1500705 (Refugee)

[2016] AATA 3670

1500705 (Refugee) [2016] AATA 3670 (8 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1500705

COUNTRY OF REFERENCE:                  India

MEMBER:Amanda Paxton

DATE:8 April 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 08 April 2016 at 11:07am

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).

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

3. On 16 March 2016 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 8 April 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 1 April 2016, the applicant was sent an SMS reminder to his mobile telephone providing the details of the scheduled hearing and inviting the applicant to attend. A second SMS reminder was sent on 7 April 2016. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. Nor did the applicant respond to the Department’s letter inviting him to contact the delegate to arrange an interview. In view of the applicant’s lack of follow up of his case at the primary stage, the absence of any contact with the Tribunal since lodging his review application and his lack of response to the hearing invitation, 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.

   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 has taken 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

19. The applicant made the following claims in his application:

    ·     I left India in 2007 on a [temporary] visa, to [Australia]. My main intention was to leave that country and get permanent settlement in Australia. I was facing lot of problem in my own country. I returned to India once after coming here, I was always victim of abuse and threats.

    ·     My family is very active in politics and we have many allies and friends. My other family members including myself are also active members of the same party. However, our family has many opponents and enemies who want to see our disgrace.

    ·     Unfortunately, the use of threats and violence to deter people from political standing is very common in India. They have also targeted our family in the process. Thus my family has advised me it is not safe for me to stay there due to fears I may be harmed due to my political inclination and I should try to remain in Australia if possible. As such, I left my country and do not want to return back.

    ·     My family and I have received various threats. Some of my family members & me have been attacked in the past but luckily I have not been seriously harmed. In all the incidents we have not received any help from the police.

    ·     If I go back to India, I fear that I will be physically harmed or tortured due to political enmity with my family. I have been living in this country for a long time and it will be very difficult for me to go back and make a living for me in such a violent and dangerous place. I have been used to the peaceful and fair system of Australia and I believe I will suffer significantly if I go back.

    ·     I believe that the people from conservative political parties and conservative relatives will harm try to me when I go back.

    ·     As mentioned in my previous answers, killings and kidnappings due to religious differences and tensions are very common in India. I have seen and heard of many instances of people being kidnapped, hurt and tortured who are in similar situation to me.

    ·     Since my family have already been threatened and attacked I am worried the same may occur to me and my family. I feel that it would be best for me and my family if I was allowed to stay here.

    ·     I do not think I will be protected by the authorities of India as they are not good at giving protection to Normal everyday people.

    Country of reference

20. The applicant has claimed to be a citizen of India. He has provided a copy of his Indian passport that supports his claim. On the basis of this evidence, the Tribunal finds that he is a national of India for the purposes of the Convention and that this country is his receiving country under s.36(2)(aa) and s.5 of the Act.

    Assessment of claims

21. 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.) The applicant’s claims are very vague and lack detail. Had he attended a hearing, the Tribunal would have explored his claims with him and sought further information from him on a range of details relevant to his stated claims.

22. The applicant’s failure to attend the hearing when requested to do so however meant the Tribunal has not been able explore his claims with him or have the ability to seek further information about the basis on which he has sought protection. The applicant claims to have faced problems in India and to have been attacked and been the victim of abuse and threats. Had the applicant attended the hearing, the Tribunal would have sought details about the applicant’s claimed experiences of abuse, threat and harm, the reasons for these events, and details of the perpetrators. However, as the applicant did not attend, the Tribunal was unable to do this. The applicant has provided no detail about his reasons for this claim, and his claims in this respect are so limited as to raise serious credibility concerns.

23. The applicant has claimed that he and his family are active in politics and that he has been targeted for this reason. He claims to fear he will be physically harmed and tortured due to his family’s political enmities. The applicant has provided no details about his political involvement, the party he supports, the nature of his and his family’s political activity, or the identity of the people, other than they are from the conservative side of politics, who are targeting him. Had the applicant attended the hearing, the Tribunal would have explored and obtained details about these claims. As the applicant did not attend, the Tribunal was unable to do this. The applicant has provided no detail about his reasons for this claim, and his claims in this respect are so limited as to raise serious credibility concerns.

