1412260 (Refugee)

[2015] AATA 3171

1412260 (Refugee) [2015] AATA 3171 (1 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1412260

COUNTRY OF REFERENCE:                  India

MEMBER:Michelle Grau

DATE:1 July 2015

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 01 July 2015 at 11:28am

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431(2) 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 applicant, who claims to be a citizen of India, applied to the Department of Immigration for the grant of a Protection (Class XA) visa [in] November 2013 and the delegate refused to grant the visa [in] June 2014 under s.65 of the Migration Act 1958 (the Act).visa. The applicant lodged an application for review on 14 July 2014 with this tribunal, which was constituted on 25 March 2015.

2. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. The relevant law is set out at attachment A.

3. The applicant appeared before the Tribunal on 17 June 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. According to his application, the applicant is a Sikh (Schedule caste) from the Punjab, who speaks, reads and writes Hindi, Punjabi and English.  He completed secondary school and two years of college in India. He arrived in Australia [in] May 2008 as a student.

5. He claimed he and his family had many religious, caste and class problems in India because he belonged to a very poor family and because of his religion and schedule caste. The general caste people created hard conditions for him and they were jealous that he was good at sports and study and they hated his religion. He claimed he was attacked by a group of boys from the general caste and he was admitted to hospital for more than a month because of head injury.  After that he was sent to another place and the same boys attacked his family and they want to kill him.

6. A year after he came to Australia general caste people killed their religious lord [Mr A].  His family and caste and religious people had to leave the house and conditions were bad for his caste as the general caste fought with them.

7. The general caste community hate his religion and think he is inferior and he does not have religious or social freedom and they force them to join their religion.

8. They continue to threaten his family that they will kill him and are attacking his family. He has been getting calls from unknown numbers and they make him feel scared and unsafe.  He is worried about his family and if he returns they will kill him.

9. The tribunal discussed the applicant’s claims at hearing. He also confirmed at hearing he arrived in Australia on a student visa in 2008, has worked as a [occupation] in Australia and completed [a course], had his student visa refused by the department and by the Migration Review Tribunal (MRT), and after a successful appeal to the Federal Court, was refused again by the MRT in 2013. He confirmed he changed college and there was a gap in his study. He confirmed he completed high school and [a] diploma in India.

10. He confirmed his parents and [sibling] lived in India in the family home, which was owned; his father owned his own [business]. His [sibling] was studying in college and another [sibling] was married living in [another country] and [another sibling] was studying in [another country].

    FINDINGS AND REASONS

11. The issue in this case is case is whether the applicant faces a real chance of serious harm for a Convention reason in India; and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the India, there is a real risk that he will suffer significant harm. 

12. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of reference - India

13. In his protection visa application, the applicant claims that he is an Indian citizen by birth; does not hold citizenship or nationality of any other country and does not have a right to enter and reside, temporarily or permanently, in any other country. The applicant provided a copy of his Indian passport.The tribunal finds the applicant is outside his home country of India. Having considered all the evidence before it, the tribunal is satisfied that the applicant is a national of India and of no other country.  The tribunal has assessed the applicant’s claims against his country of nationality, namely India. On the evidence before it, the tribunal is satisfied that the applicant is not excluded from Australia’s protection by s.36(3) of the Act.

14. The Tribunal accepts that ‘applicants for refugee status face particular problems of proof as an applicant may not be able to support his or her statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule.’  The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status). However, the Handbook also states:

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

15. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220). However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, see Randhawa v MILGEA (1994) 52 FCR 437.

16. The tribunal is mindful too that whenever evidence is received in a language other than the applicant’s first language or through an interpreter there is always room for differences in meaning and nuance. The applicant said he wanted to conduct the hearing in English and it was evident he had good English and understanding. However, the tribunal was also careful to inform the applicant to use the interpreter as required. The applicant used the interpreter in the hearing from time to time and the tribunal ensured it put adverse information, s424AA information and clarifications of adverse evidence through the interpreter to be sure the applicant understood.  Each time the applicant confirmed he understood. The tribunal considers the applicant was able to communicate effectively, understood the tribunal proceedings and participated in a meaningful way and the standard of interpreting at the hearing was reasonable and competent.

