1500289 (Refugee)

[2016] AATA 3610

1500289 (Refugee) [2016] AATA 3610 (22 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1500289

COUNTRY OF REFERENCE:                  India

MEMBER:Chris Thwaites

DATE:22 March 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 22 March 2016 at 9:07am

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)[1].

   [1] The relevant law is attached to this Statement of Decision and Reasons

2. The applicant, who claims to be a citizen of India, applied for the visa [in] June 2014 and the delegate refused to grant the visa [in] December 2014.

3. On 8 January 2015 the applicant applied to the Tribunal for review of that decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The Tribunal has before it the Department’s file in relation to the applicant’s protection visa application and the Tribunal’s file in relation to the review application.

5. The applicant’s written reasons for claiming protection are contained in a written statement attached to his visa application forms. In summary the applicant claims he left India in 2008 on a [temporary] visa to [accompany] his wife. His main intention was to leave that country and get permanent settlement in Australia. He was facing a lot of problems in his country. He and his family were victims of abuse and threats in India. While his family supports him, he got married to a girl from a different caste, and his in-laws wanted to attack him. His family has also been targeted. His family has many opponents and enemies who want to see them disgraced. The applicant states that unfortunately the use of threats and violence to deter people is very common in India if someone gets married in a different caste. His family advised him that it was not safe him to return there due to fears that he may be harmed by his in-laws, and that he should remain in Australia if possible. Therefore the applicant left his country and does not wish to return. The applicant states he and his family have received various threats. He and some of the members of his family have been attacked in the past, but luckily he has not been seriously harmed. In all the incidents they have not received any help from the police. The applicant states that if he goes back to India he fears that he will be physically harmed or tortured due to his in-laws. He has been living in Australia for a long time and it would be very difficult for him to go back and make a living in such a violent and dangerous place. He has been used to the peaceful and fair system in Australia and believes he will suffer significantly if he goes back. The applicant believes that conservative relatives will harm him if he goes back. He states killings and kidnappings due to religious differences and tensions are very common in India. He has seen and heard many instances of people being kidnapped, hurt and tortured who are in similar situations. The applicant states that since his family have already been threatened and attacked he is worried that the same may occur to him and his family. He feels that it would be best for him and his family if he was allowed to stay in Australia. He does not think he will be protected by the authorities in India as they are not good at giving protection to normal everyday people.

6. The delegate’s decision record states the applicant’s answer to question 49 in his visa application forms indicate he had documentary evidence to support his claim for protection, however no such information has been received from the applicant. The decision record indicates the applicant did not act on the invitation to request an interview with the delegate to discuss his claims, and the delegate made the decision on the information before him. The delegate refused the application because on the information before him the delegate was not satisfied the applicant had a real chance of being persecuted for a Refugee Convention reason and therefore the delegate was not satisfied the applicant’s fear was well founded. The delegate was not satisfied Australia had protection obligations to the applicant under the Refugees Convention and therefore the applicant did not satisfy s.36(2)(a) of the Act. The delegate was also not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there was a real risk the applicant would suffer significant harm. Therefore the delegate was not satisfied Australia had protection obligations to the applicant under s.36(2)(aa). Therefore the delegate refused to grant the visa.

7. As noted above on 8 January 2015 the applicant applied to the Tribunal for review of that decision.

8. On 23 December 2015 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 21 March 2016. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice. No response was received. On 11 and 18 March 2016 the Tribunal sent an automated SMS hearing reminder to the mobile telephone number the applicant had provided to the Tribunal. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   FINDINGS AND REASONS

   Nationality

9. On the basis of the copy of the applicant’s Indian passport, provided to the Department, the Tribunal finds that the applicant is a national of India. 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).

   Refugee criterion: s.36(2)(a)

10. 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. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. 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.)

11. In this particular case, the applicant’s claims are unsubstantiated and without further detail amount to mere assertions. If the applicant had attended the hearing, the Tribunal would have had the opportunity to discuss the applicant’s claims with him in more detail and test their veracity. The Tribunal would have asked the applicant for further details about his relationship with his wife, when they met and how they developed their relationship. The Tribunal would have asked the applicant about their lives in India before they came to Australia, where they lived and if they had experienced any harm from the applicant’s wife’s family. The Tribunal would also have asked about the harm suffered by the applicant’s family. The Tribunal would have asked the applicant about when he had decided to come to Australia and why, and what arrangements were made. The Tribunal would have asked the applicant if his family had experienced any harm after he left India, and his fears and concerns about returning to India.

