1420973 (Refugee)

[2015] AATA 3407

1420973 (Refugee) [2015] AATA 3407 (11 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1420973

COUNTRY OF REFERENCE:                  India

MEMBER:Paul Windsor

DATE:11 September 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 11 September 2015 at 10:55am

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

3. The applicant applied to the Tribunal for review of this decision [in] December 2014.

4. The applicant appeared before the Tribunal on 4 September 2015 to give evidence and present arguments.  The applicant speaks English and therefore the Tribunal hearing was conducted without the assistance of an interpreter.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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).

7. 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.

8. 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’).

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken into account 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.

10. 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.

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

    Summary of Claims

12. In his Protection visa application the applicant claimed that while he has not experienced harm in India previously, circumstances have now changed and presently some serious issues have arisen of an agricultural land dispute with his [relative].  As a consequence his family, including himself, have received threatening calls, which can include serious injury or death.

13. The applicant claims that two big political parties are involved in this dispute and that his family belongs to one party and his [relative], who he fears may harm him, belongs to another.  He comments that political rivalries can cause great harm.

14. The applicant claims that he does not think that the authorities in India will protect him if he returns to India because ‘authorities have a different way of working than political parties – they act individually’.

15. At the hearing, the applicant indicated that the [relative]  in question is a neighbour who lives next door to the applicant’s family in the village [in] Punjab State, with his [children].  They want the land that his family have in [the village]. The land is situated at the back of the applicant’s family’s house.

16. His father was stressed and recently passed away due to a [medical condition].  He was about [age].

17. His [relative] and his [relative’s] sons support the Akali Dal party, which is the ruling party.  While they are not members they support the party through donations and assisting to organise speeches.  The applicant’s family vote for Congress but they are not involved with the party.

18. His [relative] and his [relative’s] sons have not been able to take possession of the disputed land but have harassed the applicant’s family.  They once placed a stone on the gate and have abused the applicant’s family.  They have threatened his family that, if your sons come home, we will kill them.  They once brought their tractors to the land.  His mother’s brothers came and stopped them.  They have not been able to take possession of the land so far.

19. His [relative] has had two fights with his father using sticks.  His father was attacked by his [relative] and had to protect himself.

20. His family sought to lodge a First Information Report (FIR) with the police about two and a half years ago but the police did not accept it.  This was because if you are not in power the police don’t care.

21. The applicant received 2 or 3 threatening calls from his [relative’s] son, [Mr A], one and a half years ago.  [Mr A] threatened the applicant that, if he comes back to India, they will beat him and kill him.  [Mr A] is a member of the Punjab Police Force.  The applicant does not know his rank but he has been in the police force for a long time.  He does not work in the local [police] station but works in another police station.

22. The applicant commented that if he was not genuinely in fear for his safety, he would have returned to India for his father’s funeral as that is a very important family matter.  He was unable to do this because of the risks to his safety.

    Findings and Reasons

23. On the basis of the copy of the applicant’s Indian passport provided to the Department, the Tribunal finds that the applicant is a citizen of India.  There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than India.  Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.  As the Tribunal has found that the applicant is a national of India, the Tribunal also finds that India is the applicant’s ‘receiving country’ for the purposes of s.36(2)(aa).

24. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of the applicant’s claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

25. The applicant claims that he cannot return to India because he fears for his safety due to a land dispute with his [relative], where he has received threats, including threats of death, should he return to India.

26. At the hearing, the applicant indicated that the land dispute with his [relative] and the threats commenced about four years ago, that his parents sought to lodge a FIR with the police at the [Police] Station about two and a half years ago, and that the applicant himself received two or three threatening calls on his phone in Australia from his [relative’s] son, [Mr A], one and a half years ago.

27. When asked why he had not raised the matter of the land dispute earlier than when he lodged his Protection visa application [in] September 2014, the applicant indicated that his family had not raised the issue with him earlier.

28. The Tribunal notes that from the departmental decision, it is clear that the applicant did not raise the land dispute issue when the applicant’s representative wrote to the Minister in December 2013 when the applicant sought Ministerial Intervention following a decision by the Migration Review Tribunal to affirm a decision by the department to refuse the grant of a further Student visa to the applicant.  The departmental decision indicates that the letter stated that the applicant wished to continue studying and made no reference to fearing harm at that time should he have to return to India.

29. The departmental Protection visa decision indicates that the Assistant Minister for Immigration and Border Protection decided not to exercise her intervention power under s.351 of the Act [in] August 2014.  There is nothing in the departmental decision to indicate that [the applicant] provided any advice to the department or the Minister up to the time of that decision [in] August 2014 to indicate that his circumstances had changed and that he was now fearful of returning to India due to a land dispute. 

