1502929 (Refugee)

[2015] AATA 3409

1502929 (Refugee) [2015] AATA 3409 (4 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1502929

COUNTRY OF REFERENCE:              India

MEMBER:Fraser Syme and Tigiilagi Eteuati

DATE:4 September 2015

PLACE OF DECISION:  Brisbane

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

Statement made on 04 September 2015 at 9:35am

Statement made on 04 September 2015 at 9:35am

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, a citizen of India, applied for the visa [in] November 2014 and the delegate refused to grant the visa [in] January 2015.

3. The applicant appeared before the Tribunal on 7 August 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

   RELEVANT LAW

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.

   Refugee criterion

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 Protocolr4 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. 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.

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

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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

15. 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’).

16. ‘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.

17. 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

18. 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. A report named “DFAT Country Information Report, India, 15 July 2015” (DFAT Report) was considered by the Tribunal.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

20. The Tribunal considers that this case turns on whether the persecution the applicant claims to fear is for a Refugee Convention reason and if not whether there is a real risk that the applicant will suffer significant harm if he returns to India.

21. The Tribunal finds the applicant is a national of India. He provided his Indian passport to the department. The applicant made no claim to be a national of any other country. The Tribunal accepts the applicant’s claims should be assessed against India for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). In making the below findings, the Tribunal has considered the village in which he last lived to be his home region. As the Tribunal is not satisfied that there is a real chance that the applicant would suffer serious or significant harm, if he returned to India, it is unnecessary to determine whether the applicant has a right to enter and reside in Nepal under the India-Nepal Treaty of Peace and Friendship.

    Is claimed persecution for a Refugees Convention reason?

22. For the applicant to be owned protection obligations under the Refugees Convention, the feared persecution must be for a Refugee Convention reason.

23. The applicant gave evidence that in 2002 his family purchased nearly an acre of land from another man in the village (vendor). He claimed that shortly after his family purchased the land, the vendor’s sons brought legal proceedings against the applicant’s family claiming that the applicant’s family had used dubious means to secure the sale from their father. After the hearing the applicant provided a document from an advocate who claimed to have appeared in court proceedings involving the vendor’s son which concluded in 2010.

24. The applicant claimed that the vendor sold the land to his family as the vendor’s family did not support him or provide him with money. The applicant claimed that the court case and consequent appeals were resolved in his family’s favour in 2012 or 2013.  The applicant claimed that the value of the land had increased “hugely” since his family purchased it. He claimed that the vendor’s family were unhappy with the court decision and hired goons to occupy the property. The applicant claimed that his family sold the property to a third party from the city in 2013. The applicant claimed that the vendors family had attacked his father and his brother and had attempted to kill the applicant just before he left India.

25. The applicant claimed he fears that, should he return to India, he would be harmed or killed by members of the vendor’s family because the vendor’s family was unhappy that the applicant’s family purchased the land from the vendor.

26. At the hearing, the applicant claimed that his father had told him that about 6 weeks prior to the Tribunal hearing, a group of unknown people had attacked his family’s home. He said that his father had called the applicant’s uncle for assistance and once his uncle arrived the attackers departed. When asked about the nature of the attack, the applicant said that he had been told that his father saw people approaching the house and closed the door. When asked why he thought that the people were there to cause harm to his family, he said that his father had formed this view on seeing the people approach the house at night. He then appeared to change his evidence to indicate that the group of people told his father to come out of the house because they wanted to kill him.

27. At the hearing, the applicant provided what appeared to be three Indian affidavits to the Tribunal; one each from his father, brother and his uncle. Each statement stated that in around June 2015 a son of the vendor, along with some unknown persons, attacked the applicant’s house. They fled when the applicant’s family made noise. While retreating, they said that when the applicant returned to India they would kill him.

28. The applicant, who was not represented, did not raise a claim that future persecution would be for a Refugee Convention reason, nor does any such argument arise on the material before the Tribunal. The Tribunal raised this issue with the applicant at the hearing. The Tribunal finds that the applicant fears harm from the vendor’s family because of a private dispute with his family over a piece of land.

29. It is well established that a family is capable of constituting a particular social group within the meaning of the Refugee Convention. However, this is subject to s.91S of the Act, which provides that the following matters must be disregarded in determining whether a person has a well-founded fear of being persecuted for reasons of membership of a particular social group that consists of the person’s family:

    (a)      any fear of persecution, or any persecution, that any other family member has experienced, where the fear or persecution is not for one of the Convention reasons; and

    (b)      any fear of persecution, or any persecution, that the applicant or any other family member has experienced, where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in (a) above had never existed.

