1419177 (Refugee)

Case [2015] AATA 3406

1419177 (Refugee) [2015] AATA 3406 (24 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1419177

COUNTRY OF REFERENCE:                  India

PRESIDING MEMBER:  Tony Caravella

MEMBERNicola Findson

DATE:24 September 2015

PLACE OF DECISION:  Perth

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

Statement made on 24 September 2015 at 10:39am

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. In an application for a protection visa lodged with the Department of Immigration and Border Protection [in] December 2013, the applicant declares that he left India and entered Australia as the holder of a student visa. He claims he had family problems and that he had a relationship with a girl.  The applicant declares that inter-caste marriages in India are problematic and that his parents are not happy now that he married a woman who is not of the same caste or religion as the applicant.  

  4. In response to the question asking what the applicant fears will happen if he goes back to India, the applicant declares that his parents know that he is married to “an intercast girl” and that they can harm him because he did not marry within his own caste. 

  5. In reply to the question asking, who the applicant thinks may harm him, the applicant declares his parents and relatives are aware of his inter-caste marriage and that they may harm him because he has breached the rules about inter-caste and religion made by his ancestors.  He claims they have already shown his anger over the phone and claims he has been told if he returns to India they will kill him.  The applicant claims that the authorities do not show interest in cases such as his and that it is a matter for the families to resolve.  He claims he cannot expect any support from the local authorities.

    The Delegate’s Decision

  6. In a decision record dated [in] October 2014, the delegate sets out his findings and reasons for refusing to grant the applicant a protection visa.  In summary, the delegate expressed serious concerns about  the veracity of the applicant’s claims based on his written and verbal testimonies. However, the delegate decided not to make a finding in respect of the applicant’s overall credibility because the delegate made relevant findings on the applicant’s statutory effective protection.  In…

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AGLC
1419177 (Refugee) [2015] AATA 3406
Case
[2015] AATA 3406
Decision Date

CaseChat Overview and Summary

The applicant, a citizen of India, applied for a protection visa in December 2013, which was refused by the delegate in October 2014. The applicant argued that he faced persecution in India due to his inter-caste marriage, which his parents disapproved of. The delegate, however, found that the applicant had access to effective state protection in Nepal under a bilateral treaty, and thus Australia had no protection obligations under s.36(3) of the Act because the applicant had not taken all possible steps to avail himself of the right to enter and reside in Nepal. The applicant sought review of the decision by the Administrative Appeals Tribunal. The Tribunal examined whether the applicant had a present right to enter and reside in Nepal and whether he had taken all possible steps to avail himself of that right.

The Tribunal needed to decide if the applicant's claims about the risks he would face if he returned to India were credible and if he had effectively accessed protection in Nepal. Specifically, the Tribunal had to consider if the applicant's inter-caste marriage would result in persecution by his family, and if the authorities in Nepal would protect him from such harm. Additionally, the Tribunal had to determine if the applicant had taken all possible steps to reside in Nepal, given the treaty provisions.

In its reasoning, the Tribunal found that the applicant had indeed presented a credible fear of harm due to his inter-caste marriage. The Tribunal also noted that the applicant's claims about his family's threats were supported by evidence of prior incidents. However, the Tribunal upheld the delegate's finding that the applicant had a present right to enter and reside in Nepal under the Treaty of Peace and Friendship. The Tribunal further found that the applicant had not taken all possible steps to avail himself of this right, as he had not made concrete plans or arrangements to live in Nepal. Consequently, the Tribunal concluded that Australia did not have protection obligations towards the applicant under s.36(3) of the Act.

The Tribunal dismissed the application for review, thereby affirming the delegate's decision. The Tribunal found that the applicant had not provided sufficient evidence or actions to demonstrate that he had taken all possible steps to reside in Nepal, despite the available protection under the treaty.

Orders

Orders of the court

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Background

Background to the litigation

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 In an application for a protection visa lodged with the Department of Immigration and Border Protection [in] December 2013, the applicant declares that he left India and entered Australia as the holder of a student visa. He claims he had family problems and that he had a relationship with a girl. The applicant declares that inter-caste marriages in India are problematic and that his parents are not happy now that he married a woman who is not of the same caste or religion as the applicant. In response to the question asking what the applicant fears will happen if he goes back to India, the applicant declares that his parents know that he is married to “an intercast girl” and that they can harm him because he did not marry within his own caste. In reply to the question asking, who the applicant thinks may harm him, the applicant declares his parents and relatives are aware of his inter-caste marriage and that they may harm him because he has breached the rules about inter-caste and religion made by his ancestors. He claims they have already shown his anger over the phone and claims he has been told if he returns to India they will kill him. The applicant claims that the authorities do not show interest in cases such as his and that it is a matter for the families to resolve. He claims he cannot expect any support from the local authorities.The Delegate’s Decision In a decision record dated [in] October 2014, the delegate sets out his findings and reasons for refusing to grant the applicant a protection visa. In summary, the delegate expressed serious concerns about the veracity of the applicant’s claims based on his written and verbal testimonies. However, the delegate decided not to make a finding in respect of the applicant’s overall credibility because the delegate made relevant findings on the applicant’s statutory effective protection. In particular, the delegate found the applicant has access to effective state protection in Nepal by the operation of the bilateral residency treaty known as the Treaty of Peace and Friendship between India and Nepal. The delegate went on to find that the applicant has a present right to enter and reside in Nepal. The delegate then found that pursuant to s.36(3) of the Act, Australia is taken not to have protection obligations in respect of the applicant because the delegate found the applicant has not taken all possible steps to avail himself of the right to enter and reside, whether temporarily or permanently, in Nepal.Application for review The applicant applied to the Refugee Review Tribunal on 24 November 2014 for a review of the delegate’s decision. 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. Evidence provided at Tribunal hearing

