1502827 (Refugee)

[2016] AATA 3866

1502827 (Refugee) [2016] AATA 3866 (16 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1502827

COUNTRY OF REFERENCE:                  India

MEMBER:Sydelle Muling

DATE:16 May 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 16 May 2016 at 10:44am

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

3. On 31 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 13 May 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. On 9 May 2016, the Tribunal received an email from the applicant stating that he is unable to attend the hearing due to back pain and shoulder pain. Attached to the email was a certificate from [medical practice] dated [in] May 2016 certifying that the applicant attended the practice and will be unfit for any duties from [date] May 2016 to [date] May 2016. On 10 May 2016, the Tribunal wrote to the applicant advising that it  will not be postponing the hearing on 13 May 2016 on the basis of the medical certificate he had submitted from his chiropractor/doctor. The Tribunal requested evidence from his doctor advising what his condition is and how it affects his ability to attend a hearing and provide oral evidence. The Tribunal advised the applicant that if it did not receive this evidence prior to 13 May 2016 the hearing will proceed as scheduled. The Tribunal did not receive any further communication or correspondence from the applicant and he did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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.

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. 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’).

8. 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.

9. The applicant claims to be a citizen of India who was born in [city], Bihar on [date].  According to his protection visa application, he lived in [location], Jalandhar district, in Punjab from September 1988 to December 2007. He completed [number] years education and is fluent in English, Punjabi and Hindi. The applicant described his occupation before coming to Australia as student. He departed India legally [in] December 2007. He returned to India [in] February 2012 to visit his parents. The applicant was separated [in] August 2014 in [Australia].  

10. The applicant presented his claims in his protection visa application [in] September 2014 (folios 1 to 34 of the Department file [number]) and in a statement he submitted to the Tribunal.

11. The following statement made by the applicant was attached to his protection visa application:

    I am providing you with all the reasoning as to why I am applying for Protection visa:

    I was born in[city] in Bihar and brought up in Jalandhar, city in Punjab in North India.

    1.I received a number of years of education in India and then I came to Australia on Student Visa .

    2.I came to Australia in Dec -2007 on student Visa.

    3.I was good in studies in India and it was a dream of mine to study in Australia for higher education.

    4.My parents supported me financially but it was not enough and I decided to borrow some money from my friend who was rich and had good political and financial support from his family.

    5.I promised my friend to return his money back after i will get settle and start working part time in Australia.

    6.After couple of months my friend started bothering my parents and called me several times to give back his money. I came to know from my friends that he started taking drugs and he always try to get money from people by threatening them.

    7.I somehow managed the money and returned all his money in quick installments. But my friend continued demanding more money and according to him I promised him to return 5 times the money borrowed from him.

    8.I was shocked from his behavior and explained him my financial condition. But he started harassing my parents and demanded more money. He threatened me that he will either kill me or kidnap me whenever I will come to India.

    9.I went back to India in 2012 and made contact with my friend and asked him to meet me. He came to meet me with his 4 friends who were armed with guns and other deadly weapons.

    10.He threatened me that he will kill me and my family if I try to make any complaint in police regarding his behavior. I was very shocked and terrified by his act.

    11.I got married last year and due to my friend's behavior I was in stress and tensions that my marriage went unsuccessful and my wife separated from me because she was afraid of her life.

    12.Now it is impossible for me to return because from last couple of months my friend is threatening me that now he will kill me or kidnap me as I have not given him any money from past couple of months.

    13.I don't want to take any legal action against my friend because he is a rich man and his family can easily manipulate my case by giving bribe to police. I don't want to live my life in a insecure environment. This will also put my family in danger.

    14.I have threat to my life from my friend and his criminal friends. I have no faith in Police of my country,

    15.I believe living in Australia is safe for my life and my family's life living back in India. After living a painful and miserable life for years, now I want to give a new start to my life. A better life which is free from any fears and pains.

12. The primary issue in this review is whether there is a real chance that, if he returns to India, the applicant 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 him 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 the Migration Act.

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

14. The applicant travelled to Australia on a valid Indian passport and states that he is a national of India. Therefore the Tribunal has assessed the applicant’s claims against India as his country of nationality and his receiving country for the purposes of complementary protection.

15. 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.)

16. The applicant claims to fear harm from a friend who he allegedly borrowed money from and this person’s criminal friends. The applicant has provided very little detail about the money that he allegedly borrowed from his friend. The applicant has not elaborated as to whom he borrowed this money from apart from it being a friend, why he needed to borrow the money apart from the financial support from his parents not being enough, what the purpose of the money was, what arrangements he and his friend had come to in relation to paying this money back, whether the money had to be paid by a certain time, how he was to pay the money back (whether in a lump sum or in instalments) or if he had to pay any interest on this loan from his friend. On the very limited evidence before it, the Tribunal is unable to be satisfied that the applicant borrowed any money from a friend, as he claimed.