24. Had the applicant attended the hearing, the Tribunal would also have asked the applicant to explain the delay in lodging his protection visa application, noting that the applicant arrived in Australia in 2007 but did not apply for protection until August 2014. This is a significant delay, and the Tribunal is very concerned by it. The Tribunal considers that had the applicant had a fear of harm of return to India he would have lodged his protection visa far earlier than the eventual date. He has not attended to explain this delay.

25. The complete lack of detail in the application, and the credibility concerns noted above, lead the Tribunal consider that the applicant’s claim to fear harm from political opponents has no actual factual basis. In the absence of more information, the Tribunal is not satisfied that the applicant has been harmed in the past, or has a real chance or real risk of harm in the future.  On the information available to it, the Tribunal does not accept that the applicant has a genuine subjective fear of serious harm from political opponents or anyone else because his family is active in politics. On the evidence before it, the Tribunal does not accept there to be a real chance that the applicant faces serious harm or a real risk of significant harm from political opponents if he returns to India now or in the foreseeable future.

26. The applicant has also claimed that he has been living in Australia for a long time and it will be very difficult for him to return to living in such a violent and dangerous place. He claims that he has been used to the peaceful and fair system of Australia. The Tribunal accepts that the applicant has now been in Australia for a considerable time, nine years. The Tribunal accepts that in this time, his has become used to the Australian environment. In considering this claim, the Tribunal had regard to s.91R(1) of the Act and found that the applicant’s claimed was not for reason of a Convention ground. The Tribunal finds that the applicant does not face a real chance of serious harm on this basis.

27. The Tribunal also assessed this claim under the complementary protection criterion. Having regard to s.36(2B) of the Act, the Tribunal considered whether the risk of harm is one faced by the population generally and is not faced by the applicant personally. The Tribunal notes country information indicates that violence occurs in India. However, on the very limited evidence before it, the Tribunal is satisfied that the applicant faces the same risk of violence as the population generally and that this harm is not directed to him personally. On this basis the Tribunal does not accept that there is a real risk that the applicant will suffer significant harm as defined in s36(2)(B) of the Act.

28. The applicant also claims to fear killing and kidnappings due to religious differences and tensions. The applicant has not provided any details about how religious differences may affect him. The applicant has provided no detail about his reasons for this claim, and his claims in this respect are so limited as to raise serious credibility concerns. In this consideration, the Tribunal also notes that the applicant has identified as Hindu in his application and that country information indicates that Hindus form the majority of the population in India.[1]  Had the applicant attended the hearing, the Tribunal would have asked the applicant about his experiences as a Hindu in India. Based on the very vague and limited evidence before it, the Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm on this basis.

    [1] DFAT Country Report India, 15 July 2015

29. The applicant claims he will not be protected by the authorities in India as they are not good at giving protection to normal everyday people. Had the applicant attended the hearing, the Tribunal would have asked the applicant about his experiences in India, and why he believes that the authorities will not protect him, and why they had not protected him in the past. The applicant has provided no detail about his reasons for this claim, and his claims in this respect are so limited as to raise serious credibility concerns. In considering this claim, the Tribunal has also taken into account advice of the UK Home Office from February 2015, that in general, a person is likely to be able to access effective protection from the state.[2]  On this basis, the Tribunal does not accept the applicant’s claim that the authorities will not help him for any reason.

    [2] UK Home Office, Country Information and Guidance, India: Background information, including actors of protection, and internal relocation, February 2015

1. Considering the applicant’s individual circumstances, the Tribunal finds that he does not face a real chance of persecution in the reasonably foreseeable future for any reason. The applicant’s fear of persecution is not well-founded.

2. Considering the applicant’s individual circumstances, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to India that there is a real risk that he will suffer significant harm.

   CONCLUSION

3. 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).

4. 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).

5. 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

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

   Amanda Paxton
   Member