1418755 (Refugee)

[2015] AATA 3900

1418755 (Refugee) [2015] AATA 3900 (15 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1418755

COUNTRY OF REFERENCE:                  India

MEMBER:Paul Windsor

DATE:15 December 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 15 December 2015 at 3:02pm

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 [in] March 2014 and the delegate refused to grant the visa [in] October 2014.

3. The applicant applied to the Tribunal for review of this decision on 17 November 2014.

4. The applicant appeared before the Tribunal on 15 December 2015 to give evidence and present arguments.  The applicant, who indicated in his Protection visa application that he speaks Hindi, Punjabi and English, did not request an interpreter and the hearing was conducted in English.

5. The applicant’s registered migration agent did not attend the hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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).

8. 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.

9. 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’).

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal took 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.

11. The issue in this case is whether there is a real chance that, if the applicant returns to India, he will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to India, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of Migration Act.

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

    Summary of Claims

13. In his Protection visa application of [March] 2014 the applicant made the following claims (folios 80-84 of departmental file [number] refer):

    ·He left India for a better life without fear.  He fears ‘prosecution’ and violence from the Government and Government forces.  He will probably face ‘prosecution’ for his political and religious views.  He fears he will be harmed by opposing political parties, Government forces and police.  He fears severe beatings from Government forces.

    ·He thinks this will happen because of his current political and religious views, which are not accepted in his village and country.

    ·He has received death threats and his family members have been assaulted.   Warnings have been left at his house.

    ·He won’t be protected by the authorities in his country because they are the people he is in fear of.  They want to silence him and hurt him.

    Evidence from the hearing of 15 December 2015

14. At the hearing on 15 December 2015 the applicant indicated that he has a problem with his father’s land. A person named [Mr A] wishes to grab the land. The applicant doesn’t know why [Mr A] wants to take the land but [Mr A] has power with political parties.

15. The applicant explained that nearly ten years ago the applicant’s grandfather agreed to swap parcels of land with [Mr A] so that each party had land that was located closer to them.  However, the paperwork for this transaction was mixed up and this led to a dispute.  While this matter has now been resolved, [Mr A] still wants the land and this has led to fights with the applicant’s father, and [Mr A] giving warnings and wanting to harm the applicant.

16. When asked about these fights the applicant indicated that [Mr A] had fought with his father 2-3 times.  In July last year (2014), when his father was growing rice, [Mr A] diverted water from the applicant’s father’s property to [his own] property.  The applicant’s father went to the police and filed a report.  After that the police came to the property and [Mr A] was fined.

17. Most recently, about two months ago during harvest season, the applicant’s father drove his tractor through [Mr A’s] land to access the main road, as his own access was blocked by water.  [Mr A] abused his father and asked why he came through [Mr A’s] land.  His father explained that there is water blocking the other way and it is not safe to go that way.

18. The Tribunal asked the applicant whether anything else happened to which he replied that there were just these three incidents.  He said that [Mr A] gave a warning after the applicant’s father won the case and said that he would harm his son (the applicant) if he came back.  The Tribunal asked the applicant why [Mr A] would do this to which he replied that he didn’t know.

19. The Tribunal put to the applicant that the incidents he had raised with the Tribunal occurred after he lodged his Protection visa application in March 2013.  The applicant responded that [Mr A] had done a couple of things before then.  When asked what these things were the applicant indicated the dispute over the registration of the swapped land.  When the Tribunal suggested that issue had been resolved, the applicant replied that ‘they’ still gave a warning that they will grab the land and that if you come there I can come and kill you.  When asked whether there was anything else that had happened the applicant indicated that was all.

20. The Tribunal put to the applicant that what he had told the Tribunal was quite different to what he had written in his Protection visa application.  The Tribunal read to the applicant a summary of his claims from the application.  The Tribunal asked the applicant whether he has concerns because of his religious and political views.  He replied ‘no’.  The Tribunal asked the applicant whether he fears opposition political parties.  He replied ‘no’.  The Tribunal asked the applicant whether he fears severe beatings from government forces.  He replied ‘no’.  The Tribunal asked the applicant whether he has received death threats and family members had been assaulted.  He replied yeah, by the farmer.