    2001 attack and ongoing threats because of caste and religion

17. The applicant claimed he feared return because of caste problems and religion and they should be considered together. He claimed when he was in high school he was threatened and hit on the forehead by a group of boys who did not like his religion or caste.  It occurred in 2001 or 2002. It was reported to the principal and teachers and they told them to stop fighting.  The same people threatened him some times at the market but he was not physically harmed after 2001 incident.  He claimed he was threatened on his mobile phone a five to six times after coming to Australia, the first time being 3 or 4 months after he arrived and the last time was last year, possibly in September.

18. The applicant’s evidence about the 2001 attack was vague and changed during the hearing. For instance, at the outset he claimed it was reported to teachers and the principal. However, much later in the hearing, he claimed his mother reported it to police but they did not do anything. Further, at first he claimed he was in hospital for a day receiving stitches to his head, then when the tribunal noted he had claimed in his written application he was in hospital for a month, he agreed he was in hospital for a month. Later he changed his evidence and said it was a few days, then said it was a few weeks. When tribunal concerns were expressed about his changing account, he claimed he was unconscious for a month. When the tribunal expressed doubt he was unconscious for a month, he changed his evidence saying he was unconscious for a few weeks. Again he changed his evidence saying he was not aware of what was happening and scared for a few weeks. 

19. The tribunal accepts that the claimed incident happened some time ago but it does not accept that key aspects of how long he spent in hospital would be forgotten, particularly given there is a big difference between being kept in for a day to a month. Further, the tribunal does not accept he was unconscious for a month as this would have been a serious problem.  Further, the tribunal does not accept that if the matter was reported to police that he would forget to mention that and only mention, after tribunal prompting, that teachers were told.  The tribunal considers the applicant was making up the story as he went along and was adding to and changing his account in response to tribunal concerns about the inconsistencies in his account.

20. Further, the applicant’s account of the ongoing threats was vague and lacked details. The applicant was very hesitant in recalling when, even approximately, he was threatened or how often he was threatened.  It took the tribunal some time to establish when the first call was made and even longer for him to estimate when the second call was made. While he claimed the first call was 3 or 4 months after he arrived in Australia, he did not recall when the other calls were made, other than the next one was  long time after and the last one was last year. While the tribunal does not expect specific recall of dates, given the core of his claim is fear of harm and threats, it is odd that the applicant had such little recall of when, even approximately, they occurred.

21. Further, his evidence was not consistent with his interview and delegate’s decision which suggested that he only received the calls for two years when he arrived. Further, while at hearing he claimed the attackers did not threaten or speak to his mother, at interview (in delegate’s decision) he claimed the attackers told his mother and [sibling] that they would kill him. [1]  The applicant said it was all true and he missed some things and forgot them, was confused because of fear and it had all happened a long time ago in 2001.   The tribunal accepts memory may fade over time but the tribunal considers the threats of harm were the core of his claim and it is reasonable that one might recall the core of his claim. Further, his claims were not complex or multiple and should have been more easily recalled consistently.

    [1] Put pursuant to s S424AA procedure

22. Further, he changed his evidence about whether he recognised the caller or not. At first he said the callers were unknown, then he said he recognised them, then said he did not recognise the voice but knew they were the same people.  When asked why he knew they were the same people, he added they were in local politics. The tribunal expressed doubt given he had not mentioned anything about them being in politics but had claimed they did not like his religion or caste and were at school. The applicant added they were followers of another Guru who was in a political party. The tribunal considers the applicant’s responses about how he knew the callers were the same changed and were doubts were expressed he added another story about them being linked politically which still did not explain how he knew they were the same people phoning him.

23. Further, the applicant’s claim he did not answer unknown calls on his number was at odds with the fact that he continued to take 5 or 6 calls from unknown calls.

