1502865 (Refugee)

[2016] AATA 4016

1502865 (Refugee) [2016] AATA 4016 (17 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1502865

COUNTRY OF REFERENCE:                  India

MEMBER:Tania Flood

DATE:17 June 2016

PLACE OF DECISION:  Sydney

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

Statement made on 17 June 2016 at 2:38pm

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] May 2014 and the delegate refused to grant the visa [in] February 2015.

3. The applicant appeared before the Tribunal on 14 June 2016 to give evidence and present arguments.

   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.

   The issue in this case is whether there is a real chance the applicant will suffer serious harm on return to India for a Convention reason and alternatively whether there is a real risk he will suffer significant harm if removed from Australia to India.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Summary of claims

9. In his application for a Protection visa, the applicant claims the following:

10. He left India because he wanted to obtain a Bachelor Degree from Australia and Australian citizenship in the hope of having a better life.  There is a lot of corruption and poverty in India.  Some of his family members are sick and there is no help from the Government.  He wanted to help his family financially by obtaining a better education. 

11. If he goes back to India he fears he will be prosecuted or killed.  There is a lot of corruption in the country.

12. In May 2014 in Hyderabad there was a curfew because Sikhs and the police were killing Muslims.  Many people were injured and killed but the media does not show this in international news.  [A relative] showed him pictures of the violence on internet.

13. He fears harm from the people fighting against Muslims and the police.

14. He has read on the internet that Muslims will be prosecuted in India and he is scared to go back.

15. The Indian authorities are corrupt and cannot protect him.

16. In an interview with the Delegate the applicant provided the following further information:

17. A Muslim neighbour of his family was killed and no action was taken by the authorities.

18. Every few months there is sectarian violence but this is not reported in the media.

19. Narendra Modi was guilty of anti-Muslim violence but is now the current Indian Prime Minister.

20. His [Relative A] – [name deleted] – might arrange for the police in India to harm him as this [Relative A] owes him money for work he did for him in Australia.

21. He is used to life in Australia and does not wish to return to India.

    Findings and reasons

    Country of reference

22. The applicant claims to be a national of India.  At hearing, the applicant produced his Indian passport [numbered] which verifies his claimed identity, place and date of birth. Based on the consistency of his claims regarding his identify and citizenship and in view of his Indian passport, the Tribunal finds that India is his country of nationality for the purposes of the Convention and also the receiving country for the purposes of s.5 and s.36(2)(aa) of the Act.

23. The applicant stated at hearing that he does not have citizenship of any other country or the right to enter and reside in any other country.  In the absence of any information to the contrary the Tribunal is satisfied that the applicant is not excluded from Australia’s protection obligations under s36(3) of the Act.

    Tribunal hearing

24. At the outset of the Tribunal hearing the applicant confirmed that he has experienced no past harm in India due to his religion but he fears harm on return from his [Relative A] and due to being Muslim.

25. The Tribunal discussed the applicant’s background including his religion, family composition, residence and education in India as well as his study and work experience in Australia.  The applicant stated that he is Muslim and speaks English, Urdu and Hindi.  He claimed that his parents [and siblings] reside in Hyderabad, in Andra Pradesh.  He said that his father operates a small business, his mother is a housewife and his [siblings] are still studying.  When asked if he is in contact with his family in India he said he speaks with them about once a month.  He said they enquire about his studies and life in Australia.  When asked how they are doing he said they are doing well.

26. With respect to his education the applicant stated he completed Year [grade] in India and since arriving in Australia he has completed a [qualification].  He commenced a Bachelor Degree in [course] but did not complete this due to financial difficulties.  In Australia he has worked for [a] [company], as [occupation] and [occupation].

    Feared harm from [Relative A]

27. Despite not mentioning it in his written claims, during his interview with the Delegate, and again before the Tribunal, the applicant stated he fears harm from his [Relative A] on return to India.  He clarified that the person he fears harm from is his [Relative A]’s son but he refers to him as [Relative A].  He said he undertook [work] for this [Relative A] who was a subcontractor to [a company] which in turn subcontracted to [another company].  The applicant was unable to say whether he was formally employed by either company and stated that it was his [Relative A] who paid him for the work he performed.  The applicant claims his [Relative A] returned to India and did not pay him the money he was owed for his [services].  Further, he said that he injured himself in the course of his work and his [Relative A] told him he would pay the money to the insurance company but never did.  He estimated his [Relative A] owes him in the vicinity of $[amount].  The applicant claims his [Relative A] has threatened him with harm if he does not stop asking for the money he is owed.

