1416665 (Refugee)

[2016] AATA 3322

1416665 (Refugee) [2016] AATA 3322 (18 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1416665

COUNTRY OF REFERENCE:                  India

MEMBER:Penelope Hunter

DATE:18 February 2016

PLACE OF DECISION:  Sydney

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

Statement made on 18 February 2016 at 2:48pm

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 (the 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] January 2014. [Name], is the primary applicant. [Name], the secondary applicant is his daughter. In summary the applicants sought protection as they are Sikh from Jammu and Kashmir and fear being killed by the Hindu dominated Indian government or by Kashmiri terrorists.

3. The applicants were invited to attend an interview with the delegate of the Department [in] September 2014 and did not attend. The delegate refused to grant the visas [in] September 2014 and notified the applicants.

4. The applicants lodged an application for review with the Tribunal on 7 October 2014. Other than a copy of the delegate’s decision they did not provide any supplementary information with the review application, nor did they set out the grounds for the application.

5. On 8 October 2015 a letter was sent to the primary and secondary applicant’s at their nominated address inviting them to appear before the Tribunal and give oral evidence and present arguments at a hearing on 5 November 2015.

6. Neither applicant attended the hearing on 5 November 2015.

7. On 11 November 2015, the Tribunal sent to the applicants a Notification of an Intention to Dismiss the Application.

8. On 30 November 2015, the Tribunal received a request for reinstatement from a migration agent on behalf of the applicants, together with an authority, on the basis that applicants wished “to have another opportunity to present arguments and submissions.”

9. On 2 December 2015 the Tribunal determined to reinstate the application.

10. On 4 December 2015 a letter was sent to the primary and secondary applicants, via their authorised migration agent, inviting them to appear before the Tribunal at a hearing on 18 February 2016. The applicants were advised that if they did not attend the scheduled hearing and the postponement was not granted, that the Tribunal may make a decision in their case without further notice. The agent for the applicants was further requested by letter on 4 December 2015, to provide the Tribunal with a written submission setting out all claims made and maintained by the applicants by 11 February 2016.

11. No further documents were received from the applicants or their agent in relation to the application for review.

12. An SMS reminder of the hearing was sent to the primary applicant on the mobile number he provided to the Tribunal on 11 February 2016 and again on 17 February 2016.

13. The applicants did not attend the hearing on 18 February 2016. They also failed to contact the Tribunal to seek the postponement of the hearing, or to provide any reason why they could not attend the scheduled time.

14. The Tribunal is satisfied that the invitation to attend the hearing was sent to the applicants and is also satisfied that the applicants were offered the opportunity to appear before the Tribunal but did not do so. In the circumstances, and pursuant to s. 426A of the Act, the Tribunal has decided to make a decision on review without taking further action to enable the applicants to appear before it.

    CLAIMS AND EVIDENCE

15. The Tribunal has before it the Department file, the information referred to in the delegate’s decision as well as a range of information from other sources.

16. The primary applicant was born on [date], [in] the state of Jammu and Kashmir. He claimed to be of the Sikh religion, to speak Punjabi and to read and write English and Punjabi. He arrived in Australia [in] October 2013 on subclass FA Visitor visa, travelling on an Indian passport issued [in] 2012. He is married, and including the secondary applicant, has [children]. His wife and his [other] children reside in India. The secondary applicant was born on [date]. The secondary applicant arrived in Australia on a subclass 571 student visa [in] July 2013.

17. Only the primary applicant provided any specific claims for protection which are summarised as follows;

    ·He left India in fear of being killed by Kashmiri terrorists, for 20 years they were facing attacks of Kashmiri militants. They left India to safeguard their lives.

    ·Close relatives were killed when terrorists attacked the village of [name]. They were living a life of terror. Kashmiri terrorists target Sikh families and the State government which is pro-Moslem does not help to protect minorities living in that state.

    ·The Indian government is playing a crucial role to snub Sikh minorities. Sikh’s are known as martial people and the Indian government does not like martial people. The situation in Jammu and Kashmir is worse for minorities. We have a fear of being killed either by Kashmiri militants or India’s Research and Analysis Wing.

    ·Kashmiri militants are fighting against the Indian government and Sikhs are considered to be pro-Kashmiri militants. The Indian government is against minorities in India. Minorities are deprived of human rights. He belonged to a minority group and fear being killed by the Hindu dominated Indian government or by Kashmiri terrorists.

    ·The Indian government is dominated by a Hindu majority and all decisions of the government favour the Hindu majority. His ancestors migrated from Pakistani in 1947 when India and Pakistan were divided. The Indian government labels Sikh families as refugee Sikhs. No authorities in the Indian government will help refugee Sikhs.

    RELEVANT LAW

18. 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

19. 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).

20. 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.

21. 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.

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

23. 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.

24. 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.

25. 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.

26. 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.

27. 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.

28. 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

29. 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’).

30. ‘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.

31. 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

32. 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. In particular the Tribunal has before it DFAT Country Report – China 3 March 2015. 

    ASSESSMENT OF CLAIMS AND FINDINGS

33. The applicants travelled to Australia on Indian passports. There is no evidence before the Tribunal that they were not genuine.  A copy of the relevant bio data pages of the primary applicant and the secondary applicant passports, issued [in] 2012 and [in] 2012 respectively, are contained in the Department file. In the absence evidence to the contrary, the Tribunal accepts that the applicants are nationals of India. The Tribunal has therefore assessed their claims against India as their country of nationality.