12. The letter inviting the applicant to the hearing put the applicant on notice that the Tribunal had considered all the material before it and was unable to make a favourable decision on that information alone. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear, and no request for a postponement was made or granted.

13. The evidence before the Tribunal is not sufficiently detailed for it to be satisfied the applicant and his family was targeted and harmed by his wife’s family due to being from a different caste and his marriage and relationship with her. On the evidence before it the Tribunal is not satisfied the applicant and/or his family suffered harm because he married a girl from a different caste. The Tribunal is not satisfied the applicant’s family has many opponents and enemies who want to see them disgraced. The Tribunal is not satisfied the applicant and/or his family were threatened or attacked or that the police refused to assist, prior to the applicant leaving India to come to Australia.

14. On the evidence before it the Tribunal is not satisfied there is a real chance the applicant will be physically harm or tortured or suffer serious harm or harm of any kind, from his in-laws or conservative relatives, or any one, if he returns to India now or in the reasonably foreseeable future. While the Tribunal accepts the applicant has been living in Australia since 2008, on the evidence before it, the Tribunal is not satisfied there is a real chance the applicant will suffer significantly, or suffer serious harm, or harm of any kind, because he has been living in Australia for a long time, if he returned to India now in the reasonably foreseeable future. On the evidence before it the Tribunal is not satisfied there is a real chance the applicant will be killed or kidnapped or hurt or tortured due to religious differences and tensions in India, or that he will suffer serious harm or harm of any kind, for that reason. On the evidence before it the Tribunal is not satisfied the authorities in India will not protect the applicant from harm because they are not good at giving protection to normal everyday people, if the applicant returns to India now or in the reasonably foreseeable future.

15. On the evidence before it, the Tribunal is not satisfied that there is any basis for the applicant to fear harm in India on return. The Tribunal is not satisfied there is a real chance the applicant will face serious harm, or harm of any kind, for the reasons he has claimed, if he returned to India now or in the reasonably foreseeable future. Therefore the Tribunal is not satisfied that the applicant has a well-founded fear of persecution.

16. Having considered the applicant’s claims individually and cumulatively, 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).

    Complimentary Protection

17. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criteria for the grant of a protection visa pursuant to the complementary protection criteria.

18. In this particular case, the applicant’s claims are unsubstantiated and without further detail amount to mere assertions. The applicant did not attend a hearing at which the Tribunal would have sought further details about his claims for protection.

19. As noted above, the evidence before the Tribunal is not sufficiently detailed for it to be satisfied the applicant and his family was targeted and threatened and harmed because he married a girl from a different caste. On the evidence before it the Tribunal is not satisfied the applicant and/or his family suffered harm because he married a girl from a different caste. The Tribunal is not satisfied the applicant’s family has many opponents and enemies who want to see them disgraced. The Tribunal is not satisfied the applicant and/or his family was threatened or attacked or the police refused to assist, prior to the applicant leaving India to come to Australia. On the evidence before it the Tribunal is not satisfied there is a real risk the applicant will be physically harmed or tortured or suffer significant harm or harm of any kind, from his in-laws or conservative relatives, or any one, if he is returned to India. While the Tribunal accepts the applicant has been living in Australia since 2008, on the evidence before it, the Tribunal is not satisfied there is a real risk the applicant will suffer significantly, or suffer significant harm, or harm of any kind, because he has been living in Australia for a long time, if returned to India. On the evidence before it the Tribunal is not satisfied there is a real risk the applicant will be killed or kidnapped or hurt or tortured due to religious differences and tensions in India, or that he will suffer significant harm or harm of any kind for that reason. On the evidence before it the Tribunal is not satisfied there is a real risk the authorities in India will not protect the applicant from harm because they are not good at giving protection to normal everyday people.

20. Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal is not satisfied there is a real risk the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subjected to torture, or cruel or inhuman treatment or punishment; or subjected to degrading treatment or punishment, if he is returned to India.

21. On the evidence before it, the Tribunal is not satisfied 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 that the applicant will suffer significant harm.  Therefore the applicant does not satisfy the criteria under s.36(2)(aa).

    CONCLUSION

22. 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 s.36(2)(a) or s.36(2)(aa).

23. 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

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

    Chris Thwaites
    Member  22 March 2016

    RELEVANT LAW

25. 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

26. 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).

27. 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.

28. 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.

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

30. 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.

31. 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.

32. 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.

33. 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.

34. 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.

1. 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

2. 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’).

3. ‘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.

4. 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

5. 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.