1503371 (Refugee)

[2016] AATA 4158

1503371 (Refugee) [2016] AATA 4158 (18 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1503371

COUNTRY OF REFERENCE:                  India

MEMBER:Penelope Hunter

DATE:18 July 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 18 July 2016 at 2:54pm

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, [name] (the primary applicant) and [name] (the secondary applicant) are a husband and wife who claim to be citizens of India, applied for the visas [in] October 2014. The delegate refused to grant the visa [in] February 2015 and notified the applicants.

3. The applicants lodged an application for review of the delegate’s decision with the Tribunal [in] March 2015.

4. On 27 June 2016 a letter was sent to the primary and secondary applicants inviting them to appear before the Tribunal and give oral evidence and present arguments at a hearing on 13 July 2016. The primary and secondary applicants were advised that if they did not attend the scheduled hearing and a postponement was not granted, that the Tribunal may make a decision in their case without taking further action to allow or enable them to appear before it.

5. The primary and secondary applicants did not attend the hearing on 13 July 2016. Neither of them contacted the Tribunal to seek a postponement of the hearing, or to provide any reason why they could not attend at the scheduled time.

6. The Tribunal is satisfied that the invitation to attend the hearing was sent to the primary and secondary applicants and that the primary and secondary applicants were offered an opportunity to appear at a hearing before it but did not do so. In the circumstances, and pursuant to s. 426A of the Act, the Tribunal has decided to make a decision on review without taking further action to enable the primary and secondary applicants to appear before it.

   RELEVANT LAW

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’).

    Ministerial Direction

11. 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.

    CLAIMS AND EVIDENCE

12. The primary applicant claims he was born on [date] in the town of [name], in the state of Gujarat India. He claims to be of the Hindu religion and had [number] years education, completing high school in [year], and [a certain] college in [year]. He describes his occupation in India as a [occupation] and he married the secondary applicant [in] February 2002.

13. The secondary applicant has claimed Protection as a dependent on the primary applicant’s application.  She was born on [date], in the town of [name], in the state of Gujarat, India. She also claims to be Hindu, has had [number] years of education and lists her occupation as a housewife. The primary applicant and secondary applicant have [children]. [The] children are in India.

14. The applicants travelled to Australia on passports issued in their names. They were issued with Class FA Subclass 600 Business Visitor visas [in] August 2014. They departed India [in] September 2014 and arrived in Australia [in] September 2014. They have provided the Department with copies of the relevant biodata pages of their passports, and claim in their application to have lost their original documents.

15. The primary applicant has provided a statement with his Protection visa application and the information contained within is summarised as follows;

    i.The primary applicant was born to a Hindu family in the state of Gujarat India. His grandfather was a [occupation] in his area and the primary applicant inherited lots of farmland and shops. He works with his father collecting rent and visiting the properties.

    ii.The primary applicant married the secondary applicant in February 2002. His friend took him to [Ashram 1] and went every full moon. He became an active member of [Ashram 2]. He donated money for the organisation and asked others to contribute. The secondary applicant also followed him as did some of her friends.

    iii.In the past few years the media has been creating a negative image of [Ashram 1]. In late August [Mr A] was arrested. This broke the heart of the primary applicant because he did not believe the accusations and considered the guru [Mr A] was being framed as part of a conspiracy. In the midst of this people who supported [Mr A], like the primary applicant were being framed.

    iv.Some of the people that the primary applicant introduced to the ashram turned against him.

    v.A mob of [number] people attacked their local ashram and ransacked the office and attacked people at the office. The same day 10 to 15 people attacked the primary applicant’s house and pelted stones breaking furniture, windowpanes and other items. They damaged his car and tried to set his house on fire. It was a difficult days for his family, they had information prior to the attack and had left the house. They informed the police and paid the police to protect them but the police arrived late and the mob fled from the scene.

    vi.Some people who did not like the primary and secondary applicant tried to take advantage of the situation and planned to kill the primary applicant. He was actively involved with the Congress party and worked for the party during the election. The BJP leaders knew of his affiliation with the Congress party and tried to take advantage of this situation

    vii.The primary applicant organised a visa through an agent to leave India. He had to make this decision in order to avoid persecution.

