1500213 (Refugee)

[2016] AATA 3964

1500213 (Refugee) [2016] AATA 3964 (7 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1500213

COUNTRY OF REFERENCE:                  India

MEMBER:Tigiilagi Eteuati

DATE:7 June 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 07 June 2016 at 4:16pm

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

3. The applicant appeared before the Tribunal on 20 October 2015 to give evidence and present arguments.

   RELEVANT LAW

4. 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

5. 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).

6. 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.

7. 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.

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

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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

15. 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’).

16. ‘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.

17. 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

18. 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 AND EVIDENCE

19. In his protection visa application for application the applicant gave the following answer to the question as to why he had left India:

    “I finished my study and then I decided to move to Australia because I had girlfriend in India and her parents find out about us. As a part of Indian religion they didn’t like our relation and they told me stop contacting their girl. Just because of our love I still connect their daughter and then they finally warn me if you do that again we were going to kill you or harm you.”

20. In response to the question as to whether the applicant had experienced harm in India, the applicant answered:

    “When they find out about us they tried to stop us but we didn’t and then they try to harm me by hurting me. They didn’t harm me physically that time but they just warned me and then just because of then threat I decided to move to Australia but I still in touch with their daughter and one day they caught me talking to their daughter on phone and then they threat me again that if I ever turn in front of them they were going to kill me. So that is why I never went back to India.”

21. In response to the question as to what he feared may happen to him if he returned to India, the applicant answered:

    “I fear if I go back they gonna kill me on harm me so badly because their daughter still tells me what they think about me and just because of me they said thay have lost control on their daughter. I told her that I am going to come back and she warned me not to. Her parents still after me.”

22. In response to the question as to who he thought would harm /mistreat him if he returned to India, the applicant answered:

    “My girlfriend’s parents they can harm me if I go back to India. I am still in touch with her. We don’t call, we just chat using internet and she keep telling me what’s happening over their.”

23. In response to the question as to why the applicant thought this would happen to him if he returned to India, the applicant answered:

    “Reason I think this will happen because when they warned me first time when I was in India. I stopped for little while. I didn’t make any contact with her. But bit latter their daughter contacted me and she started crying and start saying that she cant live without me. I fell again for her and we start calling each other again but at the same time I started my ielts training and start collecting my document for the student visa for Australia. Ones I got every thing done I told her that I am going and I will be still in touch. While I am in Australia they find out that I am still in touch with their daughter they got really angry and they threat me of my life they said they are going to harm me in a manner. So I don’t know what they gonna do with me when they find out that I came back.”

24. In response to the question as to whether the applicant thought that the Indian authorities would protect him if he returned to India, the applicant answered:

    “I don’t think so because her family is a rich family they can easily bribe the authorities and I will loose everything. And as a part of India culture everyone knows that making relation before marriage is not got so even the local people they gonna go against me. So there’s gonna be no one on my side and the authorities they gonna listen to majorities.”

25. The applicant provided the Tribunal with a copy of the Minister’s delegate’s decision. In that decision the delegate recorded that the applicant had provided claims to the delegate which were inconsistent with those made in his application.

26. At the hearing before the Tribunal the applicant initially stated that he feared returning to India because he said it was possible that his ex-girlfriend’s family would harm him if he returned.

27. He said that he met his ex-girlfriend while attending school in [year] when he was [age] years old. He said that she attended some of the same classes as him. The applicant claimed that they became “boyfriend/girlfriend” after a few months. He said that this relationship did not involve kissing or sexual activity but rather was an acknowledgement of their mutual romantic feelings towards one another.

28. The applicant said that the applicant’s parents were unhappy with the relationship because they were of different castes. When asked what caste he was from the applicant claimed that he was a Sikh. When it was pointed out that Sikhism was a religion rather than a caste and invited to nominate a caste he said he was from the SC or “schedule” caste. When asked what caste his ex-girlfriend belonged to he said “Hindu”. In the Minister’s delegate’s decision record, a copy of which was provided by the applicant to the Tribunal, the applicant is recorded as indicating that his girlfriend was a Sikh. When it was pointed out that he had previously said that she was a Sikh the applicant claimed that she was a Hindu Sikh. When it was put to the applicant that Hinduism was a religion and asked whether he knew which caste his ex-girlfriend belonged to he said she was a Brahmin. When asked why he had never indicated that his ex-girlfriend was a Hindu Brahmin previously the applicant said that there was no need to tell anyone. The Tribunal indicated that the fact that the applicant had previously indicated that both he and his ex-girlfriend were Sikhs but that he now claims that he is a SC Sikh and his ex-girlfriend is a Hindu Brahmin, may indicate to the Tribunal that the applicant was not being truthful about he and his ex-girlfriend’s religion and caste.

29. The applicant was asked how he knew that his ex-girlfriend’s parents knew about his relationship and he said that he did not know. The Tribunal asked the applicant why he thought his ex-girlfriend’s parents thought he and she were in a relationship and the applicant did not answer.