21. The Tribunal also put to the applicant that, from what the applicant had said at the hearing, there seemed to be disagreements and tensions with [Mr A], but it seemed like it was not very serious, that the land registration issue had been sorted out and that while [Mr A] was upset about the applicant’s father’s tractor driving on his property, there did not seem to be too much in that incident.  The applicant replied that they ‘warned’ his family.  When asked if there was anything else he wished to tell the Tribunal he indicated ‘no’, that’s all.

    Findings and Reasons

22. The issue in this case is whether there is a real chance that, if the applicant returns to India, he will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to India, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of Migration Act.

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

24. On the basis of the copy of the applicant’s Indian passport provided to the Department, the Tribunal accepts that the applicant is a citizen of India and that his identity is as he claims it to be.  The Tribunal accepts that India is the applicant’s country of nationality for convention purposes and is the applicant’s ‘receiving country’ for complementary protection purposes.

25. The applicant did not mention a land dispute in his Protection visa application.  While the applicant indicated that two of the three incidents he spoke about at the hearing occurred after the applicant lodged his Protection visa application, he claimed that the dispute had its origins in a land swap agreement, which occurred 10 years ago, following which there had been a mix-up in the registration of the land.  When asked at the hearing about the written claims in his Protection visa application, the applicant indicated that key elements of his claims are not true.  By the applicant’s own admission he does not fear persecution due to his religious or political views, does not fear harm from opposing political parties, and does not fear severe beatings from government forces.  The applicant could not explain where these claims came from.  The Tribunal finds that the inclusion of untrue claims in the Protection visa application and the failure to mention the land dispute at all in his Protection visa application casts significant doubt over the veracity of all of the applicant’s claims.

26. In relation to his claims in the Protection visa application, the applicant indicated at the hearing that it was the case that he had received death threats and his family members had been assaulted.  He commented that this was by the farmer.  However, given the false claims included in the applicant’s Protection visa application and the evidence he gave at the hearing, which the Tribunal found to be vague and lacking detail, the Tribunal does not accept that the applicant or his family have received death threats or have been assaulted by [Mr A] or anyone else.

27. In relation to the land dispute, the applicant raised three matters: the problems with the registration of the ‘swapped’ land, the dispute over diversion of water in mid-2014, and a dispute over the driving of a tractor through [Mr A’s] land about two months before the hearing.  The applicant indicated that the dispute over the registration of the land had been resolved, without his father having to go to court, but [Mr A] had still indicated that he wants the land and that he still wants to harm the applicant.  The applicant could not offer any explanation as to why this should be the case.  He indicated that the dispute over the diversion of water had been resolved following his father filing a police report and the police attending the scene and fining [Mr A].  The incident where his father drove a tractor on [Mr A’s] land to access the road because his father’s access point was blocked by water appears to be a relatively trivial dispute.  While the applicant said that [Mr A] was aggressive and abusive at the time of the incident, the applicant did not indicate that this incident resulted in violence or the police being called and he indicated that there had only been these three incidents.  The applicant did not indicate that the most recent claimed incident has led to broader or ongoing problems.  When asked if there were any other incidents the applicant indicated that there were not.  The Tribunal finds that despite the applicant’s assertion that [Mr A] has power with political parties, the applicant’s family have been able to have disputes resolved in their favour.  Based on the available evidence, the Tribunal concludes that there is not an ongoing land dispute involving the applicant’s family and [Mr A] and that the applicant does not face a real chance of persecution amounting to serious harm or a real risk of significant harm from [Mr A] should he return to India, now or in the foreseeable future.    

28. The Tribunal does not accept the applicant’s assertion in his Protection visa application that the authorities are the people he is in fear of, that they want to silence him and hurt him and that they won’t protect him.  From the applicant’s evidence at the hearing his family has been able to engage with the authorities in India to resolve the land registration dispute and the dispute regarding diversion of water resources.  The applicant indicated at the hearing that he does not fear severe beatings from government forces.  While the Tribunal does not accept that the applicant faces a real chance of serious harm from [Mr A], based on the available evidence, the Tribunal also does not accept that the applicant could not engage the protection of the authorities in India should he need to.

    Does the applicant have a well-founded fear of persecution if he returned to India?

29. Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal does not accept that there is a real chance that the applicant will suffer persecution amounting to serious harm, if he were to return to India, now or in the foreseeable future.

30. Accordingly, 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).

    Complementary protection

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

32. Having regard to the findings of fact set out above, the Tribunal also does not accept 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, now or in the foreseeable future.  The Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

33. 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

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

    Paul Windsor
    Member