16. The Primary applicant was invited by letter dated [in] November 2014 to arrange an interview with the delegate of the Minister within 7 days of that correspondence if he wished to discuss the application. The delegate was satisfied that the applicants had had a reasonable opportunity to furnish their claims in full and provide verbal evidence. He proceeded to assess their claims  [in] February 2015 based on the evidence before the Department and found that there was so little detail in the application that there was finding a positive disbelief in relation to the applicant’s overall case and the application was refused.

17. The applicants did not lodge any further material in support of their claims for protection with their application for review filed with the Tribunal [in] March 2015.

    ASSESSMENT OF CLAIMS AND REASONS

18. On the basis of the materials and information provided to the Department and available to the Tribunal, the Tribunal accepts that the primary and secondary applicants are Indian citizens and that their identity is as it is claimed to be. Without evidence to the contrary the Tribunal accepts that the primary and secondary applicant do not have a right to enter or reside temporarily or permanently in any other country apart from India. The Tribunal accepts that India is the primary and secondary applicant’s country of nationality for Convention purposes and is the receiving country for complementary protection purposes. There is nothing before the Tribunal to suggest that the applicants are precluded from protection by the operation of s.36(3) of the Act.

    Primary Applicant

19. Section 5AAA of the Act makes clear that it is the responsibility of an applicant 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 mere fact that a person claims fear of persecution or harm 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 reasons 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 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 details as necessary to enable the examiner to establish the relevant facts. A decision maker is not required to make the applicant’s case of him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

20. The Tribunal did not have the opportunity to question the primary applicant about his claims as the applicants did not attend the Tribunal hearing. The Tribunal has relied upon the information and documents the primary applicant provided in his application form. In this material the primary applicant has only set out very briefly his claims. The Tribunal has considered the primary and secondary applicants’ claims that they were followers of [Mr A], however as the applicants did not attend the hearing the Tribunal did not have the opportunity to explore the details of their support for [Mr A] and obtain details of any specific incidents, or be satisfied as to the credibility of the primary and secondary applicant and their claims. The primary applicant has provided no evidence to support his claims, or details as to when incidents such as people turning on him and his family, and attacks upon his home, are alleged to have occurred and/or what harm he or his family actually suffered. Despite the delegate refusing the applicants’ claim, and the primary and secondary applicants being put on notice that favourable decision could not be made on the material before the Tribunal, neither applicant has attended the hearing or provided any additional material.

21. The Tribunal has located country information that confirms the existence of a spiritual leader [Mr A][1], of [Ashram 1] and that there are several ashrams associated with the guru in the state of Gujarat and throughout India.[2] The Tribunal further accepts that there is some controversy surrounding the guru [Mr A]. [Media information deleted].[3] Then in August 2013, a case was lodged against [Mr A] as he was accused of [a crime] at his ashram in [city], Rajasthan.[4] A further case was lodged [information deleted].[5] [Mr A] has been in jail since September [year].[6] Yet, the Tribunal was unable to locate any information about attacks on [Ashram 1] in the area around the primary applicant’s home in [town] or elsewhere in Gujarat. The Tribunal is not aware of independent country information to support the claim that followers of [Mr A] have been targeted by mobs in Gujarat. There is country information that individuals who oppose or who are witnesses crimes alleged to have been committed by [Mr A] have been targeted. For example, a [media] article stated that “[information deleted]. ^[7]  However the primary applicant has stated in his application that he did not believe the accusations against the guru [Mr A] and the Tribunal is not satisfied on the evidence that the claims of the primary applicant are factual or that he would be targeted for this reason.

