1416266 (Refugee)

[2015] AATA 3978

1416266 (Refugee) [2015] AATA 3978 (9 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1416266

COUNTRY OF REFERENCE:                  India

MEMBER:Amanda Paxton

DATE:9 December 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 09 December 2015 at 8:49am

CATCHWORDS

Refugee – Protection visa – India – Federal Circuit Court appeal – Political opinion – Student Federation of India party member – Threats and harm from opposition party members – Did not attend hearing – Decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 912R, 91S, 499

Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

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 applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of India applied for the visa on 20 November 2013 and the delegate refused to grant the visa on 26 August 2014.

3. On 2 November 2015 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 8 December 2015. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice. No response was received.  On 1 December 2015 and 7 December 2015 the applicant was sent SMS reminders of the hearing to the phone number provided in the application. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. He has not since contacted the Tribunal to explain his non-attendance. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   RELEVANT LAW

4. 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.

   Refugee criterion

5. 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).

6. 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.

7. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

8. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

9. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

10. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

11. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

12. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

13. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

14. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

15. 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’).

16. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or 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.

17. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

18. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken into account 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Summary of claims

19. The applicant’s claims as presented in his application can be summarised as follows.

20. The applicant, who is now [age], was born in [Shimla], India and arrived in Australia in July 2009. In 2003, the applicant was admitted into [a] College. He was interested in politics and joined the Student Federation of India (SFI) party. At the time of student elections there were big riots between two political groups. In these riots, the opposite group tried to chase the applicant many times because he was a famous member of the party. At one time the opposite group beat him badly but he was lucky and escaped from them. The applicant then decided to leave India and came to Australia on a student visa. If he goes back, he may lose his life, and his family will also come into trouble. Because, the opposite group is very powerful they can bribe the police and they have a good hold in politics as well.

21. The applicant appeared before the Departmental delegate in May 2014 and provided the following additional information:

    ·     He was a student at [a] College, Punjab from 1999 to 2003 - 04;

    ·     While he did not have an official position, he was respected member of the SFI party;

    ·     The political groups fought each other because politics in India involves fighting among the different parties;

    ·     In 2003, when the opposition party wanted him to join their party and he refused, they beat him with an iron rod and as a result he had to have stiches in his head and his wrist was broken. These sorts of attacks usually happened in the run-up to elections;

    ·     The applicant reported the incident to the police, but does he not have evidence of this report;

    ·     The applicant was not the subject of any further issues before his departure in 2009;

    ·     In 2013, the applicant spoke with his brother in Delhi who warned him that elections were due to occur and that he should not return because people were still looking for him.

    Country of reference

22. On the basis of the copy of the applicant’s Indian passport provided to the Department, the Tribunal finds that the applicant is a citizen 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 applicant is not excluded from Australia’s protection by subsection 36(3) of the Act. As the Tribunal has found that the applicant is a national of India, the Tribunal also finds that India is the applicant’s ‘receiving country’ for the purposes of s.36(2)(aa).

    Assessment of claims

23. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

24. The applicant’s claims are very vague and lack detail. Had the applicant attended a hearing, the Tribunal would have explored his claims with him and sought further information from him on a range of details relevant to his stated claims.

25. The applicant’s failure to attend the hearing when requested to do so however meant the Tribunal has not been able to explore his claims with him or have the ability to seek further information about the basis on which he has sought protection.

26. The Tribunal has significant concerns regarding the claims of the applicant. Had the applicant attended the hearing, the Tribunal would have questioned him about his involvement, role and activities in the SFI party in his college. The Tribunal would have sought further detail about the nature of the political parties the applicant had mentioned and, in particular, the claimed beating from the opposition party in 2003 because he refused to join their party. The Tribunal would have sought information from the applicant about how his involvement in student politics in 2003 -04 would lead to a real chance of serious harm or real risk of significant harm in the reasonably foreseeable future, given the long period of time that has now passed. The Tribunal would also have made enquiries about the applicant’s claim that he fears, based on a report from his brother, that the opposition group continues to look for him and that his life would be in danger if he were to return to India in the future. As the applicant did not attend the hearing, the Tribunal was not able to make enquiries to obtain more information these vague and limited claims.

27. The applicant has also claimed that he reported this incident of violence to the police. Had the applicant attended the hearing, the Tribunal would have questioned him about the response of the police to his complaint. The Tribunal would also have sought further information about the applicant’s claims with regard to the power of the opposition group to bribe police and use political influence.

28. The applicant has claimed that he fears that his family may also experience trouble if he returns. The Tribunal would have sought information about the applicant’s concerns for his family had the applicant attended a hearing.

29. The Tribunal notes that it is also legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347). Had the applicant attended the hearing, the Tribunal would have asked the applicant about his migration history. In his application, the applicant stated he arrived in Australia in July 2009. The Tribunal notes that the applicant did not apply for protection until November 2013. This is a significant delay, and the Tribunal is very concerned about it, considering that had the applicant a fear of harm of return to India he would have lodged his protection visa far earlier than the eventual date. The applicant has not attended the hearing to explain this delay.

30. Based on the very vague and limited evidence before it, the Tribunal does not accept that the applicant fears harm if he returns to India from the opposition student political party or anyone else. In addition to their vague nature, the applicant has not taken the opportunity to elaborate his claims at a hearing. The Tribunal considers this strongly indicates that there is no basis for the applicant’s claimed fears.

31. The Tribunal finds that the applicant does not face a real chance of serious harm for any reason in the reasonably foreseeable future. The applicant’s fear of persecution is not well-founded.

32. For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant faces serious harm from opposition political groups or anyone else if he returns to his home in India, now or in the reasonably foreseeable future. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court 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 refugee definition. It follows that the Tribunal is not satisfied 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 the applicant will suffer significant harm.

    CONCLUSION

33. 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).

34. 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).

35. 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

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

    Amanda Paxton
    Member