1500807 (Refugee)

Case [2016] AATA 4157

1500807 (Refugee) [2016] AATA 4157 (14 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1500807

COUNTRY OF REFERENCE:                  India

MEMBER:Nicola Findson

DATE:14 July 2016

PLACE OF DECISION:  Perth

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

Statement made on 14 July 2016 at 1:27pm

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

    Background and Protection Claims

  3. The Tribunal has before it the Department’s file relating to the applicant.  The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.

  4. In his application for a protection visa, the applicant, who is [age] years old, indicated that he is a Sikh from Jalandhar, Punjab.  The applicant indicated that he speaks, reads and writes English, Hindi and Punjabi.

  5. The applicant departed India on a valid passport and entered Australia [in] July 2008, as the holder of a student visa. 

  6. As to the questions on the application asking why he left India and what he fears will happen to him if he goes back, the applicant’s states his parents wanted him to study [subject] in Australia and make a career in this field.  He states that there were no problems in his life until after he arrived in Australia:  “I was studying hard and everything was going smoothly.  I visited India 2-3 times”.  The applicant states that problems for him started when his parents arranged for him to marry a girl in 2011.  He states: “A few months after getting married in 2011, I found out my ex-wife was having an affair.  It was with the same man who is her current boyfriend.  When I found out I confronted her and told her to end her relationship.  She replied that I can’t stop her from seeing him as her parents forced her to marry me.  She told me that her boyfriend is in [Country 1] and he has … money, resources and political connections in India.  She also mentioned that he has the power to do anything he likes so she told me to just return to Australia.  Her [Relative A] visited me one day whilst in India.  He threatened me.  He threatened that were I to leave her, her has the power to place fake charges…

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AGLC
1500807 (Refugee) [2016] AATA 4157
Case
[2016] AATA 4157
Decision Date

CaseChat Overview and Summary

The applicant, an Indian national, sought review of a decision to refuse him a protection visa. The applicant had arrived in Australia in 2008 on a student visa and subsequently experienced marital difficulties in India. These difficulties, which he alleged involved threats from his ex-wife's family and her boyfriend, led him to fear returning to India. The Administrative Appeals Tribunal (AAT) considered the applicant's claims and the material before it, including the delegate's decision and further evidence presented by the applicant.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under the Migration Act 1958 (Cth). This involved assessing whether the applicant had a well-founded fear of persecution or harm if returned to India, and whether the Australian authorities were unable or unwilling to protect him from such harm. The Tribunal also had to consider the applicant's eligibility under section 36(2) of the Act, which outlines the requirements for granting a protection visa.

The Tribunal's reasoning focused on the applicant's stated fears of harm from his ex-wife's family and her boyfriend, including allegations of threats, potential false imprisonment, and corruption within the Indian police force. The applicant claimed that his ex-wife's relative was a police officer, which he believed would facilitate unlawful arrest and imprisonment. However, the Tribunal noted that there was no suggestion that the applicant satisfied the criteria under section 36(2) by being a member of the same family unit as a person who held a protection visa. This specific ground for satisfying the criterion in section 36(2) was not met.

The Tribunal concluded that the applicant did not satisfy the criterion in section 36(2) of the Migration Act 1958 (Cth). Consequently, the Tribunal affirmed the delegate's decision to refuse to grant the protection visa.

