1418840 (Refugee)

[2015] AATA 3759

1418840 (Refugee) [2015] AATA 3759 (19 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1418840

COUNTRY OF REFERENCE:                  India

MEMBER:Tony Caravella

DATE:19 November 2015

PLACE OF DECISION:  Perth

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

Statement made on 19 November 2015 at 4:14pm

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] December 2013 and the delegate refused to grant the visa [in] October 2014.

   Background and protection claims

3. According to the applicant’s Application for a Protection (Class XA) visa form (Form 866C) lodged with the Department [in] December 2013, the applicant declares he was born in [year] in the town/city of [town], Punjab, India.  He claims, amongst other things, he has never married, is an Indian national, and does not hold citizenship of any other country.

4. According to the delegate’s decision record, and the movement records held by the Department, the applicant first arrived in Australia [in] November 2008.  He entered Australia as the holder of a Student TU Subclass 573 visa.  That visa’s expiry date was [in] September 2012.  The same records show the applicant was granted a Bridging Visa A [earlier in] September 2012, and that he has been granted several other bridging visas from that time.  The records indicate he is presently the holder of a bridging visa.

5. The Department’s records also show that [in] September 2012, the applicant applied for a [temporary] visa which was refused [in] January 2013.  The delegate refused that particular visa application after finding that the applicant did not have the required English language proficiency.  The applicant applied to the Migration Review Tribunal (MRT) for a review of that refusal, and [in] June 2013 the MRT affirmed the decision to refuse the [temporary] visa on the same basis as was refused by the delegate.

6. In his written application for this protection visa, the applicant writes that he seeks protection in Australia “Because in India I was involved with youth group of college and due to that we have bad relation with other group.  And they don’t want me to be in that group”.

7. In response to the question in the application form which asks whether the applicant experienced harm in his country, he writes, “Our group was helping to the other youths students who need help.  But people took us wrong way and tried to demolish our group. And May time we had a fight about that.  But no one didn’t wanted to listen exactly what we were doing.”

8. In response to the question in the application form asking what the applicant fears may happen to him if he returns to India, he writes, “Due to my previous involvement in that group some of the group people were against me and still they are in search of me that when I come back to India and they took revenge from me.  As I was the [official] of the youth club”.

9. In response to the question in the application form asking who the applicant thinks may harm/mistreat him if he goes back to India, he writes, “The other group that is Hindu group from the local area.”

10. In response to the question asking why the applicant thinks this will happen, he writes, “As it happened to me many times when I was in India we had fight with them and I got injured on my leg during fight badly and took me to the medical emergency services.”

11. In response to the question that asks if the applicant thinks the authorities in India can and will protect him, the applicant writes, “The authorities don’t take these matters seriously as they said the youth is (undecipherable) and these groups fight everyday and we don’t have time to resolve your issues.  Therefore I don’t’ have any hope that they will help out.”

    The delegate’s decision

12. The delegate’s decision record, a copy of which accompanied the application for review, shows the delegate considered the applicant may have a right to enter and reside in Nepal as he is the holder of an Indian passport and as a result of Articles 6 and 7 of the Treaty of Peace and Friendship between India and Nepal.  The delegate however did not make a concluded finding on this because the delegate found the applicant’s claims were not credible and it was therefore not necessary for the delegate to determine whether the applicant had effective protection in a third country. 

13. The delegate found the applicant failed to attend an interview to discuss his protection claims despite being sent a written invitation [in] May 2014 to make arrangements to attend an interview with the delegate to discuss the protection claims. 

14. The delegate found the applicant provided no evidence to support his vague and unsubstantiated claims.  The delegate found on the evidence submitted by the applicant the delegate does not have a well founded fear of persecution for one or more of the Convention grounds. The delegate also expressed the view, after having regard to the applicant’s visa history and to all the evidence before the delegate, that the applicant submitted the protection visa application after he had exhausted all other visa options to remain in Australia.  The delegate expressed the view that the applicant submitted the application in a last bid attempt to remain in Australia.

    Application for review

15. On 13 December 2013, the applicant applied to the Refugee Review Tribunal for a review of the delegate’s refusal decision.  A copy of the applicant’s decision record accompanied the application for review.  No further evidence or submissions were, or have been, submitted to the Tribunal since that time. The applicant was represented in relation to the review by his registered migration agent.

16. The Tribunals Amalgamation Act (Cth) 2015 took effect on 1 July 2015.  Transitional provisions of that Act had the effect that an application for review to the Refugee Review Tribunal (now abolished) is taken to be an application to the Administrative Appeals Tribunal. 

17. On 19 October 2015, after considering the material before it, the Tribunal decided it was unable to make a favourable decision on the information alone.  Accordingly, on that day, it wrote to the applicant, via his registered migration agent, and invited him to appear before the Tribunal to give evidence and present arguments relating to the issues in his case.  The letter advised the applicant the hearing was scheduled for 1.00 pm on 10 November 2015.  The address of the venue for the hearing is included in the invitation.  Also included in the invitation is a statement advising the applicant that in the absence of a request for an adjournment, which would only be granted with good reason, and in the event the applicant failed to appear at the scheduled hearing, the Tribunal may make a decision on the review without taking further action to allow or to enable the applicant to appear.  The hearing invitation also states that in the event the applicant does not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.