30. Asked whether he was ever threatened, he said that he had been threatened once by his ex-girlfriend’s brother at the marketplace in India. At the hearing, the applicant claimed that he had never spoken to his ex-girlfriend’s parents. The Tribunal notes that the applicant had previously claimed that his ex-girlfriend’s parents had also threatened him over the telephone.

31. The applicant said that in around June 2008, about a year prior to arriving in Australia, he was approached by an unknown male who claimed to be his ex-girlfriend’s brother. He said that the man threatened to break his leg if he did not stay away from the man’s sister. Asked what the man had said specifically, the applicant stated that the man had said:

    “I want to have a word with you, are you in that school, do you know [girlfriend’s name], I said we are more like boyfriend/girlfriend, he said I’m her older brother, you better stay out of it otherwise I’m going to break your leg.”

32. The Tribunal asked the applicant whether he ceased the “boyfriend/girlfriend” relationship with his ex-girlfriend as a result of the threat and he replied that he did not. He said that they remained boyfriend and ex-girlfriend until he left India for Australia. When asked why he did not cease the relationship after being threatened by his ex-girlfriend’s brother, the applicant said that he did not believe that the threat was serious and did not fear harm from his ex-girlfriend’s family. When asked why he currently fears harm from the ex-girlfriend’s family if he did not fear them when he left India, the applicant claimed that he did not fear his ex-girlfriend’s family. He said that although he believed that there was a possibility that he could be harmed if he returned, he did not fear that he would be harmed upon return to India. The Tribunal indicated that an essential part of its role was to determine whether the applicant had a well founded fear of persecution for a Convention reason, and that this involved consideration of whether there was a real chance that the applicant would suffer serious harm if he returned to India. The Tribunal indicated that if the applicant did not fear that he would be harmed if he returned that it appeared to the Tribunal that the applicant would not be owed protection obligations as a refugee by Australia. The applicant indicated that he understood this.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

34. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the 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 in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

35. The Tribunal finds the applicant is a national of India. He provided a copy of the identity information pages of his Indian passport to the Department. The applicant made no claim to be a national of any other country. The Tribunal accepts the applicant’s claims should be assessed against India for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). In making the below findings, the Tribunal has considered the village in which he last lived to be his home region. As the Tribunal is not satisfied that there is a real chance that the applicant would suffer serious or significant harm, if he returned to India, it is unnecessary to determine whether the applicant has a right to enter and reside in Nepal under the India-Nepal Treaty of Peace and Friendship.

36. After assessing all the evidence and being mindful of the applicant’s personal circumstances, the Tribunal has considered the claims of the applicant individually and cumulatively. The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for a Refugee Convention reason because of his relationship with his former ‘girlfriend’ in India.  The applicant admits, and the Tribunal is satisfied, that the applicant has no subjective fear of persecution in India.

37. The Tribunal is not satisfied the applicant has a well-founded fear of persecution for any Convention reason now, or in the reasonably foreseeable future if he returns to India. Therefore, the applicant does not satisfy the requirements of s.36(2)(a). 

    Complementary protection

38. Notwithstanding that the applicant’s lack of fear of persecution excludes him from falling within the definition of a refugee in Article 1A of the Refugee convention, the applicant may still be owed protection obligations if there is a real risk that the applicant will suffer significant harm if he returns to India.

39. The Tribunal is aware that arranged marriages continue to account for the overwhelming majority of marriages across India and that there is significant social pressure for individuals to marry within their own caste and/or religion. The Tribunal is also aware that there can be violent reprisals, including killings, by the families and communities of those involved in inter faith or inter caste relationships (see for example Department of Foreign Affairs and Trade Country Report, India. 15 July 2015, paragraphs 3.33-3.36).

1. However, in this case, the Tribunal is not satisfied that the there is a real risk that the applicant will suffer significant harm if he returns to India. First, the Tribunal puts significant weight on the fact that the applicant does not fear returning to India as a result of his past relationship with his ex-girlfriend. The fact that the applicant who was raised in India did not believe that he would suffer harm in India if he returned weighs against an assessment that there is a real risk that the applicant would suffer significant harm if he returns to India. The Tribunal appreciates that a subjective fear of persecution is not required for a person to meet the complementary protection criterion in section 36(2)(aa). However, in determining objectively whether there is a real risk that the applicant will suffer significant harm if he returns to India, the Tribunal considers that the applicant’s lack of subjective fear of harm is a factor which can be considered in making this objective assessment.

