1502608 (Refugee)

[2016] AATA 3671

1502608 (Refugee) [2016] AATA 3671 (1 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1502608

COUNTRY OF REFERENCE:                  India

MEMBER:Paul Windsor

DATE:1 April 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 01 April 2016 at 10:19am

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] October 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 23 February 2015.

4. On 12 February 2016 the Tribunal wrote to the applicant advising that it had considered 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 evidence and present arguments at a hearing commencing on 4 March 2016.  The letter advised the applicant that if he did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal.  The applicant responded on 18 February 2016 indicating that he would be attending the scheduled hearing.  On 3 March 2016, the applicant contacted the Tribunal providing a medical certificate indicating that he had a medical condition necessitating his absence from work from 3-4 March.

5. The applicant was subsequently invited to appear before the Tribunal on 8 March, 11 March, 24 March, 29 March and 31 March 2016.  On each occasion the letter from the Tribunal advised the applicant that if he did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal.   The applicant responded to the invitations of 8 and 11 March indicating that he would attend the hearing.  However, on 7 March, 10 March and 23 March the applicant again sought postponement of the hearing on the grounds of illness, providing a medical certificate on 7 March indicating that he had a medical condition necessitating his absence from work from 7-8 March; providing a medical certificate on 10 March indicating that he had a medical condition necessitating his absence from work from 11-22 March; and providing a medical certificate on 23 March indicating that he had an illness and will be unable to attend work from 23-24 March.  The applicant was then invited to attend a hearing on 29 March, later rescheduled by the Tribunal to 31 March 2016, due to the unavailability of a suitable interpreter.  The applicant responded indicating that he would attend on both the original    (29 March) and rescheduled date (31 March).  However, the applicant did not attend the Hearing scheduled for 11:30 am on 31 March 2013.

6. The applicant has not contacted the Tribunal to explain his non-attendance at the hearing scheduled for 11:30 am on 31 March 2016.  This follows a period of ongoing engagement with the Tribunal since the Tribunal first wrote to the applicant on 12 February 2016 requesting that he attend a hearing.  The most recent hearing invitation letter of                  24 March 2016 also advised the applicant that if he is not able to attend the hearing he should advise the Tribunal as soon as possible and that the Tribunal will only change the date if satisfied that the applicant has a very good reason for being granted an adjournment.  The applicant has not contacted the Tribunal to request a further postponement of the hearing or to explain his absence, nor has the applicant sought to engage further in the review process, for example through the provision of further written submissions.  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.

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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).

9. 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.

10. 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’).

    Mandatory Considerations

11. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal took 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

12. The applicant claims to be a citizen of India who was born in [Town 1], Punjab state, on [date].  According to his Protection visa application[1] he speaks, reads and writes Punjabi, English and Hindi.  He claims he was married [in] April 2012.  He departed India legally [in] April 2007 and arrived in Australia [the next day].

    [1] See folios 52-55 of Departmental file [number].

    Summary of claims from the Protection visa application

13. The applicant submitted a certified copy of a marriage certificate[2] indicating that he was married [in] April 2012 to [his wife], who was born in [Country 1] [in] January 1990. 

    [2] See folio 25 of Departmental file [number].

14. The applicant’s claims from his Protection visa application[3] lodged [in] October 2014 can be summarised as follows:

    ·     Initially he left India to study in Australia.

    ·     He was attracted to [his wife], an Australian citizen of [Country 1] descent, and they decided to marry.  He spoke to his parents about this but his parents refused to agree to the marriage.  They wanted him to get married to a girl from his community but he refused.  As he was committed to [his wife] they proceeded to get married [in] April 2012. 

    ·     His parents and relatives are threatening him over the phone that if he returns to India they will kill him.  They are mentally torturing him and he feels very stressed.  He avoids taking calls from private numbers.  He has not returned to India since he came to Australia and feels if he returns he will be mistreated and killed by his parents and relatives.

    ·     They will mistreat him because he married against his parent’s wishes.  They wanted him to marry a girl from his community only, but he refused to do so.

    ·     The authorities in India will not protect him as they will say it is a family matter. 

    ·     He does not have proof of his family’s threats.

    [3] See folios 50-52 of Departmental file [number].

    Findings and reasons

15. The issues in this review are whether there is a real chance that, if the applicant returns to India, he will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to India, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of Migration Act.

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

    Delegate’s decision

17. The delegate of the Department of Immigration and Border Protection accepted that the applicant is married to [his wife], who was born in [Country 1], but found the remainder of the information provided by the applicant to be vague and unsubstantiated. Giving consideration to the delay in the applicant seeking protection in Australia from the time of his marriage in April 2012, the lack of information provided by the applicant regarding his circumstances, and his decision not to seek an interview, the delegate did not accept the applicant’s claims as credible or genuine. The delegate found that the applicant does not have a genuine subjective fear of being persecuted in India and therefore does not meet the criteria for the grant of Protection visa under s36(2)(a). The delegate also was 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 be subject to significant harm.

    Applicant’s identity

18. On the basis of the copy of the applicant’s Indian passport provided to the Department[4], the Tribunal accepts that the applicant is a citizen of India and that his identity is as he claims it to be.  The Tribunal accepts that India is the applicant’s country of nationality for convention purposes and is the applicant’s ‘receiving country’ for complementary protection purposes.

    Consideration of claims

    [4] See folios 56-57 of Departmental file [number].

19. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

20. The applicant has made generalised claims regarding being at risk of serious harm from his family and relatives because he has married an Australian citizen of [Country 1] background, rather than a girl from his community, against the wishes of his parents.  He claims to have received threatening phones calls from his parents and relatives saying that if he returns to India they will kill him.  He feels they will act on these threats if he returns to India and he will not be helped by the authorities in India.

21. The applicant has not provided relevant detail in support of his claims.  He has not provided information regarding when he first met [his wife], when they commenced a relationship and when they decided to marry.  He has not indicated when he spoke to his parents regarding the relationship, how they reacted and why he thought they reacted that way.  He has not indicated who in his family has threatened him, when the threats were received, and on what basis he considers they would carry out these threats.  He claims that his family and relatives have been ‘mentally torturing’ him but has not indicated what he means by this and how and when they have done this.  He has not indicated whether he has actually sought the assistance of the Indian authorities in relation to any threats of harm received and, if so, what their response was.  The applicant has not indicated whether he is still legally married to, or in a relationship with, [his wife].  He has not provided any supporting statements from [his wife], and, in his responses to the Tribunal’s invitations to him to attend a hearing, he did not indicate that he wished her to appear as a witness on his behalf, or that she would be attending the hearing as a support person or observer.

22. The applicant provided the Tribunal with a copy of the delegate’s decision record[5], but has not sought to address any of the concerns raised by the delegate in the decision record.  Among other matters, the applicant has not sought to address the delegate’s comments that it is unclear:

    ·Whether he is still married.

    ·How his relatives are threatening him if he is not in contact with them (as he indicated at question 64 of his form 866C).

    ·Why he chose to appeal to the Migration Review Tribunal in May 2012 a departmental decision to refuse him a Class VC Subclass 485 (Skilled Graduate) visa, rather than submit a Protection visa application, if he had been threatened with death as a result of his marriage in April 2012.

    ·Why he chose not to attend an interview with the departmental delegate, after receiving a letter from the department sent [in] October 2014, which advised, inter alia, that his application may be decided without an interview and that he should contact the department to make appropriate arrangements if he wanted to discuss his claims.

    ·Why he did not apply for a Partner visa application if he was in a genuine relationship with an Australian citizen partner.

    ·Why he has provided vague and unsubstantiated claims and then chosen not to be interviewed and have those claims tested.

    [5] See folios 12-16 Tribunal file 1502608.

23. The delegate also commented that ‘I consider that the applicant has submitted his Protection visa application for the purpose of delaying his stay in Australia and not because he has a genuine fear of persecution or significant harm on returning to India.’  The applicant has not taken the opportunity through submissions to the Tribunal or through attending a hearing with the Tribunal to address this comment by the delegate, or the delegate’s subsequent finding that ‘The lack of information provided by the applicant combined with his repeated decision not to seek an interview leads me to reach a positive state of disbelief in relation to his overall case.  I therefore do not accept any of the applicant’s claims as credible or genuine.’ The Tribunal finds that the applicant’s failure to provide comment on the issues and concerns raised by the delegate, as detailed above, gives rise to significant concerns regarding his credibility.

24. Based on the marriage certificate provided by the applicant, the Tribunal accepts that the applicant legally married [his wife], who was born in [Country 1], [in] April 2012.  Because the applicant has not provided any statements about the relationship and there are no supporting documents from [his wife], and because the applicant did not attend an interview with the delegate or a hearing with the Tribunal where he could be questioned regarding the claimed relationship with [his wife], the Tribunal is not satisfied that this marriage indicates that the applicant was in a genuine relationship with [his wife] when they married [in] April 2012.  In this regard, if the applicant had attended the hearing, the Tribunal would have questioned the applicant regarding when he first met [his wife], when they commenced a relationship, when they decided to marry, whether they celebrated their marriage with any family (on [his wife’s] side) or friends, whether they ever lived together and, if so, for how long, why the applicant had not applied for a Partner visa, sponsored by [his wife], rather than a Protection visa, and whether he is still in a relationship with [his wife].  The Tribunal would also have asked him why [his wife] had not provided a statement in support of his application, or was not listed to give evidence at the hearing.  Based on the available evidence, the Tribunal does not accept that the applicant is, or ever was, in a genuine relationship with [his wife].  The Tribunal considers that the applicant’s marriage to [his wife] in April 2012 was undertaken in an attempt to achieve a migration outcome.

25. Accordingly, and noting that the applicant’s claims in this respect are vague and lacking in detail, the Tribunal considers that the applicant has concocted his claims that his family and relatives disapproved of his relationship with [his wife] and threatened to kill him as a consequence.  The Tribunal does not accept the applicant’s claims that his parents refused to agree to him marrying [his wife] and wanted him to marry a girl of their choosing from his community, but he refused; does not accept that his parents and relatives are threatening him that if he returns to India they will kill him; does not accept that his parents and relatives are mentally torturing him; and does not accept that if the applicant returns to India he will be mistreated and killed by his parents and/or his relatives.  The Tribunal therefore finds that there is not a real chance that the applicant will face persecution amounting to serious harm should he return to India, now or in the foreseeable future.

26. As the Tribunal has found that there is not a real chance that the applicant would suffer persecution should he return to India, the Tribunal finds that the applicant would not require the protection of the authorities in India.

    Does the applicant have a well-founded fear of persecution if he returned to India?

27. Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal does not accept that there is 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.

28. Accordingly, 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).

    Complementary protection

29. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).

30. Having regard to the findings of fact set out above, the Tribunal also does not accept 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, now or in the foreseeable future.  The Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

1. 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

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

   Paul Windsor
   Member