28. The applicant stated that his [Relative A] has connections with politicians in India and that he has posted pictures of himself on Facebook with a visiting Indian politician who came to Australia just to demonstrate his power.  When asked if the politician had approached him personally while he was in Australia the applicant said he did not.  When asked why he has anything to fear from this the applicant stated that India is a very corrupt country and his [Relative A] has the money to pay the police to harm him and because of his [Relative A]’s connections with politicians he therefore could not expect any help from the authorities on return to India. 

29. When asked where his [Relative A] is now the applicant said he is back in Australia. When asked whether his [Relative A] has followed through with any threat to harm him he said that he hasn’t done anything yet.  He said this is because his [Relative A] is attempting to get residency or citizenship in Australia and therefore he won’t do anything to him here.  He then said he doesn’t think his [Relative A] will get residency but was unclear on which basis he has sought residency. 

30. Given that it is the applicant who is owed money, the Tribunal asked why his [Relative A] would be motivated to harm him if he returns to India.   He stated that he is aware that his [Relative A] has been involved in wrongdoings here in Australia.  When questioned, he confirmed he has not reported his [Relative A] to any authority here in Australia.  Despite this he said that his [Relative A] believes he has done so and this is why he will harm him.  The Tribunal expressed doubt that his [Relative A] would have cause to think this because in the absence of any complaint raised against him he will not have been approached by the police or any other authority here.   The applicant then said that he believes it was his [Relative A] who reported him to immigration for being in Australia unlawfully which also demonstrates his motivation to harm him.  The Tribunal put it to the applicant that this was speculative on his part but he insisted his [Relative A] was the only person who knew the particulars of his visa.

31. The applicant also said that his [Relative A] is angry because he has told his family about his mistreatment of him and he has therefore spoiled his name.  In discussing his [Relative A]’s whereabouts at hearing the applicant stated that while he is currently in Australia he goes back to India for stretches of time while waiting for the outcome of his residency application.  In the Tribunal’s view this does not demonstrate his [Relative A] is overly concerned about any reputational damage to him in his local area.

32. The applicant was asked when he last saw his [Relative A] and he said it was about six to eight months ago.  He said his [Relative A] merely stared at him as he walked past him. The applicant was asked whether any of his family in India have been threatened by this [Relative A] and he stated that [a family member] was threatened by people associated with his [Relative A] about one year ago.  When asked who had threatened his [family member] he said that it was either the police or politicians but that nothing happened to his [family member] as a result.  He also confirmed that nothing has happened to his mother or [siblings] either.  

33. Later in the hearing the applicant stated that his [family member] is now in Australia and also applying for protection. The applicant was asked whether his [family member] has been in contact with the [Relative A] here in Australia and he said he thinks he has seen him in passing but they haven’t formally met up.  He confirmed his [Relative A] has not threatened or harmed his [family member] since he has been in Australia.

34. Based on the applicant’s oral evidence the Tribunal is prepared to accept that the applicant worked as a subcontractor to his [Relative A] and that his [Relative A] owes him money in connection with this. The applicant claims his [Relative A] will harm him because he believes he has reported him to authorities in Australia and spoiled his good name. 

35. Despite his claimed beliefs, the Tribunal finds it significant the applicant’s [Relative A] has not harmed him or his [family member] whilst they have been in Australia despite that the applicant was for a period of time residing unlawfully in the country and therefore not likely to raise a complaint with the authorities and despite that he and his [family member] have encountered his [Relative A] publically on occasion.  Further, the applicant’s [Relative A] has not harmed or threatened his remaining family members in India.  As noted above, the Tribunal is not persuaded the applicant’s [Relative A] has cause to believe the applicant has raised any complaints against him with the authorities in Australia and his [Relative A]’s willingness to return to India for extended periods of time does not persuade the Tribunal he is concerned about any reputational damage to him, particularly if the applicant’s claims about his social standing vis-à-vis his own are to be believed.    Based on his oral evidence the only effort made by the applicant to recover his money has been to phone his [Relative A] and ask for it to be paid.  Given the limited efforts he has made to recover his money to date, and his claimed fears of his politically connected [Relative A], the Tribunal is not persuaded the applicant will make any serious attempt to recover the money from his [Relative A] should he or his [Relative A] return to India now or in the reasonably foreseeable future.   Thus, the Tribunal can see no reason why his [Relative A] would harm him.

