1417062 (Refugee)

[2016] AATA 3696

1417062 (Refugee) [2016] AATA 3696 (20 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1417062

COUNTRY OF REFERENCE:                  India

MEMBER:Lesley Hunt

DATE:20 April 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 20 April 2016 at 10:53am

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, and in the case of the third and fourth named applicants, dual citizens of India and Australia, applied for the visas on [date] December 2013 and the delegate refused to grant the visas on [date] September 2014.

3. The applicants appeared before the Tribunal on 29 October 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. The applicants were represented in relation to the review by their registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The third and fourth named applicants

5. The evidence before the Tribunal is that the third and fourth named applicants are Australian citizens.  Copies of their Australian citizenship certificates were submitted to the Tribunal.  The certificates indicate that [Applicant 4], born [date] in Australia, acquired Australian citizenship and an Australian citizenship certificate was [issued] on [date] May 2014; and [Applicant 3] born on [date] in Australia, acquired Australian citizenship on [date] September 2010 and was issued with an Australian citizenship certificate on [date] March 2016. 

6. The Tribunal is therefore confined to assessing the protection claims of the first and second named applicants.

   Country of Nationality

7. The first and second named applicants arrived in Australia on [date] March 2002 holding passports issued by the government of the Republic of India [and temporary visas].  They provided a certified copy of their Indian passports and there is no evidence to suggest their passports are not genuine documents.  The Tribunal is satisfied that the applicants are nationals of India and has assessed their claims against India accordingly.

8. There is no evidence to suggest that the first and second named applicants have the right to enter and reside in any country other than India.  They are not excluded from Australia’s protection by s.36(3) of the Act.

   Background Information

9. The applicants provided a copy of the delegate’s decision to refuse to grant them protection visas with their review application to the Tribunal. The delegate’s decision record sets out the following information regarding the applicants’ migration history in Australia.

10. The first and second named applicants lodged an onshore application for Protection Visas on [date] April 2002.  Their applications were refused on [date] August 2002.  They sought review of that decision with the Refugee Review Tribunal (RRT) and the RRT affirmed the decision to refuse them protection visas on 3 February 2004.  On [date] March 2004 the applicants sought Judicial Review and the Federal Magistrates Court remitted the matter back to the RRT on [date] May 2006.  On 8 August 2006 the RRT again affirmed the decision to refuse the applicants protection visas. On [date] September 2006 the applicants appealed to the Federal Court and the Tribunal decision was upheld on [date] August 2008.  The applicants appealed to the Full Federal Court and on [date] April 2009 the decision of the Federal Court was upheld by the Full Federal Court.  The applicants appealed to the High Court and on [date] November 2009 the High Court upheld the decision of the Full Federal Court. 

11. On [date] December 2009 the applicants requested that the Minister intervene and substitute a more favourable decision; however on [date] April 2010 the Minister refused this request. 

12. On [date] December 2010 the third named applicant requested Ministerial Intervention including the first and second named applicants in the request.  On [date] May 2011 the applicants were notified that the Minister would not consider their request for intervention.

13. On [date] July 2011 the second named applicant sought Ministerial Intervention and included the first named applicant in the request.  On [date] August 2011 the applicants were notified that the Minister would not intervene in their case.

14. On [date] December 2013 the applicants lodged an onshore application for protection visas on the basis of the Federal Court judgement in SZGIZ v MIAC [2013] FCAFC 71.  The application was refused on [date] September 2014 and is the subject of this review application. 

15. In SZGIZ it was determined that the section 48A bar preventing a second application for protection did not prevent a non-citizen who had made a valid application on the basis of the refugee criterion in s.36(2)(a) from making a subsequent application on the basis of the complementary protection criterion in s.36(2)(aa) or the family membership criteria in s.36(2)(b) or (c) while he or she remained in the migration zone.  The Court held that s.48A(2) of the Act (as it was at the date of the decision in SZGIZ) did not prevent a person from making an application based on a criterion which did not form the basis of a previous unsuccessful application for a protection visa by that person.  The Court held that, in the circumstances, there was no obligation for the Tribunal to consider again whether the applicant met the refugee criterion in circumstances where it had already decided that he did not.  This was confirmed by the Federal Court in AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424.