2. The Tribunal notes that it has concerns that the applicant ever had any relationship of a boyfriend/girlfriend nature while he was in India. This is because of the various inconsistencies in his evidence including that he gave different names for his ex-girlfriend to the Minister’s delegate and before the Tribunal. However, for the purposes of this review, the Tribunal is willing to accept that the applicant had a “boyfriend/girlfriend” relationship with a Sikh girl in India before he arrived in Australia. The Tribunal accepts that she attended some of the same classes as him in High School. The Tribunal accepts that this relationship did not involve meeting outside of school or involve kissing or sexual activity, but rather was an acknowledgement of their mutual romantic feelings towards one another and involved them calling each other on the telephone.

3. The Tribunal does not accept that the applicant was ever threatened by anyone in India because of his relationship with his ex-girlfriend. The applicant’s evidence about threats has been confusing and inconsistent. In his protection visa application form he indicated that he was threatened by his ex-girlfriend’s parents when he was in India and this was the reason why he relocated to Australia. In his protection visa application form, he also indicated that his ex-girlfriend’s parents had threatened him in Australia and that was the reason he could not return to India. In the Minister’s delegate’s decision record, a copy of which was provided by the applicant to the Tribunal, the applicant is recorded as indicating that in 2008 his ex-girlfriend’s parents tricked his ex-girlfriend into giving them his phone number and then calling him to threaten him not to continue their relationship.

4. At the hearing before the Tribunal, the applicant claimed that he had never spoken to, or been threatened by, his ex-girlfriend’s parents, either when he was in India, or in Australia. Rather, he said that the only threat that he ever received was from his ex-girlfriend’s brother. At first the applicant provided very general information about the incident and indicated that the man threatened to ‘smash’ him. The applicant could not name his ex-girlfriend’s brother but insisted that her brother approached him in a marketplace in around June 2008 and threatened to break his leg if he did not stay away from the man’s sister. The applicant indicated that his ex-girlfriend’s brother was angry because they were “different religion, different caste” but when asked what the brother actually said, the applicant did not mention anything about the brother referring to religion or caste. The Tribunal considers that these glaring inconsistencies in the applicant’s evidence relating to threats he received indicate that the applicant has fabricated the threats to enhance his chances of being granted a protection visa.

5. Further, the Tribunal does not accept that the applicant and his ex-girlfriend were from different castes or different religions. In his application the application indicted that his ex-girlfriend’s parents did not approve of the relationship “because of Indian religion” and indicated that as part of Indian culture “everyone knows that making relation before marriage is not good”. In his application the applicant made no mention that his ex-girlfriend’s parents were upset because the applicant was from a different religion or caste from their daughter.

6. At the Tribunal hearing, the applicant claimed that his caste was Sikh and his ex-girlfriend’s caste was Hindu. In the Minister’s delegate’s decision record, a copy of which was provided by the applicant to the Tribunal, the applicant is recorded as indicating that his girlfriend was a Sikh. It was only after it was put to the applicant at the hearing that Sikhism and Hinduism were not castes and that he had previously said his ex-girlfriend was a Sikh that the applicant claimed that his ex-girlfriend was a Hindu Sikh Brahmin and he was a Sikh SC or scheduled caste. The Tribunal asked why he had not previously disclosed that his ex-girlfriend was a Brahmin Hindu; the applicant claimed that there was no need to.

7. The Tribunal notes that while the applicant indicated that his ex-girlfriend’s brother was unhappy because they were from different religions and different castes, when describing what his ex-girlfriend’s brother actually said to him, he did not mention anything about caste or religion. The Tribunal does not accept that the applicant and his ex-girlfriend are of different religions or castes. The Tribunal considers that the inconsistencies and contradictions in his evidence indicate that the applicant has fabricated his story in relation to his and his ex-girlfriend’s religion and caste to try to provide a reason why he would be harmed by his ex-girlfriend’s parents if he were to return to India.

8. The Tribunal finds that the applicant is a Sikh and prior to leaving India he was fond of a Sikh girl when he was at high school and that they considered each other boyfriend/girlfriend in the sense that they “liked each other” and contacted each other by telephone. The Tribunal finds that the applicant has fabricated his claims that he and his ex-girlfriend were of different religions and castes and has also fabricated the threats by his ex-girlfriend’s family in order to support his protection visa application.

9. The Tribunal does not accept that either the family of the applicant’s ex-girlfriend or anyone else in India would harm the applicant if he returned to India as a result of his ‘relationship’ with his ex-girlfriend over [number] years ago. The Tribunal has found that the applicant was never threatened because of the relationship and there is no information before the Tribunal that school children who’s “boyfriend/girlfriend” relationship is limited to calling each other on the telephone and being in the same school face a real risk of suffering significant harm.

10. For the reasons above, the Tribunal is not satisfied, on the evidence before it, that 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, now or in the reasonably foreseeable future, that the applicant will suffer significant harm, in the form of: arbitrary deprivation of life; the death penalty being carried out; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore the applicant does not meet the requirements of s.36(2)(aa).

    CONCLUDING PARAGRAPHS

11. 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).

12. 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).

13. 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

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

    Tigiilagi Eteuati
    Member