18. Section 426A of the Migration Act provides that if an applicant has been invited under s.425 to attend a hearing and does not appear on the day on which, or at the time and place at which, she or he is scheduled to appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. This section also empowers the Tribunal to dismiss the application without any further consideration of the application of information before the Tribunal.

19. The power to make a decision on the review or to dismiss proceedings for non-appearance only arises if the hearing invitation complied with the relevant statutory requirements. In this case, the Tribunal reviewed all of the documents and evidence before it, including the correspondence sent to the applicant by the Tribunal, including the hearing invitation. The Tribunal finds that the invitation was given to the relevant person by one of the methods in s.441A. Specifically, the hearing invitation was despatched by email to the email address of the applicant’s migration agent. The Tribunal finds the email address on the hearing invitation matches the email address set out in the application for review form. The Tribunal also notes that the prescribed period of notice of the relevant day, time and place of the scheduled hearing has been given in the hearing invitation. It also finds that a warning as to the effect of s. 426A(1A) appears in the invitation to hearing. Having regard to the foregoing, the Tribunal finds that the hearing invitation complies with the statutory requirements and that the power to proceed to a decision pursuant to s.426A is engaged.

20. In considering whether to proceed under s.426A(1A)(a) of the Act to make a decision on the review without taking any further action to allow or enable the applicant to appear, the Tribunal considered all the circumstances, including that the delegate made a decision in this case [in] October 2014. The Tribunal finds that from around that time after the despatch of the decision record, the applicant has clearly been on notice of the issues in the delegate’s decision record, including the delegate’s adverse credibility findings and the finding that the applicant failed to attend a Protection interview. The Tribunal also considered the evidence before it that the applicant in this case is represented by a migration agent and that the hearing invitation was sent to that agent and there is no evidence to suggest it has not been passed on to the applicant by his agent. Having regard to all of the evidence before it, the Tribunal considers it is appropriate in this case to exercise the discretion to proceed to make a decision on the review without taking further action to allow or enable the applicant to appear.

    RELEVANT LAW

21. 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

22. 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).

23. 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.

24. 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.

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

26. 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.

27. 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.

28. 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.

29. 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.

30. 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.

31. 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

32. 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’).

33. ‘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.

34. 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

35. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

36. The issue in this case is whether the applicant meets the criteria for the grant of a protection visa pursuant to the refugee protection provisions in s.36(2)(a) of the Act, or pursuant to the complementary protection provisions of s.36(2)(aa) of the Act.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of reference and third country protection

37. The Tribunal finds based on the evidence held in the Department’s file and comprising a copy of the biodata page from a passport issued to him by the Republic of India, that the applicant is a national of India.  The Tribunal therefore finds that India is the country of reference for the purposes of assessing the applicant’s refugee protection claims, and India is the receiving country for assessing his complementary protection claims.

38. The Tribunal finds no evidence to indicate the applicant is a national of any other country.  However, the Tribunal notes the applicant may have a right to enter and reside in Nepal in accordance with Articles 6 and 7 of the Treaty of Peace and Friendship between India and Nepal. 

39. However, the Tribunal decided not to make a final determination on this matter in this case since it finds, based on the vague and scant details in his general claims, the Tribunal is not satisfied, as set out in the following paragraphs, that the applicant has a well founded fear of persecution, nor faces a real risk of significant harm if he returns to India.

    Credibility issues

40. The UNHCR Handbook on Procedures and Criteria for determining Refugee Status, Reedited, Geneva, January 1992, at paras 196,197, 203 and 204 advises decision makers that, it is reasonable that applicants whose claims are plausible and credible should, unless there are good reasons not to do so, be given the benefit of the doubt.

41. Australian case law qualifies this and states that, “[i]t is clear that the Tribunal is not required to accept uncritically all claims made by applicants.” In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451 unreported, Beaumont J. observed (at page 16) that a liberal attitude concerning proof of persecution in the context of an application for refugee status should not, however, lead to 'an uncritical acceptance of any and all allegations made by suppliants'.

1. Generally speaking it is inappropriate to speak of onus in administrative law decisions. However, "it must remain the position that the applicant for refugee status carries the overall onus of establishing to the satisfaction of the decision-maker that the relevant chance or possibility exists." - Denissenko v Hasket and Minister for Immigration & Ethnic Affairs (unreported, Federal Court, Foster J, 9 May 1996) at p22.

2. The Full Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):' Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is ‘more probable than another' (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282).

3. Further to that, a decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out (Selvadurai v The Minister for Immigration and Ethnic Affairs and Refugee Review Tribunal, Heerey, J, 20 May 1994, p.7). The Tribunal has also been guided in the assessment of the applicant’s credibility, and the credibility of his evidence and claims, by the Tribunal’s guidelines on the assessment of credibility. 