    [1] [Information deleted]

    [2] [Information deleted]

    [3] [Information deleted]

    [4] [Information deleted]

    [5] [Information deleted]

    [6] [Information deleted]

    [7] [Information deleted]

22. With respect to the primary applicant’s claim of association with the Indian National Congress Party (Congress Party), his evidence to his involvement is very vague. He does not identify in which election he worked on for the Congress Party, or what work he actually undertook. He has provided no information on his activities on behalf of the Congress Party and why the BJP would be interested in harming him in particular. It is further noted that media articles indicate that the guru [Mr A] was not affiliated with the Congress Party but actually a supporter of the BJP.[8] He has been represented in legal proceedings by the BJP [official] [name].[9] He has also accused members of the Congress Party of orchestrating cases against him.[10] The Tribunal also considered information contained in the DFAT country report for India dated July 2015. In summary the Tribunal noted that India is a federal constitutional democracy and that for much of the post-independence era Indian politics has been dominated by the Congress party but that the BJP had been able to form government with its political partners after the 2014 general election. The Tribunal noted that the security situation in India can vary significantly over time and from place to place but that the overall Department assessment was that notwithstanding the number of incidents referred to in the report that in absolute terms, because of the sheer size and diversity of India that most Indians live their lives with a relatively low risk of violence.[11] The primary applicant failed to attend the hearing so the Tribunal could not be satisfied as to his personal circumstances. There is insufficient material before the Tribunal to suggest that by merely working for the Congress Party during an election the applicant has a profile or been involved in activities that would make him a target for harm by the BJP or any other individual or organisation. The Tribunal does not accept on the evidence before it that the primary applicant would be subjected to harm for this reason.

    [8] [Information deleted]

    [9] [Information deleted]

    [10] [Information deleted]

    [11] At 2.38

23. The Tribunal also notes that despite claims that his home and family have been targeted the applicant has left his [children] in India. This also does not satisfy the Tribunal that the primary applicant has a genuine fear of harm to his family for the reasons he has claimed.

24. Overall, assessing the material before it, the Tribunal could not be satisfied that the claims of the primary applicant are genuine. It follows that on the information before it, the Tribunal is not satisfied that the primary applicant faces a real chance of persecution involving serious harm in India for a Convention reason now or in the reasonably foreseeable future for reasons of his actual or imputed religion, as a follower of [Mr A], of [Ashram 1] or by reason of his actual of imputed political opinion as a support of the Congress Party or a combination of both. Accordingly, the Tribunal is not satisfied that the primary applicant has a well-founded fear of persecution for a Convention reason now or in the reasonably foreseeable future.

25. The Tribunal has also considered whether the complementary protection requirements of s.36(2)(aa) are met. As the Tribunal is not satisfied as to the primary applicant’s claims of fear of harm personally for the reasons claimed, or that he has suffered any harm in the past, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to India, he will suffer significant harm either individually or cumulatively by reason of his support for [Mr A], of [Ashram 1] or his support for the Congress Party. Nor is the Tribunal satisfied that the applicant will suffer significant harm in India for any other reason.

    Secondary Applicant

26. The secondary applicant claimed Protection as a dependent on the primary applicant’s application. She did not produced her own statement to the Department; she did not respondent to the Delegate’s invitation for an interview (although the Tribunal notes that she was not invited to do so as a secondary applicant) and she did not produce any evidence to the Tribunal after the delegate refused the Protection visa applications.

27. The primary applicant named the secondary applicant as his wife and as there is no information before me to the contrary the Tribunal accepts the primary applicant and secondary applicant are members of the same family unit.

28. The secondary applicant, has been on notice, through the hearing invitation, that the Tribunal did not have sufficient information to make a decision in her favour. The primary applicant has made claims that the secondary applicant was also a supporter of [Mr A], of [Ashram 1]. As set out above the Tribunal has rejected the claims that the primary applicant has been harmed in the past or will be harmed in the future for this reason. There are no claims that the secondary applicant was involved with the Congress Party. Having rejected the primary applicant’s evidence, and given the absence of any other evidence, the Tribunal is not satisfied that the secondary applicant has suffered or come to the adverse attention of anyone in India at all, nor that there is any reason that she may suffer harm in India. As the primary applicant does not meet either protection criteria, the secondary applicant cannot satisfy the criterion for the grant of the protection visa as a member of his family unit.

    Conclusion

1. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

   DECISION

2. The Tribunal affirms the decision not to grant the applicants Protection visas.

   Penelope Hunter
   Member