36. In view of the above, the Tribunal is not satisfied there is a real chance the applicant will face serious harm on return to India from his [Relative A]. 

    Applicant’s [family member]’s political activity

37. As noted, the applicant revealed at hearing that his [family member] is now in Australia and also seeking a protection visa.  When asked why the applicant’s [family member] is applying for protection he stated that his [family member] talks to the media and other people about political matters which go on in his area and as a result people have come after him to harm him.  When asked for further information about his [family member]’s activities and who is seeking to harm him the applicant struggled to elaborate.  He added that his [family member] was forced to live in [in another country] and [another city in India] for a time in order to protect himself. 

38. The Tribunal put it to the applicant that he had earlier stated that his [family member] was still living in Hyderabad which is different to what he now claims. The applicant replied that he was referring to his family in general.  Further, the Tribunal noted that there was a previous discussion about any threats made to his [family member] and he only spoke about the problems he claims to have with his [Relative A].  The Tribunal also notes that when previously asked how his family in India were doing the applicant said they were doing well.   

39. The Tribunal considers the applicant’s evidence regarding his [family member]’s claimed political activities in India to be vague and lacking in detail.   Further, the Tribunal considers the applicant’s claims regarding his [family member]’s situation inconsistent with the advice he provided earlier in the hearing, particularly, that his family were still residing in Hyderabad and doing well.   On the evidence before it, the Tribunal is not prepared to accept that the applicant’s [family member] was exposing any political wrongdoing in India or that he was threatened or harmed for this reason or that the applicant will face serious harm on return to India for this reason.   For completion, the Tribunal asked the applicant if he was involved in any political activity in India and he stated he was not.

    Feared harm due to being Muslim

40. Referring to his written claims, the Tribunal asked the applicant why he fears he will be killed if he returns to India because he is a Muslim or why he will be prosecuted on return to India as a Muslim when he has done nothing wrong.  The Tribunal notes the applicant’s responses were generalised.  He claims that two years ago and indeed every few months there is a curfew imposed due to fights and shootings aimed at Muslims. He said that politicians have been known to send groups of people into Muslim areas to cause damage.   He referred to an incident in which his cousin was shot and killed.   Further he said that as a Muslim he prays at the mosque and there have been bomb blasts at mosques in the past. 

41. The Tribunal referred to information contained on the Department file which the applicant submitted previously about an incident which occurred in Hyderabad in May 2014.  The Tribunal accepts this incident occurred on the basis of various news articles[1] which confirm same.  However, the Tribunal pointed out to the applicant that these reports indicate the police responded and quelled the riot and arrested persons from both the Sikh and Muslim communities involved.  In any event, the applicant was not present in the country at that time and the said events cannot be said to have anything to do with him.

    [1] International Religious Freedom Report for 2014

42. The Tribunal explained to the applicant that it has to assess whether there is a real chance or a real risk that he will personally be prosecuted or harmed due to his religion and that independent country information does not appear to support this.  It was put to the applicant that country information[2] indicates that over 138 million people in India identify as Muslims, 13.4 per cent of the total population at the time of the 2001 Census, and that there is no evidence to support that the entire Muslim population is at risk of harm.  In this respect  the Tribunal notes the following:

    [2] DFAT Country Information Report, India, 15 July 2015

43. DFAT’s[3] report of 15 July 2015 states that since independence there have been a number of instances of communal tension involving Muslims in India, occasionally leading to riots.  The most recent large-scale riots were in Muzaffarnagar in Uttar Pradesh in August-September 2013.  These riots accounted for 60 fatalities and 90 injuries, in addition to displacing over 50,000 people.  Also Muslims in Jammu and Kashmir have frequently been involved in violent altercations against predominantly non-Muslim Indian security forces but the situation has improved since the 2010 protests and riots.   