16. As the first and second named applicants in this case have previously had their claims for protection assessed under s.36(2)(a) and (b) prior to the commencement of the complementary protection laws and have not left Australia since the final determination of the previous protection application, the Tribunal considers that it must confine its consideration to whether the applicants satisfy the requirements of s.36(2)(aa) and (c) – the complementary protection legislation.

    Complementary Protection

17. 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’).

18. ‘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.

19. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

20. 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.  The Courts have determined that state protection must be such as to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.

21. 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.

    Claims for protection

22. The first named applicant is the only applicant who has made claims for protection.  The second named applicant is included as a member of the family unit of the first named applicant.  The Tribunal therefore refers to the first named applicant as ‘the applicant’ in this decision record.

23. The applicant refers mainly to seeking protection in the interests of his two children. The submission from the representative submitted in support of the visa application refers to claims for protection in relation to the applicant’s children. It is acknowledged in the submission that the fourth named applicant was about to acquire Australian citizenship.  At the hearing with the Tribunal the applicant acknowledged that at the time of the delegate’s decision to refuse the visas the fourth named applicant (the older of the two children) was an Australian citizen.  The applicant clarified at the hearing that his younger child, the third named applicant was eligible for Australian citizen and this would likely be granted in several months.  The applicant acknowledged that as Australian citizens the children would not meet the criteria for the grant of protection visas in Australia.

24. As stated in paragraph 6 above, the Tribunal finds that, as an Australian citizen, the third named applicant does not meet the criteria for the grant of a protection visa:  s.36(2)(a) and s.36(2)(aa).

25. As both children do not satisfy the legal criteria for the grant of the protection visa, at the hearing the Tribunal asked the applicant if he and the second named applicant had fears of returning to India, apart from their fears for their children.  The applicant clarified that his parents have passed away; his [siblings] live in [country] and his [sibling] lives in Jalandher, Punjab, India.  His [sibling]’s [spouse] is a [profession] in Jalandher.  The applicant’s [sibling] and [spouse] have [children], all of whom are studying – the eldest child is attending university.  The applicant’s wife’s parents, [and siblings] live in India, another [sibling] lives in [country], and a [sibling] lives in Australia. 

26. The applicant claims that he still fears returning to India after what he experienced there in 1984.  He states that in 1984 he was picked up by the police, accused of helping Sikh terrorists who were fighting for a separate state, taken to a police station and harmed.  He confirmed that after he was released he continued to live in the same area until 2002 and nothing further happened to him in that time.  He stated that nothing happened to him or his family however he retains a fear of police in India. 

27. The Tribunal put to the applicant that independent sources of information indicate that there is no longer an active Sikh separatist movement in India and it is reasonable to assume that there is no real chance of him being taken by police and / or seriously harmed on returning to India.  He responded that the police open up old cases and this can cause problems.  The Tribunal put to the applicant that that he has not claimed that there was or is an outstanding case against him.  He has previously stated that he was released without charge.  He responded that the police are corrupt; they do things for money; and so he does not want to return to India.  He fears the police would kill or torture him.  They would open up the old case and extort money from him.  He confirmed that there is no outstanding case against him from 1984 and he was never convicted of anything.

28. The Tribunal put to the applicant that nothing happened to him between 1984 and 2002 in India; there is no longer a Sikh separatist movement in India and no evidence of police repression of Sikhs in the Punjab in relation to the separatist movement of 1984.  For these reasons the Tribunal may form the opinion that there is no real chance or real risk of the applicant being significantly harmed if he returned to India.  The Tribunal referred the applicant to his previous application for protection and review applications and the finding that he does not face a real chance of serious harm in India.  The Tribunal noted that he has not raised any new claims in relation to fearing harm in India. 

