to contact their families if they returned to India.  As noted above the applicants have had no conversations with their families for over a year. The Tribunal is not satisfied the applicants would initiate any contact with their families in the future.

8. On the evidence before it the Tribunal finds the applicants’ parents do not want to have anything to do with the applicants, have no interest in contacting them, and are not looking for them.

9. The Tribunal finds on the evidence before it that the harm faced by the applicants is localised to their families villages and surrounding areas.  On the evidence before it, the Tribunal does not accept that in a country the size of India with a population in excess of 1.25 billion[2], if the applicants moved away from their families villages and surrounding areas, such as to New Delhi or Chennai or Mumbai, there would be a real chance they would come into contact with their families now or in the reasonably foreseeable future. 

   [2]  India population, 2015, Accessed 29 April 2015

10. The Tribunal has considered the first named applicant’s oral evidence that her parents may be in contact with her old friends, and the second named applicant’s oral evidence that his family may find out they have returned to India through common friends. The Tribunal notes the first named applicant told the Tribunal she has no knowledge her parents are in contact with her old friends, and that she does not have much contact with her old friends, and the Tribunal notes her evidence of the contact between her family and old friends was from the past when she had a good relationship with her parents. The Tribunal found the second named applicant’s concerns in relation to common friends vague and unpersuasive. On the evidence before it the Tribunal considers the claims that the applicants families would find out the applicants had returned to India through old friends, or common friends, highly speculative. On the evidence before it the Tribunal finds that the chance the applicants’ return to India would be reported to their families by old friends or common friends is less than remote.

11. The Tribunal has taken into consideration the first named applicant’s oral evidence that their families could hire someone to find them, or find them through bank records, or the second named applicant’s oral evidence that his family may find them through mobile telephone company records.  The Tribunal notes that if their families were unaware of their return, given they had not had a conversation with their families in India for over a year, there would be no reason for their families to even contemplate looking for them or hiring someone to try to find them.  The Tribunal does not accept on the evidence before it that the applicants’ families would look for the applicants or hire someone to find them. Nor does the Tribunal accept that the applicants families could locate them by obtaining bank records or telephone company records through bribery.

12. The Tribunal finds that given the vast population of India and the length of time the applicants have been outside the country, there is less than a remote chance either of the applicants would come into contact with and be recognised by anyone who would contact their families. The Tribunal finds on the evidence before it that the applicants could return to India and relocate to an area away from their families and the threatened harm.

13. Therefore the Tribunal finds there is not a real chance the applicants will suffer serious harm if they relocated to an area in India away from their families’ villages and surrounding areas.

14. As found above, the applicants have both completed year 12 in India and both speak, read and write Punjabi and English. They have undertaken further education and the first named applicant has [tertiary qualifications], and has work experience as a [occupation], in [a certain] industry, as [other occupations]. The second named applicant has completed a [qualification] and has worked as [occupations]. They have both lived in a number of different rental properties in [an Australian city] and the second named applicant has also lived in [other Australian cities]. The applicants have made no claims they would be unable to find employment or shelter in India or that they would be unable to subsist in India.

15. The Tribunal finds on the evidence before it that the applicants would be able to find employment and accommodation if they returned to India and moved to a location away from their families’ villages and surrounding areas.

16. The Tribunal has found that there is not a real chance the applicants would come into contact with their families or suffer serious harm if they moved to a location away from their families’ villages and surrounding area. The Tribunal finds on the evidence before it that in all the circumstances it would be reasonable, in the sense of practicable, for the applicants to relocate to an area in India away from their families’ villages and surrounding area.

17. The Tribunal does not accept the representative’s post hearing email submission that the proportion of criminal politicians in India means protection of the applicants is impossible, or that politicians’ attitude to rape means there is a real chance either applicant will suffer serious harm.

18. As the Tribunal has found that there is not a real chance the applicants would come into contact with their families or suffer serious harm, if they relocated away from their families’ villages and surrounding area, and that it would be reasonable for them to do so, the Tribunal finds that the applicants’ fear of persecution is not well-founded. 

19. Having considered the applicants’ circumstances individually and cumulatively, for the reasons set out above, the Tribunal is not satisfied that the first named applicant or the second named applicant has a well-founded fear of persecution for a Convention reason if they were to return to India now or in the reasonably foreseeable future, and therefore they do not meet the criterion in s.36(2)(a).

    Complementary protection

20. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).

21. As noted above, the Tribunal finds the harm faced by the applicants is localised to their families’ villages and surrounding areas, and that it would be reasonable, in the sense of practicable, for the applicants to relocate to an area in India away from their families’ villages and surrounding area.