4. The Tribunal has not had the benefit of observing the applicant at a hearing.  The Tribunal does not necessarily make an adverse credibility finding in every case where an applicant fails to attend a hearing.  However, in this case, when viewed in the context of the applicant’s failure to appear before the Tribunal and before the delegate as well, and in the context of the vague, unclear, and unsubstantiated claims for protection, the Tribunal formed a view that the applicant’s protection claims  are unconvincing and appear to have been fabricated for the purposes of making a claim to enable the applicant to protract his stay in Australia. 

   Assessment of refugee protection claims

5. The Tribunal considered the applicant’s claim that he was involved with an unnamed youth group at an unnamed college and his claim that they had a bad relation with some other, also unnamed, group.  He claimed that they, that is the other also unnamed group, did not want him to be in that, first unnamed group.  The Tribunal is far from satisfied that such claims of themselves ground a credible protection claim or that such vague claims substantiate a conclusion that the applicant faces a well founded fear of persecution.  The Tribunal also considered the applicant’s claim where he states that his group was helping other youths and students who needed help.  While that may be so, the applicant has provided no evidence to suggest why people took them the “wrong way and tried to demolish our group”.  It is not self-evident that another group would seek to harm the applicant’s group, or the applicant himself, for reasons of the applicant and his group, helping youths and students.  Nor is it self-evident, or indeed credible in this Tribunal’s view in the circumstances of this case, that because of the foregoing, or for any reason, in the “May time”  the applicant had a fight about that, or that no one wanted to listen exactly what the applicant was doing, as he claims.

6. The applicant claims that due to his previous involvement in “that” group, some of the, presumably other, “group people” were against him and that they are in search of him and want to take revenge on the applicant.  It is not at all clear to this Tribunal why this other group want to take revenge on the applicant, whether or not he was [an official] of the youth club, or for any other reason.  Nor is it clear to the Tribunal, why another Hindu group, or any other group or individual for that matter, would want to harm the applicant.  Having regard to the vague claims which lack clarity or any level of specificity or precision, and are devoid of sufficient information or evidence, the Tribunal is not satisfied that the applicant would be targeted for serious harm for reasons of his work with youth or students, or for one or more of the Convention grounds, or for any other reason, if he returns to India now or in the reasonably foreseeable future.

7. Having regard to all of the evidence and to all of the circumstances in this case, the Tribunal finds the applicant’s vague and unsubstantiated claim that he was the subject of harm or mistreatment “many times” when he was in India does not satisfy it that this in fact occurred, or that there is a real chance that he would be seriously harmed for one or more of the Convention grounds now or in the reasonably foreseeable future if he returned to India.  Having regard to all of his vague and unsubstantiated claims individually and cumulatively, the Tribunal is not satisfied that the applicant had fights with them, the other group(s). It therefore rejects his proposition that he got injured on his leg, or injured anywhere else on his anatomy, or that he was taken to the medical emergency services.

8. The Tribunal considered the applicant’s claim that the authorities in India do not take the matters he refers to seriously.  To the extent that the Tribunal finds the matters he refers to are concocted and fabricated, and the Tribunal finds that is to a significant extent, the Tribunal accepts the authorities in India would not take such matters seriously.  Having regard to all of its findings, the Tribunal finds that it is not satisfied the applicant needs any state protection in India because it is not satisfied that there is a real chance that faces serious harm for any of the reasons claimed, or for any other reason now or in the reasonably foreseeable future in India.   

9. For these reasons, the Tribunal finds the applicant does not have a well founded fear of persecution in India and therefore does not satisfy s.36(2)(a) of the Act.

   Assessment of complementary protection claim

10. As the Tribunal finds that the applicant does not satisfy the requirements prescribed in s.36(2)(a) of the Act, it is required to consider whether he satisfies the requirements under the complementary protection provisions of the Act pursuant to s.36(2)(aa). As indicated in the section under relevant law in this decision, this requires that the Tribunal be satisfied 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 as that term is defined.

11. In his written claims, the applicant made no separate of specific claims to fear ‘significant harm’ if he is removed to India.  The Tribunal therefore considered all of his claims set out under his refugee protection claims in the context of the provisions determining complementary protection.     

12. Having regard to the applicant’s vague and nebulous claims to fear harm from other Hindu group(s), and for similar reasons as expressed above in its consideration of his refugee claims, the Tribunal is not satisfied that the applicant has been the target of any harm in the past in India, or that he will be the target of any harm whatsoever if he returns to India.  The Tribunal finds that the applicant has not provided any evidence particular to complementary protection that satisfies it that there is a real risk that the groups, Hindu or otherwise, have an intention to carry out the death penalty on the applicant.  Nor is it satisfied on the vague claims before it that those groups have any intention to arbitrarily deprive him of his life, or to subject the applicant to torture.  Nor does the Tribunal find, based on all of the applicant’s inexplicit and imprecise claims, that it is satisfied there is a real risk that the unnamed Hindu groups, or anyone else, would inflict cruel or inhuman treatment or punishment, or degrading treatment or punishment, on the applicant.  

13. For these reasons, the Tribunal finds there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.

    Conclusions

14. 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).

15. 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).

16. 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

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

    Tony Caravella
    Member