30. The departmental decision indicates that the applicant subsequently was granted a Bridging visa E [in] August 2014 by a departmental decision maker, on the basis that he was making arrangements to depart Australia.  The departmental decision indicates that the applicant attended an interview with a departmental officer [in] September 2014, in relation to his Bridging visa E.  The applicant indicated that he would go back to India and would live with his parents on their farm.  The departmental decision indicates that the applicant advised at that time that he had money for a ticket that his mother had sent him and that he would depart Australia by [date] September 2014.  At that time the applicant made no claims about fearing harm.  The applicant lodged the Protection visa application fifteen days later [in] September 2014, at which time he claimed for the first time that there had been a change in his circumstances as a consequence of an agricultural land dispute with a [relative], and he now feared he would be harmed if he returned to India.

31. Having considered the applicant’s claims as set out in his application, including his comment that circumstances have now changed and presently some serious issues have arisen of an agricultural land dispute with his [relative], and compared those claims with the claims and comments the applicant made at the hearing, as well as the timing of the applicant’s request for Ministerial Intervention and the interview with the departmental officer held [in] September 2014, the Tribunal has concluded that there is no land dispute involving the applicant’s family; that his family did not lodge an FIR against his [relative] and his [relative’s] two sons, in relation to a land dispute; and the applicant and his family have not received threats from his [relative] and the [relative’s] sons in relation to a land dispute, including calls to the applicant in Australia from [Mr A].  This is on the basis of the applicant’s comments at the hearing that he received these calls about one and a half years ago.  If this was the case, the applicant would have received these calls around March 2014, well before the Assistant Minister decided not to consider his request for Ministerial Intervention (in August 2014), and well before he met with a departmental officer to discuss his departure arrangements, [in] September 2014.  The Tribunal considers that, if these calls, involving threats to beat and kill the applicant, had occurred, the applicant would have raised them with the department immediately at the time, approximately a year and a half ago.  The Tribunal concludes, therefore, that the applicant did not receive calls from his [relative’s] son, [Mr A], threatening to beat and/or kill him if he returns to India.

32. Furthermore, the departmental decision indicates that the applicant had received funds from his mother to purchase a ticket to depart Australia and return to India, following the refusal of his request for Ministerial intervention [in] August 2014, and prior to his meeting with a departmental officer [in] September 2014.  The applicant did not indicate to the departmental officer when they met [in] September 2014 that his circumstances had now changed and that he now feared for his safety due to a land dispute. When asked by the Tribunal why he had delayed raising the alleged land dispute issue until [date] September 2014, the applicant commented that it was because his family had not told him about the dispute earlier.  The Tribunal does not accept that if, as claimed, the land dispute commenced approximately four years ago; the applicant’s father sought to lodge a First Incident Report (FIR) with the Punjab police approximately two and a half years ago, but the police declined to accept this because of the political connections of his [relative]; and that the family had been threatened and his father had been involved in two fights with the [relative], involving sticks, and this was a significant source of stress for his father, the applicant would not have been advised of these significant developments by his family prior to his meeting with the departmental officer [in] September 2014, when his mother had sent him money to buy a ticket to leave Australia and return to India prior to this date.  The Tribunal finds it implausible that, if the family had concerns for the applicant’s safety, his mother would not have told him of these issues immediately upon it becoming clear that he was planning to return to India.  The Tribunal finds that this is further evidence in support of the Tribunal’s conclusion that none of the alleged incidents relating to the alleged land dispute occurred.

33. While the Tribunal accepts as plausible that the applicant’s [relative] and his [relative’s] family support the Akali Dal party while the applicant’s family vote for the Congress party, because the Tribunal does not accept that there is a land dispute or that the applicant’s family sought to lodge an FIR in relation to a land dispute but police refused to accept this because of his [relative’s] political affiliations, the Tribunal does not accept that these different political affiliations raise protection concerns for the applicant.

34. The applicant implied that his father suffered a [medical condition] due to stress from the alleged land dispute.  The Tribunal finds that this claim is speculative and the applicant has not provided any other information to support this claim.  In the absence of any other information to support this claim, the Tribunal does not accept that the applicant’s father having died from a [medical condition] is evidence that he was stressed because of a land dispute.  The applicant also claimed that he would have returned to India for his father’s funeral if he was not afraid for his safety, as this is a very important family matter.  While the Tribunal accepts that attending a father’s funeral is a very important matter in the context of the applicant’s cultural background, the tribunal also put to the applicant that if he left Australia to attend his father’s funeral, he would not be able to return, and that this would be a strong reason for him not attending the funeral.  The applicant agreed that if he left Australia he would not be able to return but restated that family ties were very important to him.  The Tribunal does not accept that the applicant having chosen not to leave Australia to attend his father’s funeral in India is evidence that there is a land dispute and that the applicant has genuine concerns for his safety should he return to India.

35. As the Tribunal does not accept that there is a land dispute between the applicant’s family and his [relative] and the [relative’s] sons, the Tribunal does not consider that the applicant will need to seek the protection of the authorities in India.

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

36. 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 be targeted for serious harm if he were to return to India, now or in the foreseeable future.

37. 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

38. 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).

39. For the same reasons set out above, the Tribunal 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).

40. 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

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

    Paul Windsor
    Member