24. The tribunal also discussed with the applicant’s its concerns that he would wait six years to lodge a protection visa application if he claimed he left India in fear of his life and to avoid harm. The applicant claimed he was told to finish his studies first and he did not know about protection visas. The tribunal does not accept this explanation as the applicant is an educated young man, who has lived in Australia since 2008 and navigated the immigration system throughout that time, lodging student visa application, two review tribunal applications and a Federal court application, sometimes on his own and sometimes with the advice of a migration agent. The tribunal does not accept he would not have been aware of the protection visa avenue. The tribunal considers his delay in applying is indicative of a lack of fear and casts further doubt on his credibility.

25. Having considered the applicant’s claims of attack and threats and his evidence about his caste and religion (discussed below), the tribunal finds the applicant is not a witness of truth. The tribunal does not accept that he or his family were attacked or threatened by boys or continues to be threatened or anyone because of his religion or caste or for any reason. The tribunal does not accept that anyone has threatened him or his family. The tribunal finds he has fabricated those claims.

    Caste and religion

26. The applicant claimed he was from a backward scheduled caste, was a Sikh who followed [Mr A], who [died] and faced problems because of his caste and religion.

27. When asked at hearing what caste he belonged to the applicant hesitated and said the backward caste. The tribunal spent some time asking him which caste it was. The applicant hesitated and was non responsive or kept repeating the backward caste. The tribunal expressed doubt that he belonged to a backward caste if he could not name the caste he belonged to. The applicant said it was on the backward caste certificate. The tribunal asked him again to name the caste identified on the certificate. The applicant could not. When concerns were expressed, he said he could write it but not say it. The tribunal asked him to write the name of the caste. The applicant hesitated and wrote “[caste]”. The tribunal noted the certificate he had previously provided on file said it was “[another caste]”.  The applicant said they were similar and that is what he calls it. However, the tribunal finds his explanation unconvincing and considers the applicant was making up his story as he went along and had no idea of what caste he had said he belonged to.

28. The tribunal also expressed doubt about the authenticity of the certificate given its appearance and mistakes and his inability to name the caste he belonged to.  The certificate has a number of spelling mistakes in it, such as “office of Seat of the officer concerned” and “Signaturs” and “walfare leter”. The tribunal does not accept it is a genuine certificate and places no weight on the certificate. The tribunal finds the applicant has fabricated his claims of being from a backward scheduled caste.

29. Further, the tribunal does not accept the applicant is from a very poor family or backward caste or faced problems as a result as it was clear from his background that his siblings were educated to tertiary level, he and his [sibling] have been able to study overseas, his family have been able to finance those studies and had significant deposits, owned their own home as evidenced by material he submitted to the MRT in his student visa application in 2013.[2]  The applicant agreed his grandparents helped fund his study and his father did also as he had worked in [in another country] previously and saved money. Further, on his evidence his father had his own [business] and they owned their own home.

    [2] put pursuant to s424AA procedure – 2 deposits in excess of [amount] rupees,  one of [amount] with no loan, grandparent fund and property, father’s property

30. Having considered his evidence, the tribunal does not accept that the applicant is from a backward caste, or a poor family or that he has faced difficulties due to his caste or background. The tribunal finds the applicant has fabricated his claims in that regard.

31. Given the applicant’s tertiary education, family support, work experience and resourcefulness the tribunal does not accept he faces any harm in the future regarding his livelihood or access to services of social or religious freedom or that he faces a hard life or any serious harm.

    Religion

32. The applicant’s evidence also about his religion was vague, hesitant and not commensurate with someone who claimed to follow his religion and Guru. He did not know the current Guru, but only the one [who had died]. He had difficulty explaining what the core beliefs were and said only to do good deeds.  He had difficulty naming the particular Dera or sect, at first indicating it was [one] and then [another]. The tribunal noted if the Guru was [Mr A] then it was [a certain sect].[3]

    [3] [Information deleted].

