1501415 (Refugee)

[2016] AATA 3783

1501415 (Refugee) [2016] AATA 3783 (13 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1501415

COUNTRY OF REFERENCE:                  India

MEMBER:Nicola Findson

DATE:13 April 2016

PLACE OF DECISION:  Perth

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

Statement made on 13 April 2016 at 11:52am

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] March 2014 and the delegate refused to grant the visa [in] January 2015.

3. The applicant applied to the Tribunal for review of this decision on 30 January 2015. 

4. The applicant was represented in relation to the review by his registered [migration agent.]

5. On 11 February 2016, the Tribunal wrote to the applicant and informed him that it had considered all the material before it relating to his 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 commencing at 1:00pm on 11 April 2016.  

6. On 4 March 2016, the applicant’s registered migration agent wrote to the Tribunal and stated: “It has been informed by my client that he do not have any further documents or evidences to provide in regards to the claims made in his application.   Due to this reason he does not want to attend the hearing and has advised me to request the tribunal to make a decision on the basis of documents on file”.

7. Given that the applicant has provided his consent to the Tribunal deciding the review without him appearing before it, the Tribunal has proceeded to make a decision on the information before it.  

   RELEVANT LAW

8. 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

9. 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).

10. 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.

11. 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.

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

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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

19. 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’).

20. ‘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. 

21. 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

22. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The issue in this case is whether the applicant satisfies the criteria for a protection visa, and whether Australia is taken not to owe protection obligations to the applicant because of s.36(3) of the Act.   

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

    Background and Protection Claims

25. 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.

26. The applicant departed India on a valid passport and entered Australia [in] May 2009, as the holder of a [temporary] visa.  The applicant’s [temporary] visa ceased [in] June 2011, when the applicant had completed his studies. The applicant then applied for [another temporary] visa, which application was refused by a delegate of the Department and subsequently affirmed by the Migration Review Tribunal.  [In] September 2013, the applicant again applied for [another temporary] visa, but that application was deemed invalid because he was statutorily barred from making the application in the first place. 

27. The applicant has held a series of bridging visas, as well as remained in Australia for a short time unlawfully, since his initial [temporary] visa ceased.

28. [In] March 2014, the applicant lodged a Protection visa application, which is the subject of this review.

29. In his application for a Protection visa, the applicant declares that he was born in [Punjab], India on [date].  He also declares to have Indian citizenship and not to hold citizenship, or to be a national, of any other country.

30. 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 declares:

    “In October 2007, my [father] became [involved with the] BJP party from the Punjab region in India.

    Since then, my family and myself received a few threats from the Congress party, opposite political party of my father.

    The threats started at the beginning of November 2007.  My [sibling], [age] years old at this time, was receiving threats from three adults men who were waiting for [him/her] at the end of school day.  They were following [him/her] on her way home saying that our family should be careful or something bad would happen to us.

    Ten days after, my father went to the police station to inform them about my [sibling]’s problem.  But nothing was done, as the three men didn’t attack [him/her], and the threats that my [sibling] received couldn’t be proved.

    On December 2007, my [mother] started to receive letters on her mail box every morning from somebody who never signed.  On the letter, threats were written against my family.  It said that my father had to quite the [BJP party] or him and his family wouldn’t be safe anymore.

    Everyday the letters got more and more scary.  And at the end of December, we received a letter at home saying that they will kill my father and his family if he stays [with] the BJP party.

    On January 2008, the letters were no more in our mail box, but phone calls start to ring everyday at home.  Ten times per day, somebody with a masked voice called at my family home, threating my father, mother, [sibling] and myself.  The phone calls could happen anytime during the day or the night.  My father and mother tried to change their number but a couple of days after, the phone calls came back.  It also happen to ring on my father’s private mobile number, my mobile number and my friends mobile number.

    On the beginning of February 2008, my father went to police station to claim the threats and ask for a police protection.  But no favourable response was given to my family.  The police refused to give us any help or to give us protection.

    During 6 months, the phone calls kept on ringing at home and on mobile numbers of my family and friends.

    On September 2008, during a quite night at 2am, a few men came to our house and tried to break in.  They broke our windows and my father’s car which was parked in front of our house.  We called the police, but, because the vandals were already gone, they couldn’t prove that somebody really try to break in.

    On December 2008, my father told me that I should go overseas to do my further study and settle there.  So I decided to go to Australia to keep going with my studies.  That’s why I applied at [a college] in [Australia].  I applied on January 2009 and I got accepted 2 months later.

