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1500744 (Refugee)

1500744 (Refugee)

Case [2018] AATA 3094 30 June 2018

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1500744 (Refugee) [2018] AATA 3094 (30 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1500744
COUNTRY OF REFERENCE:                  India
MEMBER:Brendan Darcy
DATE:30 June 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 30 June 2018 at 3:06pm

CATCHWORDS
Refugee – Protection Visa – India – Religion – Follower of the Jain religion – Member of the Bania caste – Property dispute – Victim of assault – Fears about criminals who are at large – Credibility concerns – Recusal request refused – Membership of the same family unit – Decision under review affirmed
Practice and procedure – Recusal request – Apprehended bias – Tribunal’s powers to obtain information – Role of an applicant's representative – Whether an interruption of a witness is giving evidence on behalf of that witness – Request refused

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 36, 65, 91R, 91S, 366A, 424, 425, 499
Migration Regulations 1994 (Cth), r 1.12, Schedule 2
CASES
Ahmed v MIMA [2000] FCA 1571
Applicant A v MIEA (1997) 190 CLR 225
DZACC v MIAC [2012] FMCA 314
Kathiravelu v MIMA [2000] FCA 1279
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v MZYRI [2012] FCA 1107
MIAC v SZIAI (2009) 111 ALD 15
MIMA v Rajalingam (1999) 93 FCR 220
MIMA v Sarrazola (1999) 95 FCR 517
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Prasad v MIEA (1985) 6 FCR 155
Rajaratnam v MIMA (2000) 62 ALD 73
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SHKB v MIMIA [2004] FCA 545
Subramaniam v MIMA (1998) FCA 305
SZBZJ v MIMIA [2004] FMCA 728
SZLGP v MIAC (2009) 181 FCR 113
SZMWI v MIAC (2009) 111 ALD 160
SZNIL v MIAC [2009] FMCA 883
SZQII v MIAC (2012) 126 ALD 479
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

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of the Republic of India, applied for the visas on 28 April 2014 and the delegate refused to grant the visas on 18 December 2014.
In this decision, the primary or first named applicant [is] referred to as the first applicant; the secondary or second named applicant [is] referred to as the second applicant, or the first applicant’s wife.
The applicants appeared before the Tribunal on 10 March 2016 to give evidence and present arguments.
The applicants were represented in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1500744 (Refugee)

Details

AGLC: 1500744 (Refugee) [2018] AATA 3094
Case: [2018] AATA 3094
Decision Date: 30 June 2018

CaseChat Overview and Summary

This matter concerned two applicants seeking protection visas for Australia. The dispute arose from the first applicant's claims of being a follower of the Jain religion and a member of the Bania caste in India, who had been subjected to a violent property dispute and subsequent threats from criminals. The applicants alleged that these individuals were at large and posed a continuing danger to them, particularly given the perceived inability of Indian authorities to provide adequate protection. The case was heard by Brendan Darcy.

The primary legal issues before the court were whether the applicants had established a well-founded fear of persecution for a Convention reason, and whether they met the criteria for a protection visa under the relevant legislative provisions. Specifically, the court was required to assess the credibility of the first applicant's claims regarding the property dispute, the assault, the ongoing threats, and the alleged discriminatory motivation behind these actions, which were linked to his religious and caste identity. Additionally, the court considered the provisions relating to membership of the same family unit for the purposes of protection visa applications.