34. The applicants have declared in their Protection visa application that they do not hold citizenship of any other country. The primary applicant also declares that he does not have a right to reside in any other country. There is nothing before the Tribunal to suggest that the applicants are precluded from protection by the operation of s.36(3) of the Act.

35. Section 5AAA of the Act makes clear that it is the responsibility of an applicant to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The mere fact that a person claims fear of persecution or harm 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 reasons 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 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 details as necessary to enable the examiner to establish the relevant facts. A decision maker is not required to make the applicant’s case of him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

36. As the applicants did not attend the hearing the Tribunal did not have the opportunity to explore in detail their claims or obtain and particulars as to any genuine fears or past incidents of harm. The Tribunal finds that the applicants have provided very little detail regarding their claims for protection in the application forms. They have not referred to any specific incidents of harm rather relying on a general fear of harm on the basis that they are Sikhs from the state of Jammu and Kashmir.

37. There is no material before the Tribunal of anything happening to the primary or secondary applicant in the past. As to their family, the only incident that the primary applicant refers to  in the visa form is the killing of close relatives in the village of [name] by terrorists. The Tribunal therefore turned to country information. There are reports of the killing of [Sikhs], the attack has been widely blamed on the militant group Lashkar-e Toiba[1]. [Details deleted].”[2]This incident occurred almost [number] years ago. The village of [name] is in the [a district] which is over 200 kilometres north of the applicants’ [home].[3] In the absence of further information from the applicants, the Tribunal is not satisfied as to the genuineness of any claim in connection with this incident. Further the Tribunal is not aware of any information of any ongoing reprisals against Sikhs arising from this incident.

    [1] [Information deleted].

    [2] [Information deleted].

    [3] Google.com.au/maps

38. The country information indicates that armed militancy in Jammu and Kashmir has waned in the past several years. The South Asia Terrorism, in its India Assessment 2014, reported crucially that terrorism and insurgency related fatalities in India have dropped since 2001. It was further noted that the most dramatic drop has been in Jammu and Kashmir, from 4507 killed in 2001 to just 181 in 2013.[4] The Tribunal accepts that there is violence and insecurity in Kashmir, particularly along the Line of Control. Further, that clashes between militants and security forces continue to occur with some civilian casualties, and security forces have killed political protestors. There is no evidence before the Tribunal to suggest that the applicants have a profile or have been involved in activities that would make them a target for Kashmiri or other militants. The Tribunal is also not satisfied on the evidence that the applicants have been involved in protests or are politically involved in separatist movements that would make them targets of the security forces. The Tribunal accepts that there were 20 civilian deaths in Jammu and Kashmir in 2013 but this was in a population of over 12 million people.[5]  

    [4] South Asia Terrorism Portal, Jammu and Kashmir Assessment 2014, Indian Population Census 2011, ‘Jammu and Kashmir Population Data 2011’, >

    The Tribunal accepts that there is a risk the applicants may be harmed in the course of the violence in Jammu and Kashmir, but in view of the nature of the violence, predominantly targeting the security forces or protesters, and the number of recent civilian casualties relative to the size of the population, the Tribunal considers that the risk of harm to the applicants is remote.

39. The primary applicant has also stated that the pro-Muslim state government does not protect Sikhs in his home state. Based on figures from the 2001 census in India, there were 207,154 Sikhs in Jammu and Kashmir, out of a total population of all religious communities of 10,143,700. There were 6,793,240 Muslims, and 3,005,349 Hindus.[6] It is accepted that Muslims are the largest religious community; however the state of Jammu and Kashmir is also religiously diverse. The Tribunal is not satisfied on the evidence before it that the applicants have suffered harm in the past due to their religion and the country information does not indicate that sectarian violence is being directed at Sikhs in Jammu and Kashmir from the Muslim majority or on account of their religion. Overall, DFAT assesses that Sikhs in contemporary India have no heightened risk of official or societal discrimination beyond that experienced by the broader community. [7]The Tribunal does not accept that the applicants will suffer serious harm in the future because they are Sikhs or due to their religion.

    [6] Census of India n.d., Population by religious communities (Census Data 2001) DFAT Country Information Report, India 15 July 2015, at 3.18

1. It follows that on the information before it, the Tribunal is not satisfied that the applicants face a real chance of persecution involving serious harm in India for a Convention reason now or in the reasonably foreseeable future. Accordingly, the Tribunal is not satisfied that the applicants have a well-founded fear of persecution for a Convention related reason.

2. The Tribunal has also considered whether the complementary protection requirements of s.36(2)(aa) are met. As the Tribunal is not satisfied as to the applicants claims of fear of harm personally for the reasons claimed, or that they have suffered any harm in the past, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being returned to India, they will suffer significant harm. Nor is the Tribunal satisfied that the applicants will suffer significant harm in India for any other reason.

3. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a).

4. Having concluded that the applicants do 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 either applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

5. 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

6. The Tribunal affirms the decision not to grant the applicants a Protection visa.

   Penelope Hunter
   Member