22. The Tribunal does not accept the representative’s post hearing email submission that the proportion of criminal politicians in India means protection of the applicants is impossible, or that politicians’ attitude to rape means there is a real risk either applicant will suffer significant harm.

23. The Tribunal finds there is not a real risk the applicants will suffer significant harmed, if they returned to India and relocated to an area away from their families’ villages and surrounding areas. For the reasons noted above the Tribunal is not satisfied there is a real risk the applicants would come into contact with their families now or in the reasonably foreseeable future if they returned to India and relocated to an area away from their families’ villages and surrounding areas. The Tribunal finds it would be reasonable for the applicants to relocate to an area of the country where there would not be a real risk that they will suffer significant harm.

24. Therefore the Tribunal finds that pursuant to s.36(2B)(a), there is not a real risk that the applicants will suffer significant harm in India.

25. It follows that the Tribunal is not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of their removal from Australia to a receiving country, there is a real risk the applicants will suffer significant harm.

    CONCLUSION

26. The Tribunal is not satisfied the first named applicant, or the second named applicant, is a person in respect of whom Australia has protection obligations. Therefore the applicants does not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa.

27. There is no suggestion that the applicants satisfy s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criterion in s.36(2).

    DECISION

28. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Chris Thwaites
    Member  7 July 2015

    ATTACHMENT A - RELEVANT LAW

29. 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; 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.’

    Refugee criterion

30. Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’.  Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments.

31. Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a person who:

    ‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.’

32. The time at which this definition must be satisfied is the date of the decision on the application: Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288.

33. The definition contains four key elements.  First, the applicant must be outside his or her country of nationality.  Secondly, the applicant must fear ‘persecution’.  Subsection 91R(1) of the Act states that, in order to come within the definition in Article 1A(2), the persecution which a person fears must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.  Subsection 91R(2) states that ‘serious harm’ includes a reference to any of the following:

    (a)a threat to the person’s life or liberty;

    (b)significant physical harassment of the person;

    (c)significant physical ill-treatment of the person;

    (d)significant economic hardship that threatens the person’s capacity to subsist;

    (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

34. In requiring that ‘persecution’ must involve ‘systematic and discriminatory conduct’ subsection 91R(1) reflects observations made by the Australian courts to the effect that the notion of persecution involves selective harassment of a person as an individual or as a member of a group subjected to such harassment (Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason CJ at 388, McHugh J at 429). Justice McHugh went on to observe in Chan, at 430, that it was not a necessary element of the concept of ‘persecution’ that an individual be the victim of a series of acts:

    ‘A single act of oppression may suffice.  As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is “being persecuted” for the purposes of the Convention.’

35. ‘Systematic conduct’ is used in this context not in the sense of methodical or organised conduct but rather in the sense of conduct that is not random but deliberate, premeditated or intentional, such that it can be described as selective harassment which discriminates against the person concerned for a Convention reason: see Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [89] - [100] per McHugh J (dissenting on other grounds). The Australian courts have also observed that, in order to constitute ‘persecution’ for the purposes of the Convention, the threat of harm to a person:

    ‘need not be the product of any policy of the government of the person’s country of nationality.  It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution’ (per McHugh J in Chan at 430; see also Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 per Brennan CJ at 233, McHugh J at 258)

1. Thirdly, the applicant must fear persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’.  Subsection 91R(1) of the Act provides that Article 1A(2) does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless ‘that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution’.  It should be remembered, however, that, as the Australian courts have observed, persons may be persecuted for attributes they are perceived to have or opinions or beliefs they are perceived to hold, irrespective of whether they actually possess those attributes or hold those opinions or beliefs: see Chan per Mason CJ at 390, Gaudron J at 416, McHugh J at 433; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570-571 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.

2. Fourthly, the applicant must have a ‘well-founded’ fear of persecution for one of the Convention reasons.  Dawson J said in Chan at 396 that this element contains both a subjective and an objective requirement:

   ‘There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear.  Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear.’

3. A fear will be ‘well-founded’ if there is a ‘real chance’ that the person will be persecuted for one of the Convention reasons if he or she returns to his or her country of nationality: Chan per Mason CJ at 389, Dawson J at 398, Toohey J at 407, McHugh J at 429.  A fear will be ‘well-founded’ in this sense even though the possibility of the persecution occurring is well below 50 per cent but:

   ‘no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution.  A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’ (see Guo, referred to above, at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ)

   Complementary protection criterion

4. 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.  The Full Court of the Federal Court has held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the context of the Refugees Convention as referred to above (see Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [246] per Lander and Gordon JJ with whom Besanko and Jagot JJ (at [297]) and Flick J (at [342]) agreed). ‘Significant harm’ for the purposes of the complementary protection criterion is exhaustively defined in subsection 36(2A) of the Act: see subsection 5(1) of the Act. 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.