The court's reasoning involved a detailed consideration of the evidence presented by the first applicant, including his statutory declaration outlining the property dispute, the assault, and the subsequent threats to himself and his family. The court examined the legislative framework for protection visas, including the definition of "member of the same family unit" as defined in the Regulations. The court also addressed a request for recusal, finding no apprehended bias on the part of the Tribunal and determining that an interruption of a witness by a representative did not constitute giving evidence on behalf of that witness. Ultimately, the court affirmed the decision under review, indicating that the applicants' claims did not meet the threshold for establishing a well-founded fear of persecution.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if they are either a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spousal relationships. CONSIDERATION OF CLAIMS AND EVIDENCE The first applicant claims to be born on [date of birth] in the union territory of Chandigarh in India and to be a citizen of the Republic of India. The second applicant claims she was born in [year] in Rohtak in the Indian state of Haryana and claims also to be a citizen of the Republic of India. The first applicant claims to be able to speak, read and write Hindi, Punjabi and English. Both the first and the second applicants initially arrived in Australia on 26 September 2002 as the holder of a [temporary] visa. Since his initial arrival, the first applicant has departed and re-entered Australia 16 times. Those trips include [various countries]. Full lists of visits are on the Departmental decision record file.[1][1] [file number deleted] Folios 18-19. The first applicant's last entry into Australia was on 10 November 2010. The applicant's last [temporary] visa expired on 10 February 2011. Since then the first applicant has held a series of 12 bridging visas. The first applicant has had several visa applications refused, including [specified temporary] visas. The second applicant last departed Australia on 1 February 2011 for India and returned to Australia on 25 March 2011. On 28 April 2014 the applicants made valid applications for Class XA Subclass 866 protection visas and were granted associated bridging visas in association with the applications. Written claims The first applicant's claims are contained in a statutory declaration dated 22 July 2014 and are summarised below:· The first applicant claimed to belong to the Bania (or Baniya) caste and that he was a follower of the Jain religion; · In December 2005 the first applicant purchased a property in [Mohali district], as an investment;· In April 2008 he was contacted by a loan company and told that [Mr A], the man who he had purchased the property from, had raised a loan against the same property. The first applicant was asked to return the whole amount or surrender the property;· After contacting the police, on 14 June 2008, the first applicant was attacked by [Mr A] and several other men outside the front of his house. The assailants had between them [various weapons]. The first applicant claimed he had been beaten with significant wounds in 13 places and three fractures; · The first applicant contacted [Mr A] who told him he had nothing to do with it and that the first applicant should repay the loan. [Mr A] told the first applicant that he would face 'dire consequences' if he sought a refund of the money;· The first applicant claimed he was hospitalised and that on release he lived at the residence of the second applicant’s parents; · Two of the first applicant's attackers were arrested and charged, however the applicant continued to receive threats. As soon as he was recovered from his injuries, the applicant fled India to Australia on the first of his numerous [temporary] visas on 5 August 2008; · The first applicant returned to India for business since the incident but received threats while he was there; ·The first applicant returned to Australia on 11 August 2009. This was the last time the applicants left India. The first applicant has been told that his business has been broken into and associates of his attackers have been threatening his family in India;·The first applicant claimed that the court proceedings were dismissed by the court in late 2013, leaving the alleged assailants in India completely free; ·Since then the assailants have been threatening and harassing his family in India, telling relatives that they will find the first applicant and kill him;·The family of the second applicant live next door to the applicants’ residence and the sister of the second applicant lives in the applicants’ residence – all of which have been visited by [Mr A] and others; ·The first applicant was too scared to return to India as he fears that he will be killed by members of this group that [Mr A] belonged to. He states that the police can give him no protection from this group;·The first applicant claims his family is essentially held hostage by [Mr A] and the alleged assailants; ·The first applicant also claims the group of men is motivated by hatred for him as he belongs to the Jain religion and is a member of the Bania caste. According to the written claims, the assailants say that Banias should no longer be part of society and should be eliminated and that along with the Brahmin caste, the Banias control everything; ·The authorities in India, it is claimed, cannot protect the applicants from such people as protection in India is superficial and the police did not charge the assailants for murder despite medical reports and evidence of grievous injuries.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

1500744 (Refugee) [2018] AATA 3094

Cases Citing This Decision

No citing cases yet.

Cases Cited

Minister for Immigration and Citizenship v MZYRI [2012] FCA 1107
Citation 1 (Para 23)

…at [10]). See also MIAC v MZYRI [2012] FCA 1107 (Jagot J, 16 October 2012) at [33] where the court stated that s.91R(1) does not permit a decision-maker to disregard a claim on the basis of an unstated assumption that there is a simple dichotomy between persecution by reason of self-interest and for a Convention r…
DZACC v Minister for Immigration [2012] FMCA 314
Citation 2 (Para 23)

…er, contrast DZACC v MIAC [2012] FMCA 314 (Cameron FM, 20 April 2012) for an example of circumstances where it was open to the Reviewer to consider multiple motivations but conclude that the harm was motivated by a non-Convention reason. The claimant had alleged he would be persecuted by the family of his girlfrie…
SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470
Citation 3 (Para 23)

…of the case may be so. In that case the relevant circumstances giving rise to an obligation arose were that the Tribunal had before it Department file notes facilitating the making of the enquiry, the class of visa sought, and the impact of the inquiry on the assessment: at [49]-[50]. 129. The applicant’s representat…
SZNIL v Minister for Immigration [2009] FMCA 883
Citation 4 (Para 23)