Orders

Orders of the court

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Background

Background to the litigation

The applicant, who claims to be a citizen of India, applied for the visa [in] January 2014 and the delegate refused to grant the visa [in] December 2014. Background and Protection Claims The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. In his application for a protection visa, the applicant, who is [age] years old, indicated that he is a Sikh from Jalandhar, Punjab. The applicant indicated that he speaks, reads and writes English, Hindi and Punjabi. The applicant departed India on a valid passport and entered Australia [in] July 2008, as the holder of a student visa. As to the questions on the application asking why he left India and what he fears will happen to him if he goes back, the applicant’s states his parents wanted him to study [subject] in Australia and make a career in this field. He states that there were no problems in his life until after he arrived in Australia: “I was studying hard and everything was going smoothly. I visited India 2-3 times”. The applicant states that problems for him started when his parents arranged for him to marry a girl in 2011. He states: “A few months after getting married in 2011, I found out my ex-wife was having an affair. It was with the same man who is her current boyfriend. When I found out I confronted her and told her to end her relationship. She replied that I can’t stop her from seeing him as her parents forced her to marry me. She told me that her boyfriend is in [Country 1] and he has … money, resources and political connections in India. She also mentioned that he has the power to do anything he likes so she told me to just return to Australia. Her [Relative A] visited me one day whilst in India. He threatened me. He threatened that were I to leave her, her has the power to place fake charges on me and jail me for life. It was then that I decided to come back to Australia and continue my studies. Because of these problems, I was unable to concentrate on my studies as well as receiving constant emails/[social media] messages from my ex-wife’s family and her boyfriend to return to India in order to sort out the problem. I feel safe in Australia therefore I decided I should divorce her in order to sole the problem. The problem keeps getting bigger as they’re starting to harass my immediate family eg my siblings. After living in Australia I realised that this is the best country for me to spend the rest of my life and there is no political corruption here. I am planning to study and live a safe life for a positive future.” He states: “My ex-wife’s family are rich people and have relatives involved in politics and the police force. In the past, I filled out a police report when my ex-wife’s boyfriend was threatening me. The cops were making fun of me. The next day, the police arrested my father on a fake accusation and held him in the police’s office for [number] days. We had to pay INR [amount] to the policeman who wanted a bribe in order to get him released from the cell. I think the authorities in India are unable to protect me just as they regularly fail to protect other Indians in their country. So much corruption exists within the police force and I feel they will not give me ultimate protection were I to return to India. He states: “I fear returning back to India due to the fact that my in-laws and my ex-wife’s boyfriend are still trying to find me and are waiting for me to return to India. They might kidnap me and physically assault me. Another possibility is that they might liaise with the Indian police to unlawfully arrest me and place me in jail, because my ex-wife’s [Relative A] is a cop”.

Evidence

Evidence Before The Court

The applicant applied to the Refugee Review Tribunal on 22 January 2015, for a review of the delegate’s decision. The Tribunals Amalgamation Act (Cth) 2015 took effect on 1 July 2015. Transitional provisions of that Act had the effect that an application for review to the Refugee Review Tribunal (now abolished) is taken to be an application to the Administrative Appeals Tribunal. Evidence provided at Tribunal hearing The applicant appeared before the Tribunal on 3 March 2016, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was represented in relation to the review by his registered migration agent, [named]. However, his representative did not attend the hearing. The applicant confirmed that he holds a passport issued by the Republic of India and the passport expires [in] 2017. The applicant confirmed to the Tribunal that he was born and raised in Jalandhar, Punjab. The applicant told the Tribunal that his father was at least [age] years old and a retired [occupation]. His mother was over [age] years old and has worked all of her life as [an occupation]. The applicant has [various siblings], all of whom are older than him. All of the applicant’s [siblings] are married and living with their families in the Jalandhar district. [One sibling] is married and lives with his parents. [This sibling] is employed as [an occupation]. The applicant told the Tribunal that he maintains regular contact with his family. They speak by telephone at least once a week. The applicant told the Tribunal that he does not have any family in Australia. The applicant told the Tribunal that when he had completed his secondary school studies, he completed a diploma in [subject] at College. This took one and a half years. After that, the applicant worked at a company called [name], in a [occupation] role. The applicant told the Tribunal that in 2008, when he arrived in Australia, it was his intention to complete his studies in [subject] and then return to India to set up his own business. The applicant told the Tribunal that when he first arrived in Australia, he commenced studying [subject] at [a named] University. He said that it was his intention to complete these studies and return to India to set up a business. However, after 6 months, he decided he did not want to pursue this field any longer. Instead he decided to do [a trade] course at a College in [Town 1]. He explained to the Tribunal that he wanted to do physical work. He qualified with his trade after 2 years. After that, he was granted a subsequent student visa and he enrolled in a Certificate 4 in [subject]. However, he did not complete this course and his visa was ultimately cancelled, for non-attendance in 2011. The applicant told the Tribunal that he applied to his College for leave, to return to India in order to marry, but the College maintains that they did not receive his application for leave. Further, the applicant said that from the outset, there were problems in the marriage, and these problems resulted in his study falling by the wayside. He could no longer concentrate, and only managed to complete one term of his Certificate.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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