29. The applicant responded that he wants to forget what happened to him in the past and he wants a new life for his children in Australia.  The applicant stated that he does not have permission to work in Australia and he and his family are supported by the Sikh Temple in Australia.  As such he would be returning without money.  The Tribunal put to the applicant that he, his wife and children have extended family in India and it may be reasonable to assume they would support him and his family until he is able to support his family.  He stated that his wife’s family are poor and not educated.  He acknowledged that his extended family are living comfortably; however they have their own financial commitments and he has to look after his own wife and children. 

30. The applicant stated the problem is money.  He will not be able to fund the education for his children.  His children do not speak Punjabi well and always speak English.  His children will not be able to adjust to living in India as they have never been there and they do not want to go there.  Both children are doing very well at school in Australia.  They will not have the same opportunities in India as they would have in Australia.  All these things weigh heavily on him and his wife and they are mentally very upset. 

31. The Tribunal put to the applicant that his children have the right to remain living in Australia and noted that the applicant’s wife has a [sibling] living permanently in Australia.  He responded that they do not have very much contact with this relative and they do not know what [sibling] is doing therefore living with this relative is not an option for his children.  The Tribunal put to the applicant that his two children also have Indian citizenship and as such are able to return to India with their parents.  The applicant stated that he has concerns regarding the safety, well-being, access to education and access to opportunities for his children.  The children speak very little Punjabi.  They always speak in English; they will be discriminated against and will suffer humiliation and degrading treatment. He stated that these concerns are very distressing for him and his wife.

32. The Tribunal put to the applicant independently sourced information which indicates that India’s two official languages are Hindi and English; Hindi and English are the two official languages in which the government conducts business; English is an essential requirement for white-collar jobs in India; and, according to the 2001 census an estimated 125 million people speak English, either as a first, second or third language in India. 

33. The Tribunal put to the applicant that state education is free in India and English is spoken in many of India’s private schools.  India’s best universities teach in English. 

34. The Tribunal put to the applicant that the fact that his two children speak, read and write English appears to be an advantage, not a disadvantage.  The applicant responded that they cannot afford the private schools and the children in the government schools have very limited opportunities.  The government schools in the Punjab teach in Punjabi, not English and his children speak very little Punjabi.  The applicant acknowledged that he and his wife speak Punjabi at home.  The Tribunal put to the applicant that there is a school program in India called Teach for India, introduced in 2006, which places specially trained teachers in government-run and low-income private schools that lack resources.  The instruction in this program is in English in recognition that learning English is essential to future success as English is regarded as more than just a language but a skill set.  

35. The Tribunal put to the applicant that the Indian School Certificate involves 12 years of schooling and the award of a Pass Certificate requires a pass in four or more subjects, including English. The Tribunal put to the applicant that information regarding the Punjab indicates that at Punjab primary schools students are offered Punjabi, Hindu and Urdu as a first language and English as a second language.  In the Tribunal’s view the applicant’s children would learn Punjabi quickly given that it is the language they are used to hearing at home.  The applicant responded that he worries that his children would not fit in and would suffer.

36. The Tribunal put to the applicant that his claims relate mainly to his past experiences of being harmed by police in 1984 and his anxiety with regard to his children.  The Tribunal put to the applicant that it does not accept that his children would be discriminated against, humiliated or suffer social or economic disadvantage because they are Australian citizens and speak mainly English.  The independent country information does not support his claims in this regard. 

37. The second applicant clarified that she and her husband married in 2001 and his experiences of being harmed in India occurred before this.  She told the Tribunal that her children are well settled in Australia and they do not want to go to India.  She wants her children to stay in Australia and be educated in Australia.  They cannot leave their children here as they would all suffer mental and emotional stress if they lived apart.  She claimed that if they have to return to India they will have nothing to eat and their children will not be educated.  She clarified that she does not know if they are still able to live in the home they lived in before coming to Australia.  The Tribunal put to the second applicant the independently sourced information regarding free education for children in government run schools in India.  She responded that education is not free and poor families are not able to educate their children in India.