30. Therefore, a person who is pursued because he or she is a relative of a person targeted for a non-Convention reason does not fall within the grounds for persecution covered in the Convention definition. In the present matter this means that, in assessing whether the applicant has a well founded fear of persecution for reasons of his membership of a particular social group that consists of his family, the Tribunal must disregard the applicant’s claimed fear of persecution based on his family members’ non-convention related fears. The Tribunal considers that to the extent that any of the applicant’s family members fear persecution, it is because of a private land dispute and not for Refugee Convention reasons.

31. The Tribunal is satisfied that any persecution feared by the applicant is not so feared for Refugee Convention reasons. Thus, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act and will proceed to consider the claims of the applicant under the complementary protection criteria.

    Are there substantial grounds for believing that there is a real risk that the applicant will suffer significant harm?

32. The Tribunal accepts that the applicant’s family purchased a piece of land from the vendor in 2002. The Tribunal accepts that soon after the land was purchased members of the vendor’s family brought legal proceedings against the applicant’s family over ownership of the land. The Tribunal accepts that since the land was purchased there has been animosity between the two families which has resulted in insults and threats being exchanged and some pushing or jostling taking place. The Tribunal finds that the insults, threats and pushing of the kind claimed by the applicant in this case do not amount to significant harm as defined in s.36(2A) and s.5(1).

33. The Tribunal considers that there were elements of the applicant’s evidence which raised serious concerns as to the genuineness of the applicant’s claims. The Tribunal told the applicant his credibility was an issue.

34. While the applicant claimed in his application that his father and brother had been attacked by the vendor’s family and that the vendor’s family had attempted to kill the applicant before he left India, at the hearing the applicant abandoned these claims. When it was put to the applicant at the hearing that he had claimed that the vendor’s family had attempted to kill him just prior to his departure from India, he said that this did not in fact occur but it could have happened. The Tribunal finds that the vendor’s family never attempted to kill the applicant.

35. When asked about his claim that his father and brother were attacked by the vendor’s family, the applicant said that there had not been any “big incidents” between the vendor’s family and his. He said that there had been “just fighting”. When asked what the applicant meant by fighting, he explained that the vendor’s family had used abusive words, made threats and sometimes pushed members of his family. He explained that none of his family members were ever “injured” as a result of the “fighting”. As mentioned above, while the Tribunal accepts that since the land was purchased there has been animosity between the two families which has resulted in insults and threats being exchanged and some pushing or jostling taking place, the Tribunal finds that neither the applicant’s brother nor his father were never “attacked” in a way which caused them to suffer significant harm.

36. The Tribunal considers that for the applicant to claim that the vendor’s family had attempted to kill him only to abandon this claim at the hearing shows that the applicant was willing to fabricate some of his claims to obtain a favourable outcome for his visa application. Similarly, the Tribunal finds that by claiming that his father and brother were attacked, the applicant had meant to mislead the Minister’s delegate into believing that the applicant’s brother and father had suffered a serious physical attack. The Tribunal finds that these claims show that the applicant was willing to exaggerate some of his claims to obtain a favourable outcome.

37. In his protection visa application, the applicant had claimed that the vendor’s family had hired goons to occupy the disputed land as the vendor’s family were not happy with the court decision regarding the disputed land. In his application the applicant stated:

    “THE LEGAL BATTLE STARTED IN TE COURT AND THE COURT MADE THE DECISION IN OUR FAVOURS. BUT THEY WERE NOT HAPPY ABOUT THE DECISION AND HIRED LOCAL GOONS TO OCCUPY THE LAND”

38. At the hearing the applicant stated that goons had not been hired by the vendor’s family. When it was pointed out that he had made this claim in his application, the applicant said that goons had occupied the land but left once the court made orders that they leave. This claim was contrary to the claim made in his application that the goons were hired after the court proceedings were concluded as the vendor’s family was unhappy with the court decision.

39. The applicant’s conflicting evidence in relation to this claim is such that the Tribunal does not accept that goons were ever hired by the vendor’s family to occupy the disputed land. The Tribunal finds that this was another fabrication which the applicant invented to obtain a favourable outcome for his visa application.

40. The Tribunal does not accept that there was any attack on the applicant’s family’s home earlier this year. The Tribunal considers it implausible the vendor’s family would make a first attack on the applicant’s family’s home 13 years after the applicant’s family bought the land; 2 years after the court case had been resolved and had sold the land. Further, the applicant’s account of what he was told had occurred was inconsistent, both internally, and with the three affidavits he provided at the hearing.