    I left India in May 2009 to come and live in Australia.  Meanwhile, my family received other threats and attacks.  Since 5 years I went back to India to see my family and was hopping that the situation will be better.  But that was not the case at all.  My family is still being the target of the attacks of the Congress party, even if my father is not [with] the BJP party anymore.

    I would like to stay in Australia because I know that if I come back to India, I wouldn’t be safe.  I know that in Australia I have a better and safer future than if I was still living in India.  That’s why I am applying for the Protection Visa.”

    The Delegate’s Decision

31. The applicant was interviewed by a delegate of the Department [in] December 2014. 

32. In a decision record, which was provided to the Tribunal by the applicant, the delegate sets out his findings and reasons for refusing to grant the applicant a protection visa.  In summary, the delegate expressed grave reservations in relation to the credibility of the applicant.  However, the delegate decided not to make a finding in respect of the applicant’s overall credibility because the delegate made relevant findings on the applicant’s statutory effective protection.  In particular, the delegate found that the applicant has access to effective state protection in Nepal by the operation of the bilateral residency treaty known as the Treaty of Peace and Friendship between India and Nepal.  The delegate went on to find that the applicant has a present right to enter and reside in Nepal.  The delegate then found that pursuant to s.36(3) of the Act, Australia is taken not to have protection obligations in respect of the applicant because the delegate found the applicant has not taken all possible steps to avail himself of the right to enter and reside, whether temporarily or permanently, in Nepal.

    FINDINGS AND REASONS

33. 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.)

34. In the present case, the applicant’s claims – as set out in paragraph 30 above – are general, vague and lacking in detail in a number of significant respects.  If the applicant had attended the hearing, the Tribunal would have explored his claims and sought further information from him on a range of details relevant to his claims.  For example, the Tribunal would have asked him for more details about:

    a.his father’s historical and current involvement with the BJP and the reasons why the applicant is being targeted, including specifically, why his father’s role in this party would be cause for the Congress party to inflict harm?

    b.the threats, including those contained in letters and those made by telephone, directed to him and other members of his family, since 2007; the attempted break in and vandalism of his father’s car in September 2008; the interaction with the police in relation to the threats; and whether he could provide any evidence to support this claim?

    c.what he fears will happen to him if he returns to India, including how it is that he knows he will be harmed; why he will be harmed; and who exactly he fears will harm him?

    d.the rest of his family in India and, in particular, what impact his father’s alleged political involvement has had on them?

    e.the possibility of relocating either within India or to Nepal?

35. If the applicant had attended the hearing, the Tribunal would have also discussed its concern about his visa history and his delay in lodging an application for protection.  The Tribunal notes that the applicant raised his protection claims almost 5 years after first arriving in Australia. It is also noted that the applicant returned to India on several occasions after first arriving in Australia, without incident. It is legitimate to take into account an applicant’s delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347).

36. The applicant’s failure to attend a Tribunal hearing to provide further evidence in support of his claims, does cast some doubt on the credibility of his claims and the genuineness of his fear of persecution in India.

37. On the limited evidence before it, the Tribunal is unable to be satisfied that the applicant’s father was involved in the BJP as claimed, or that the applicant and his family have been targeted as a result of his father’s actions arising out of his involvement in the BJP. In the absence of any more detailed information concerning the applicant’s claims, the Tribunal is not satisfied that he faces a real chance of persecution in India, or that there is any Convention basis for the harm feared.  The Tribunal finds therefore, that there is not a real chance that the applicant will suffer persecution amounting to serious harm, if he were to return to India now or in the foreseeable future.

    Complementary Protection

1. The Tribunal has also considered whether 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 he will suffer significant harm.  Given the limited evidence and lack of any detail of the claimed harm or incidents, the Tribunal does not accept that the applicant has suffered any harm in the past or that he will in the future.  The Tribunal is not satisfied the applicant faces a real risk of significant harm.

   Third Party Protection

2. The Tribunal is aware of the existence of information pertaining to the ability of Indian citizens to enter and reside in Nepal, arising from a Treaty between the two countries permitting a degree of freedom and movement and residence.  Given the findings of the Tribunal with respect to the applicant’s fear of harm in India, it has not been required to consider this issue further.

   CONCLUSIONS

3. 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.

   Nicola Findson
   Member