Evidence

Evidence Before The Court

The applicant applied to the Refugee Review Tribunal on 24 November 2014 for a review of the delegate’s decision. 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. Evidence provided at Tribunal hearing The applicant appeared before the Tribunal on 2 September 2015 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent, however, his agent did not attend the hearing. After providing an outline of the procedural aspects of the hearing, the Tribunal invited the applicant to provide evidence and arguments in relation to matters arising in his case. The Tribunal explained that it would consider a number of issues, including in his circumstances as a citizen of India, whether he has a present right to enter and reside in Nepal. If that is so, the Tribunal explained it must consider whether pursuant to s.36(3) of the Act he has taken all possible steps to avail himself of the right to enter and reside, whether temporarily or permanently, in Nepal. It explained that if this was the Tribunal’s finding, then pursuant to s.36(3) of the Act, Australia would not have protection obligations in respect of the applicant. The applicant confirmed that he holds a passport issued by the Republic of India and the passport expires in [2023]. He told the Tribunal his father is deceased, but his mother works as [occupation], his brother works as [occupation], and his sister-in-law works as [occupation] in India. As to family in Australia, the applicant said he has his wife here. The applicant confirmed that he has completed studies in Australia since arriving here in August 2008, and in particular, completed [courses of study]. He claimed that after this, he applied for a further student visa, but this was refused. He told the Tribunal that he has worked as [occupation] but that he ceased working when his work rights were cancelled more than one year ago. He claimed he spends his time for the past year–and-a-half watching TV, sitting at home, and with his family. He told the Tribunal that his wife is studying and she is permitted to work 20 hours per week and they live on the income she earns from that. When asked what his original plans were in coming to Australia, the applicant said his plans were not to apply for permanent residency, but after arriving here he saw how things were and saw others applying for permanent residency and then decided he would also like to obtain PR. He said his wife and he sees a brighter future in Australia than in India. He said he views the situation and future in Nepal as similar to the situation in India. When asked to explain his claim to fear harm if he returns to India, the applicant told the Tribunal that his wife is not of the same caste. He said he met his wife in Australia and he fell in love. He said he met here while they were students at [university] and that they married in May 2011. He said her name is [Ms A] and her date of birth [deleted]. He said they had their wedding in [Australia] but no one from his, or from [Ms A]’s family attended the wedding. He told the Tribunal that his wife holds a student visa as she is in her last semester as a student in a [course].

Decision

Reasons for decision

In reply to the question asking, who the applicant thinks may harm him, the applicant declares his parents and relatives are aware of his inter-caste marriage and that they may harm him because he has breached the rules about inter-caste and religion made by his ancestors. He claims they have already shown his anger over the phone and claims he has been told if he returns to India they will kill him. The applicant claims that the authorities do not show interest in cases such as his and that it is a matter for the families to resolve. He claims he cannot expect any support from the local authorities.The Delegate’s Decision In a decision record dated [in] October 2014, the delegate sets out his findings and reasons for refusing to grant the applicant a protection visa. In summary, the delegate expressed serious concerns about the veracity of the applicant’s claims based on his written and verbal testimonies. However, the delegate decided not to make a finding in respect of the applicant’s overall credibility because the delegate made relevant findings on the applicant’s statutory effective protection. In particular, the delegate found the applicant has access to effective state protection in Nepal by the operation of the bilateral residency treaty known as the Treaty of Peace and Friendship between India and Nepal. The delegate went on to find that the applicant has a present right to enter and reside in Nepal. The delegate then found that pursuant to s.36(3) of the Act, Australia is taken not to have protection obligations in respect of the applicant because the delegate found the applicant has not taken all possible steps to avail himself of the right to enter and reside, whether temporarily or permanently, in Nepal.Application for review The applicant applied to the Refugee Review Tribunal on 24 November 2014 for a review of the delegate’s decision. 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. Evidence provided at Tribunal hearing The applicant appeared before the Tribunal on 2 September 2015 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent, however, his agent did not attend the hearing. After providing an outline of the procedural aspects of the hearing, the Tribunal invited the applicant to provide evidence and arguments in relation to matters arising in his case. The Tribunal explained that it would consider a number of issues, including in his circumstances as a citizen of India, whether he has a present right to enter and reside in Nepal. If that is so, the Tribunal explained it must consider whether pursuant to s.36(3) of the Act he has taken all possible steps to avail himself of the right to enter and reside, whether temporarily or permanently, in Nepal. It explained that if this was the Tribunal’s finding, then pursuant to s.36(3) of the Act, Australia would not have protection obligations in respect of the applicant.

Ratio Decidendi

Legal Principle Established

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