1504601 (Refugee)

Case [2016] AATA 3674

1504601 (Refugee) [2016] AATA 3674 (29 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1504601

COUNTRY OF REFERENCE:                  India

MEMBER:Nicola Findson

DATE:29 March 2016

PLACE OF DECISION:  Perth

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

Statement made on 29 March 2016 at 1:09pm

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] April 2014 and the delegate refused to grant the visa on [in] March 2015.

    Background and Protection Claims

  3. The Tribunal has before it the Department’s file relating to the applicant.  The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.

  4. In his application for a protection visa, the applicant, who is [age], indicated that he is a Hindu from Ludhiana, Punjab.  The applicant indicated that he speaks, reads and writes English, Hindi and Punjabi.  The applicant indicated that he finished secondary school in India in [year] and then went on to complete a [tertiary qualification]. 

  5. The applicant departed India on a valid passport and entered Australia [in] May 2008, as the holder of a student visa. 

  6. As to the questions on the application asking why he left India and what he fears will happen to him if he goes back, the applicant’s responses are vague.  He states that he left his country “for higher education in Australia and a better future”.  He states that at the time he left India, “I did not have harm to my life and property but at present circumstances have changed”.  He indicates that “my life is in danger this is what I feel like cause they attacked on my family couple of months ago and father was in hospital for long time in ICU and he had multiple stitches on his head and few injuries on his body too.  They was about to kill my father and I am pretty scared to deal with all this anymore”.  The applicant indicates “my life is completely in danger, cause I am the oldest one in my family and educated they just want to ruin our family because of some old enemntiy [sic]”. The applicant indicates that there are people waiting for him to return to India, so that they can get their “revenge”.

    The Delegate’s Decision

  7. In a decision record, the delegate sets out his findings and reasons for refusing to grant…

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AGLC
1504601 (Refugee) [2016] AATA 3674
Case
[2016] AATA 3674
Decision Date

CaseChat Overview and Summary

The applicant, a citizen of India, sought a review of the delegate's decision to refuse a protection visa, arguing that his life would be in danger if he returned to India due to attacks on his family and threats of revenge. The delegate had found that the applicant had access to effective state protection in Nepal under the Treaty of Peace and Friendship between India and Nepal. The delegate concluded that Australia had no protection obligations in respect of the applicant because he had not taken all possible steps to avail himself of the right to enter and reside in Nepal.

The central legal issues before the court were whether the applicant had a present right to enter and reside in Nepal and if he had taken all possible steps to avail himself of that right under section 36(3) of the Act. The court needed to determine if the delegate's findings on these points were reasonable and supported by the evidence.

The court found that the applicant had a present right to enter and reside in Nepal by virtue of the Treaty of Peace and Friendship between India and Nepal. However, the court also found that the applicant had not taken all possible steps to avail himself of this right. The applicant had not made any efforts to reside in Nepal, despite having a passport valid until 2025 and family support in India. The court accepted the delegate's findings that the applicant had not taken all possible steps to avail himself of the right to enter and reside in Nepal. Consequently, the court held that Australia was taken not to have protection obligations in respect of the applicant.

The court dismissed the application for review, affirming the delegate's decision to refuse the protection visa. The court found the delegate's decision to be reasonable and supported by the evidence. The court did not find it necessary to make any orders.

Orders

Orders of the court

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Background

Background to the litigation

The applicant, who claims to be a citizen of India, applied for the visa [in] April 2014 and the delegate refused to grant the visa on [in] March 2015. Background and Protection Claims The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. In his application for a protection visa, the applicant, who is [age], indicated that he is a Hindu from Ludhiana, Punjab. The applicant indicated that he speaks, reads and writes English, Hindi and Punjabi. The applicant indicated that he finished secondary school in India in [year] and then went on to complete a [tertiary qualification]. The applicant departed India on a valid passport and entered Australia [in] May 2008, as the holder of a student visa. As to the questions on the application asking why he left India and what he fears will happen to him if he goes back, the applicant’s responses are vague. He states that he left his country “for higher education in Australia and a better future”. He states that at the time he left India, “I did not have harm to my life and property but at present circumstances have changed”. He indicates that “my life is in danger this is what I feel like cause they attacked on my family couple of months ago and father was in hospital for long time in ICU and he had multiple stitches on his head and few injuries on his body too. They was about to kill my father and I am pretty scared to deal with all this anymore”. The applicant indicates “my life is completely in danger, cause I am the oldest one in my family and educated they just want to ruin our family because of some old enemntiy [sic]”. The applicant indicates that there are people waiting for him to return to India, so that they can get their “revenge”.The Delegate’s Decision In a decision record, the delegate sets out his findings and reasons for refusing to grant the applicant a protection visa. In summary, the delegate expressed grave reservations in relation to the credibility of the applicant. However, the delegate decided not to make a finding in respect of the applicant’s overall credibility because the delegate made relevant findings on the applicant’s statutory effective protection. In particular, the delegate found that the applicant has access to effective state protection in Nepal by the operation of the bilateral residency treaty known as the Treaty of Peace and Friendship between India and Nepal. The delegate went on to find that the applicant has a present right to enter and reside in Nepal. The delegate then found that pursuant to s.36(3) of the Act, Australia is taken not to have protection obligations in respect of the applicant because the delegate found the applicant has not taken all possible steps to avail himself of the right to enter and reside, whether temporarily or permanently, in Nepal.Application for review