    FINDINGS AND REASONS

38. The Tribunal notes that the applicant’s claims of fearing harm in India relate to his past experiences of harm perpetrated against him by the police in 1984 and his and his wife’s mental stress in relation to their fears for their children in India. 

39. As put to the applicant at the hearing, his past experiences of harm occurred more than thirty years ago.  He does not claim to have experienced any further harm between 1984 and 2002 when he departed India.  His past experiences of harm occurred during the movement for a Sikh separate state in India and the state’s actions in repressing this movement.  There is no longer a Sikh uprising or active militant movement for a separate state and there is no evidence to indicate that Sikhs in general face a real risk of significant harm in India in relation to the past uprising or for any other reason.  The applicant does not claim to have any outstanding charges against him.  After assessing all the evidence the Tribunal is satisfied that the applicant does not face a real risk of significant harm from the police or any other agent of the state on return to India as a result of his past experience of harm, or because he is a Sikh, or for any other reason.

1. The Tribunal has considered the applicant’s claims in relation to facing poverty in India – returning there with little or no money.  However the Tribunal does not accept that the applicant and his family will have no money when they return to India or that they will face poverty to the extent that they will suffer significant harm. The Tribunal notes that the applicant has funded several Tribunal and Court actions and requests for Ministerial Intervention in relation to his application for protection in Australia. He claims he is being supported by the Sikh Temple.  Both the applicant and his wife have extended family members living in India.  In the Tribunal’s view it is reasonable to assume that members of the Sikh community and the applicant’s extended family members will be able to support the applicant and his family and that the applicant will be able to support his family through farming in India, as this was his occupation before coming to Australia. Whilst the applicant may face a level of economic hardship in India, this does not amount to significant harm as that term is defined in s.36(2A) and s.5(1) of the Act.

2. The Tribunal has considered the applicant’s fears and claims in relation to his children. As put to the applicant at the hearing, the country information does not support his claims that his children will face discrimination, humiliation, will not be able to access education, and will have limited opportunities in India because they speak English and have lived in Australia.  As put to the applicant at the hearing, it is reasonable to assume his children will become fluent in Punjabi without undue difficulty given that this is the language their parents speak at home. 

3. Furthermore, the following country information indicates that the applicant’s children’s will be able to access education in India and their English language skills will be an advantage rather than a disadvantage.

4. A July 2015 report from the Department of Foreign Affairs and Trade (DFAT) reports that India has two official languages – Hindi and English – and that each of India’s states legislate their own official languages.  Although there was only a relatively small number of Indians for whom English was their first language, an estimated 125 million people speak English as either a first, second or third language.[1] According to DFAT, the Central, state and local governments fund and provide education services in India. A national Right to Education Act was passed in 2009, and some states have also passed ‘right to education’ laws. Participation rates at Indian primary schools are high. According to the United Nations Children’s Fund (UNICEF), an estimated 94 per cent of children in India attend primary school, and India has successfully reduced the number of out-of-school children from 32 million in 2001 to 1.4 million in 2011 as part of a program to make elementary education universal.[2]

   [1] DFAT 2015, DFAT Country Information Report – India, 15 July, p.4.

   [2] Op.Cit.