    [3] DFAT Country Information Report, India, 15 July 2015

44. The UK Home Office’s 2015 report[4] indicates that in general religious minorities are able to practice their faith freely, attend places of worship and participate in religious activities without fear of harm.  Whilst it is reported that tensions flare up at times it is reported that on most days and in most places members of different religious groups enjoy their basic civil and political rights and freedom to pursue to their beliefs.

    [4] UK Home Office, Country Information and Guidance, India: Religious Minority Groups, April 2015

1. The Tribunal put it to the applicant that he claims no previous harm in India on account of his religion and given the above independent advice it is not persuaded he will be targeted or systematically discriminated against on his return to India simply because he is Muslim.  In response, the applicant referred back to the problems he has had with his [Relative A] and to his [family member]’s claimed political activities in India.

2. The Tribunal does not dispute that communal tensions reportedly arise between Muslim and non-Muslim groups in India on occasion.  However, in view of the large number of Indian Muslims who reportedly pursue their religious belief free from harm, the Tribunal is satisfied that the chance the applicant will suffer serious harm on return to India on account of his Muslim faith alone is remote.  Accordingly, the Tribunal does not accept the applicant has a well-founded fear of persecution in India for reason of his religion.

3. The Tribunal acknowledges the applicant’s claim that he is used to life in Australia and that returning to India will be totally different.  As discussed with the applicant at hearing, he nevertheless lived and completed his secondary schooling in India to age eighteen and it cannot be said he is totally unfamiliar with the culture and lifestyle in India after spending just a few years outside the country.  Further the Tribunal pointed out that he has obtained qualifications and work experience in Australia which will be advantageous to him on return to India.  The Tribunal is not satisfied that the applicant will suffer any hardship amounting to serious harm on return to India for this reason.

4. Further, the Tribunal acknowledges the applicant’s claim that there is corruption and poverty in India and that certain sick family members have not received help from the Government.   While there is reported corruption in India[5], the applicant’s oral evidence in respect of corruption is linked to the problems he has raised in connection with his [Relative A] and his [family member]’s political activities and as noted, the Tribunal is not satisfied there is a real chance the applicant will face serious harm on return to India for these reasons. 

   [5] DFAT Country Information Report, India, 15 July 2015

5. While country information[6] also indicates that an estimated twenty-two per cent of the population live below the national poverty line in India the applicant has not expressly claimed his economic situation on return to India is such that he would be unable to find employment or access sufficient income to meet his basic needs.  The Tribunal acknowledges that while the applicant claims to want to better his situation through education in Australia to assist his family financially, he nevertheless was able to complete his schooling to Year [grade] and claims that his [siblings] are currently completing their education in India as well.  Indeed when asked at hearing how his family are doing in India the applicant responded that they are doing well.  Further, since being in Australia the applicant has obtained a [qualification] and has gained work experience which the Tribunal considers will assist him to find employment in India.   Based on the applicant’s oral evidence the Tribunal is not persuaded the applicant is at risk of serious harm on return to India on account of the poverty levels in the country.

   [6] DFAT Country Information Report, India, 15 July 2015

6. There is no information before the Tribunal as to which of the applicant’s sick family members did not receive help from the Government and in any event, the applicant has not raised any claims relating to his own health.  In the absence of such, the Tribunal is not prepared to accept there is a real chance the applicant will suffer serious harm on return to India in connection with his health and or any perceived or real lack of government support in this respect.

7. For all the above reasons, and having considered the applicant’s claims individually and cumulatively, the Tribunal does not accept there is a real chance the applicant will suffer serious harm on return to India for a Convention reason. The Tribunal is not satisfied 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) of the Act.

8. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. As noted above, the Tribunal does not accept the applicant will be harmed by his [Relative A] on return to India or that his [family member] was involved in political activity or harmed for such activity or that the applicant will be threatened or harmed on return to India due to any involvement of his [family member] in political activities.  Further, the Tribunal does not accept the applicant will be harmed in connection with being a Muslim or for practicing his religious belief or that he risks harm arising from corruption, poverty and the lack of government provided health assistance.  Nor does the Tribunal accept the applicant will suffer harm due to becoming unfamiliar with life in India.  In view of this, the Tribunal is 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 he will suffer significant harm for these reasons or for any other reasons.  Accordingly, the Tribunal finds the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

9. 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) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

   DECISION

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

    Tania Flood
    Member

    
    
    

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