33. His evidence changed frequently in the hearing. He claimed he did not follow the religion in Australia or anymore. At first he said he did not follow the religion anymore because he was in Australia. Then he said he did not follow it but his girlfriend was Muslim and sometimes he went with her. Then he said he also sometimes went to a Christian church. He then said his religion was Hindu and did not attend temple and he was not strong in religion. Then he said he stopped following the Guru after his [death]. He then said he believed but did not practice. When asked how he practiced before he left India, he said he went to a place to meditate. He had some difficulty naming where he went and after some time and hesitation said it was an ashram. When asked where it was he had again had difficulty specifying where it was or the name of it, other than it was not far. Eventually he said it was in the Punjab and when pressed for more detail, he said it was in [a named town]. 

34. Given the applicant’s lack of knowledge about the religion and his changing evidence throughout the hearing, the tribunal had serious concerns that the applicant followed [the religion] at all but has given him the benefit of the doubt.

35. However, the tribunal does not accept the applicant will practice [the religion] upon return as he has not followed it for many years and has not practiced or followed it. The tribunal does not accept he ceased following it out of fear or harm as his evidence about this changed significantly throughout the hearing and the tribunal finds he was making up his evidence as he went along. 

36. Further, while he claimed he could not practice or worship his religion, his evidence at hearing was that he practiced it by attending meditation at the ashram with his parents from time to time. The applicant also said his parents sometimes continue to practice but he is not sure as he does not talk about it with them.

1. The tribunal accepts that there were riots and violence [after] the Guru [died] and that his family stayed temporarily with his aunt to avoid them, as this is consistent with country information. The tribunal does not accept that staying with an aunt temporarily amounts to serious harm. Further, there has been no further violence since then and the family has continued to live and work in the same place without harm. The tribunal does not accept that the applicant was not able to practice religion in India or that he or his family was harmed.

2. Further looking to the future, the tribunal does not accept that he or his family faces a real chance of harm because of the applicant’s past practice of his religion or if his parents continue to practice it in the future.  There have been no further reports of violence with [followers] and supporters [since]. Further, the tribunal has found the applicant has not suffered harm in the past or been targeted. As well, India provides protection when violence occurs from time to time, such as during the [year] violence.[4]

   [4] [Information deleted].

3. Having considered the applicant’s evidence, the tribunal does not accept the applicant has been subjected to torture, attack, suffered serious injuries, been threatened with killing or any harm. The tribunal does not accept he has had a hard life or been deprived of religious or social freedom or that he is not allowed to practice his religion or forced to join another religion. The tribunal does not accept he is from a backward scheduled caste. The tribunal does not accept he or his family have suffered problems because of his religion, being very poor, or because of his caste. The tribunal does not accept the general caste or group of boys or anyone has attacked or threatened him or wants to kill him or that anyone has threatened his family.  On the evidence before it, the Tribunal does not accept that the applicant or his family has been subject to any harm in the past or that they face any harm in the future. The Tribunal does not accept the applicant’s claims in their entirety. The Tribunal does not accept that the applicant faces a real chance of persecution for any Convention reason.

4. After considering all the evidence the Tribunal does not accept that the applicant faces a real chance of serious harm in the reasonably foreseeable future in India. Therefore the Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for a Convention reason.

   Complementary protection

5. The Tribunal then considered whether there are 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 he will suffer significant harm.  For the reasons set out above and given the findings made above the tribunal does not accept the applicant  or his family was attacked or threatened or that  he had problems, a hard life, his life was at risk or  he had a lack of freedom or was unable to practice his religion. The tribunal does not accept he is from a backward caste or is very poor.  Given his tertiary education, family support, work experience and resourcefulness the tribunal does not accept he faces any harm in the future.  The tribunal does not accept that the applicant has suffered any harm in the past or that he will in the future. The tribunal is not satisfied the applicant faces a real risk of significant harm. 

6. On the evidence before it, the Tribunal is not satisfied, on the evidence before it, that there are 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 he will suffer significant harm.

   CONCLUSIONS

7. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

8. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

9. There is no suggestion that the applicant satisfies 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 applicant does not satisfy the criterion in s.36(2).

   DECISION

10. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Michelle Grau
    Member

    
    

    RELEVANT LAW - ATTACHMENT A

    The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Section 36(2)(a) 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 Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

    Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any 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.

    If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia 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 applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

    In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –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.