5. The vast majority of Indian children attend government-run primary schools in rural areas.  In 2008-2009, rural India accounted for more than 88% of India’s primary-school students, of whom over 87% were enrolled in government-run schools.  Whilst, many children from rural areas struggle to speak English, partly because of teachers also struggle to speak English in many rural areas, India’s best universities teach exclusively in English.[3]  In the past few decades many organizations have begun working with government schools and teachers to improve learning outcomes.  Teach for India is an example.  It is an initiative to address teaching quality by placing specially trained teachers in government schools and all instruction is in English.  It started in 2006 and is aimed at government-run and low-income private schools that lack sufficient resources.  The program’s philosophy is that learning English is essential to future success, as English is more than a language it is a skill set. The learning is experiential and engaging.[4]

   [3] Gelda, A, Narayan, V, Mudiyam, M, Raturi, K and Seshan, N 2013, “Needs Improvement’: Despite Progress, India’s Primary Education System Has a Ways to Go, Wharton School of the University of Pennsylvania, 2 January.

   [4] Ibid

6. A 2015 Guide from the United Kingdom containing information relating to international qualifications offered for undergraduate admission in the United Kingdom indicates that school courses are commonly taught in Hindi, the regional language, or English.  The guide indicates that the Indian School Certificate (ISC) involves 12 years of schooling.  The award of a Pass Certificate in the ISC requires a pass in four or more subjects, including English, at one sitting.  In the ISC, English is the medium of instruction.[5]

   [5] The Universities and Colleges Admissions Service (UCAS) 2014, International qualifications for entry to university or college in 2015, p.32.

7. With regard to social discrimination arising from English language and having lived in Australia rather than India, independent reports indicate that English is both admired and hated. On the one hand, there is an increasing demand for the English language which is associated with progress and development, while on the other hand the language is perceived as a killer of native or indigenous languages.[6] A BBC News article in November 2012 refers to most of the hostility to English in India coming from regional or language chauvinists who condemn it as a Trojan horse of globalisation. However it is generally accepted that English is an essential passport to white-collar jobs.[7]

   [6] Meganathan, R 2011, ‘Language policy in education and the role of English in India: From library language to language of empowerment’, in H. Coleman (ed), Dreams and Realities: Developing Countries and the English Language, British Council, p.3

   [7] Masani, Z 2012, ‘English or Hinglish – which will India choose?’ BBC News, 27 November.

8. After assessing the evidence the Tribunal accepts that the applicant’s two children will experience a period of difficult adjustment returning with their parents to live in India and this difficult adjustment will be in part because they are not fluent in the Punjabi language.  However the Tribunal does not accept after assessing all the evidence that the applicant’s two children will be denied access to education and suffer discrimination and/or humiliation and/or social and economic disadvantage, to an extent that can be regarded as “significant harm” as that term is defined in s.36(2A) and s.5(1) of the Act.  In support of this finding the Tribunal notes that both children are young and their parents speak mainly Punjabi at home.  It is reasonable to assume that both children would quickly become fluent in Punjabi and would also retain their English language skills.  In the Tribunal’s view the applicant’s children will be advantaged rather than disadvantaged by having English language skills and having lived in Australia. 

9. The Tribunal does not accept that the applicant’s children face a real risk of significant harm in India.  The Tribunal therefore does not accept that the applicant and his wife’s anxiety and mental stress or their fears for their children are based on objective facts.  The Tribunal finds that the applicants’ mental stress does not constitute “significant harm” as that term is defined in the legislation; nor does the Tribunal find that the applicants faces a real risk of significant harm as a result of their mental stress in relation to their concerns for their children.

10. The Tribunal does not accept that the applicant and his wife have no money, given that they have managed to fund protection visa applications, review applications and several court actions in relation to their immigration status in Australia.  They have both worked in Australia for many years prior to losing their permission to work and they receive support from the Sikh community in Australia.  They have extended family members living in India; the applicant has farming skills and worked in India as a farmer prior to coming to Australia. The Tribunal does not accept that the applicants’ socio-economic circumstances are such that they face a real risk of significant harm in India, as that term is defined in s.36(2A) and s.5(1) of the Act.

11. The Tribunal considered the applicants’ claims individually and cumulatively.  After assessing all the evidence the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm. 

12. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2) (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

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

    Lesley Hunt
    Member