…SZLGP v MIAC (2009) 181 FCR 113 where the Court held that although the mere extension of an invitation by the applicant to conduct an enquiry was not of itself sufficient to make it an obligation, the circumstances of the case may be so. In that case the relevant circumstances giving rise to an obligation arose we…
SZBZJ v Minister for Immigration [2004] FMCA 728
Citation 5 (Para 23)

…1999) 95 FCR 517; SZBZJ v MIMIA [2004] FMCA 728 (Lloyd-Jones FM, 11 November 2004); and SHKB v MIMIA [2004] FCA 545 (Selway J, 5 May 2004), where Selway J held that the Tribunal in attempting to draw a distinction between a Convention-based reason and retribution committed jurisdictional error. [19] Rajaratnam v M…
SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545
Citation 6 (Para 23)

…ovember 2004); and SHKB v MIMIA [2004] FCA 545 (Selway J, 5 May 2004), where Selway J held that the Tribunal in attempting to draw a distinction between a Convention-based reason and retribution committed jurisdictional error. [19] Rajaratnam v MIMA (2000) 62 ALD 73 at [48] per Finn and Dowsett JJ. Justice Moore…
Applicant A91 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1388
Citation 7 (Para 23)

…ce of its own expert based on a suspicion which had not been put to the expert and there was no impediment to further enquiry from the expert. See also SZNIL v MIAC [2009] FMCA 883 (Raphael FM, 9 September 2009) where an applicant supplied the Tribunal with the telephone number for a witness whose statement the Tri…
Selvadurai v Minister for Immigration and Multicultural Affairs [2002] FCA 342
Citation 8 (Para 23)

…ion visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347). The Tribunal accepts the applicants’ claim that he was seriously harmed and hospitalised in April 2008 but did not apply for a protection visa until April 2014 –…
Ahmed v Minister for Immigration and Multicultural Affairs [2000] FCA 1571
Citation 9 (Para 23)

…ALD 73, applied in Ahmed v MIMA [2000] FCA 1571 (Mathews J, 8 November 2000); Kathiravelu v MIMA [2000] FCA 1279 (Lindgren J, 11 September 2000); MIMA v Sarrazola (1999) 95 FCR 517; SZBZJ v MIMIA [2004] FMCA 728 (Lloyd-Jones FM, 11 November 2004); and SHKB v MIMIA [2004] FCA 545 (Selway J, 5 May 2004), where Selwa…
Kathiravelu v Minister for Immigration and Multicultural Affairs [2000] FCA 1279
Citation 10 (Para 23)

…ember 2000); Kathiravelu v MIMA [2000] FCA 1279 (Lindgren J, 11 September 2000); MIMA v Sarrazola (1999) 95 FCR 517; SZBZJ v MIMIA [2004] FMCA 728 (Lloyd-Jones FM, 11 November 2004); and SHKB v MIMIA [2004] FCA 545 (Selway J, 5 May 2004), where Selway J held that the Tribunal in attempting to draw a distinction be…
Minister for Immigration and Multicultural Affairs v Sarrazola [1999] FCA 1134
Citation 11 (Para 23)

…ptember 2000); MIMA v Sarrazola (1999) 95 FCR 517; SZBZJ v MIMIA [2004] FMCA 728 (Lloyd-Jones FM, 11 November 2004); and SHKB v MIMIA [2004] FCA 545 (Selway J, 5 May 2004), where Selway J held that the Tribunal in attempting to draw a distinction between a Convention-based reason and retribution committed jurisdicti…
Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719
Citation 12 (Para 21)

…is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).…
Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4
Citation 13 (Para 23)

…oups relate to any of the other four nexus reasons mentioned in the Refugees Convention. 111. Thirdly, based on the adverse credibility findings about the applicants’ travel and visa histories, and because the Tribunal does not accept the applicants’ and the witnesses’ accounts that the applicants were subject to ong…
Selvadurai v MIEA & Anor [1994] FCA 1105
Citation 14 (Para 22)

…ebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at [348] per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547).…
Minister for Immigration and Ethnic Affairs and Mcillhatton v Guo Wei Rong and Pam Run Juan
Citation 15 (Para 18)

…The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482: … care must be taken that an over-…

Legislation Cited

Migration Act 1958 (Cth) 36, 366A, 424, 425, 499, 5(1), 65, 91R,...
10 mentions (from Para 1)
Migration Regulations 1994 (Cth) 1.12
2 mentions (from Para 6)