1. For example:

   ·   At first the applicant stated that his father had told him that he formed the belief that the people who came to the house intended to harm him without any express indication from the people that they intended to harm him. Later, the applicant claimed that his father said that the people had told him to come out of the house because they wanted to kill him.

   ·   The applicant’s father’s affidavit does not mention that he believed that the attackers had come to kill him nor does it mention any threat made against his life.

   ·   No mention was made of any threat to the applicant’s father’s life in the affidavits of the applicant’s brother or uncle.

   ·   The applicant claimed that he was told that the people who came to the house were unknown to the applicant’s family. However, in all there affidavits, one of the vendor’s sons was named as being among the attackers. 

2. In addition, at the hearing, the applicant admitted that only his brother spoke English and yet his father and uncle are also purported to have sworn affidavits in English. The Tribunal notes that the DFAT Report states that a range of sources suggest that the manufacture and use of fraudulent documents is prevalent in India, including for immigration purposes. The Tribunal raised this information with the applicant along with the concerns as to the truth of the claims about the attack made in the affidavits and in his evidence. The applicant asked how he could show that what he was saying was true but said he had no further comment.

3. The Tribunal considers that the claim that the attackers had threatened to kill the applicant if he returned to India are implausible. The Tribunal notes that the claims of an attack on the family home were only raised during the Tribunal hearing after the applicant’s application had been refused by the Department. The Tribunal considers that the timing of the claims, when considered with the implausibility and inconsistent nature of claims, raises suspicions as to the genuineness of his claims and add to the weigh to the conclusion that the attack did not occur. The Tribunal also notes that that the applicant made false or exaggerated claims in his application by stating that the vendor’s family had attempted to kill him, that they had hired goons to occupy the land and that his father and brother were attacked by the vendor’s family. The Tribunal finds that the applicant’s claim about an attack on the family home is also a fabrication, concocted during the Tribunal proceedings to mislead the Tribunal into believing that the applicant would suffer significant harm should he return to India.

4. Although the Tribunal has rejected parts of the applicant’s claims of past harm, it must still assess whether there is a real risk that he will suffer significant harm in the future should he return to India. For the following reasons, the Tribunal finds that there is no real risk that the applicant will suffer significant harm if he returned to India.

5. First, the applicant was a [minor] when his family purchased the land from the vendor and it is implausible that he would have been held personally responsible for the purchase. That he would continue to be held responsible for the purchase, some 13 years after the purchase, is even more implausible. While the applicant claimed that he would be at risk as a member of the family that purchased the land, as discussed further below, the Tribunal rejects this claim as none of his family have suffered significant harm from the vendor’s family.

6. Secondly, the applicant remained in India between 2002, when the land was purchased, and 2009 when he left India for Australia. In that time he said that he was never physically harmed by the vendor’s family. When this was put to the applicant he responded that he had been threatened on 3 or 4 occasions in that 7 year period. The Tribunal finds that while the applicant may have been threatened a few times in the 7 years that he remained in India after this family purchased the disputed land, the fact that the applicant’s family never attacked the applicant strongly suggests that he would not be at risk of harm if he returned.

7. Thirdly, to the extent that the applicant claims that the motive for any future attack is to coerce the applicant’s family to return the land, the Tribunal notes that the applicant’s family no longer own the land, having sold it after the conclusion of the court case. When this was put to the applicant he said that the vendor’s family was still angry that the applicant’s family bought the land and expected them to return the land. The Tribunal is not satisfied that the vendor’s family believe that the applicant’s family are in a position to return the land to them. The Tribunal finds that the fact that the applicant’s family are not in a position to do so suggests that the applicant would not be at risk of harm from the vendor’s family to coerce the applicant’s family to return the disputed land.

8. Finally, and most significantly, the applicant’s family have remained in their village in the same house since the purchase of the land in 2002 and have never been suffered significant harm from the vendor’s family. At most, they have been subject to verbal threats on occasion and to some pushing. The Tribunal asked the applicant why the vendor’s family would seek to kill the applicant when the vendor’s family could have sought to inflict significant harm on members of the applicant’s family but had not. The applicant gave no answer to this question.

9. The Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm if he returns to India. Thus, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

   Conclusions

10. 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).

11. 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).

12. 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

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

    Fraser Syme and Tigiilagi Eteuati
    Members