17. The Tribunal notes the applicant claimed that after a couple of months his friend started bothering his parents and called him several times to give his money back. The applicant has not provided any detail as to when his friend started bothering his parents, how his friend bothered his parents, when his friend called him, how many times his friend called him or what his friend said to him apart from wanting his money back. While the applicant claimed that he somehow managed to return the money to his friend in instalments, the applicant has not elaborated as to how he managed to collect the money, how many instalments he made or when he actually paid his friend.  The Tribunal notes in the statement that was provided by the applicant to the Tribunal, he appears to suggest that he did not pay his friend back until he went to India in 2012, which was four years after he initially departed the country in December 2007. However, his earlier evidence as provided in the statement attached to his protection visa application suggests that he repaid the money at an earlier time. The applicant claimed that despite paying his friend, his friend allegedly continued to demand more money and started harassing his parents and threatened to either kidnap or kill him whenever he came to India. The applicant has provided very little detail about this demand for further money including when his friend demanded that this further money be paid, how much his friend asked him to pay, how often his friend asked him to pay the further money, when his friend started harassing his parents, how his parents were harassed, when he was threatened by his friend and how he received these alleged threats. The Tribunal also notes that despite being threatened with death or abduction, the applicant returned to India in 2012. Without further information, the Tribunal is unable to be satisfied that the applicant received any demands for money from his friend or that his parents were harassed and the applicant was threatened if he did not pay this money.

18. The applicant claimed that when he went back to India in 2012 he made contact with his friend and asked him to meet him. His friend came with four friends who were armed with guns and other deadly weapons and threatened to kill him and his family if he tried to complain to the police. The applicant has not elaborated as to when during his trip back to India he met with his friend, where he met him or whether he was required to pay his friend while he was in India. The Tribunal also notes that there was nothing in the applicant’s statement attached to his protection visa application about any other occasion in which the applicant had contact with his friend during his visit to India in 2012 apart from this meeting that he called. Yet, in the applicant’s statement submitted to the Tribunal he claimed that his friend came to his house two or three times with four boys who were armed to threaten him.  He has provided no further information as to when these visits occurred or what happened during these visits other than being threatened. On the limited evidence before it, the Tribunal is unable to be satisfied that the applicant met his friend and four other people carrying weapons when he was in India in 2012 or that his friend had threatened to kill him and his family if he went to the police.

19. Nor has the applicant provided any information as to whether he continued to pay his friend once he returned to Australia, how much he was allegedly paying him or how often he paid him. While the applicant claimed that his friend had threatened to kill or kidnap him because he had not given him any money for the past couple of months, he has not elaborated as to when he allegedly stopped paying his friend money, when he was allegedly threatened by his friend, how he was threatened by his friend, if he was threatened only the once or if he has made any payments to his friend since he was allegedly threatened. Without further information, the Tribunal is unable to be satisfied on the evidence before it that the applicant had continued to pay his friend once allegedly paying the initial loan back and that when he ceased paying him, his friend threatened to kill or kidnap him.    

20. Based on the limited evidence before it, the Tribunal is not satisfied that the applicant ever borrowed money from a friend. It is not satisfied that the applicant or his parents were harassed by his friend to repay this money or that once the applicant had repaid his friend, his friend demanded more money from him. The Tribunal is also not satisfied that when the applicant returned to India in 2012 he arranged to meet this friend and his friend threatened to kill him and his family if the applicant reported him to the police or that his friend threatened him after he ceased paying him money for a couple of months. On the limited evidence before it, the Tribunal is not satisfied that the applicant faces a real chance of being harmed by his friend or anyone associated with his friend because he has not paid the money that his friend had allegedly demanded from him.

21. The applicant was put on notice that the Tribunal was not able to make a favourable decision upon the evidence he provided in support of his application. He did not provide further information despite ample opportunity to do so. Nor has the applicant given the Tribunal the opportunity to explore his claims with him at a hearing. Many questions regarding his previous and future circumstances remain unanswered. Due to the lack of detailed information, the Tribunal is not satisfied on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.

22. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal is required to consider whether he may nevertheless meet the criteria for the grant of a protection visa pursuant to the complementary protection legislation referred to above. As the applicant has failed to provide sufficient detail or supporting evidence, and has failed to attend a hearing, the Tribunal is unable to be satisfied on the evidence before it 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 he will suffer significant harm pursuant to s.36(2)(aa) of the Act.

23. 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).

24. 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).

25. 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

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

    Sydelle Muling
    Member