Evidence

Evidence Before The Court

The applicant applied to the Refugee Review Tribunal on [in] April 2015, for a review of the delegate’s decision. The Tribunals Amalgamation Act (Cth) 2015 took effect on 1 July 2015. Transitional provisions of that Act had the effect that an application for review to the Refugee Review Tribunal (now abolished) is taken to be an application to the Administrative Appeals Tribunal. Evidence provided at Tribunal hearing The applicant appeared before the Tribunal on 30 September 2015, to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s current partner, [Ms A]. The applicant was not represented in relation to the review. After providing an outline of procedural aspects of the hearing, the Tribunal invited the applicant to provide evidence and arguments in relation to matters arising in his case. The Tribunal explained that it would consider a number of issues, including in his circumstances as a citizen of India, whether he has a present right to enter and reside in Nepal. And, if that is so, the Tribunal explained that it must consider whether pursuant to s.36(3) of the Act he has taken all possible steps to avail himself of the right to enter and reside, whether temporarily or permanently, in Nepal. It explained that if this was the Tribunal’s finding, then pursuant to s.36(3) of the Act, Australia would not have protection obligations in respect of the applicant. The applicant confirmed that he holds a passport issued by the Republic of India, which was recently renewed, and which will expire [in] 2025. The applicant told the Tribunal that his father is an [occupation]. His mother is a homemaker who cares for the applicant’s [siblings], one of whom is severely disabled and the other who is a student. The parents of the applicant also support [relatives] in their home. As to family in Australia, the applicant told the Tribunal that he has been in a defacto relationship with [Ms A] - a [country] citizen – for the last two and a half years, and that they were expecting a baby together. The applicant also told the Tribunal that he has several cousins living in Australia. The applicant told the Tribunal that he speaks with his family in India about every 2 to 3 months. He last spoke with his mother about 2 months ago. The applicant told the Tribunal that he is a member of the Brahmin caste, the highest caste in Hinduism. The applicant confirmed that he had completed a [qualification] after finishing his secondary schooling in India. He also confirmed that he did not work in India at the conclusion of his studies and before coming to Australia. The applicant told the Tribunal that he has undertaken studies in Australia since arriving in 2008, and in particular, completed a [course]. He indicated that he had also commenced a [different course] as well as a [related course], but that he had not completed these studies because he was “going through a depression”. He told the Tribunal that he had provided medical certificates to the Department to explain his low attendance, but did so too late, so his visa was cancelled. The applicant told the Tribunal that he had sought review of the decision to cancel his student visa as well as Ministerial Intervention when the Migration Review Tribunal affirmed the Department’s decision to cancel the visa.

Decision

Reasons for decision

As to the questions on the application asking why he left India and what he fears will happen to him if he goes back, the applicant’s responses are vague. He states that he left his country “for higher education in Australia and a better future”. He states that at the time he left India, “I did not have harm to my life and property but at present circumstances have changed”. He indicates that “my life is in danger this is what I feel like cause they attacked on my family couple of months ago and father was in hospital for long time in ICU and he had multiple stitches on his head and few injuries on his body too. They was about to kill my father and I am pretty scared to deal with all this anymore”. The applicant indicates “my life is completely in danger, cause I am the oldest one in my family and educated they just want to ruin our family because of some old enemntiy [sic]”. The applicant indicates that there are people waiting for him to return to India, so that they can get their “revenge”.The Delegate’s Decision In a decision record, the delegate sets out his findings and reasons for refusing to grant the applicant a protection visa. In summary, the delegate expressed grave reservations in relation to the credibility of the applicant. However, the delegate decided not to make a finding in respect of the applicant’s overall credibility because the delegate made relevant findings on the applicant’s statutory effective protection. In particular, the delegate found that the applicant has access to effective state protection in Nepal by the operation of the bilateral residency treaty known as the Treaty of Peace and Friendship between India and Nepal. The delegate went on to find that the applicant has a present right to enter and reside in Nepal. The delegate then found that pursuant to s.36(3) of the Act, Australia is taken not to have protection obligations in respect of the applicant because the delegate found the applicant has not taken all possible steps to avail himself of the right to enter and reside, whether temporarily or permanently, in Nepal.Application for review The applicant applied to the Refugee Review Tribunal on [in] April 2015, for a review of the delegate’s decision. The Tribunals Amalgamation Act (Cth) 2015 took effect on 1 July 2015. Transitional provisions of that Act had the effect that an application for review to the Refugee Review Tribunal (now abolished) is taken to be an application to the Administrative Appeals Tribunal. Evidence provided at Tribunal hearing The applicant appeared before the Tribunal on 30 September 2015, to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s current partner, [Ms A]. The applicant was not represented in relation to the review. After providing an outline of procedural aspects of the hearing, the Tribunal invited the applicant to provide evidence and arguments in relation to matters arising in his case. The Tribunal explained that it would consider a number of issues, including in his circumstances as a citizen of India, whether he has a present right to enter and reside in Nepal. And, if that is so, the Tribunal explained that it must consider whether pursuant to s.36(3) of the Act he has taken all possible steps to avail himself of the right to enter and reside, whether temporarily or permanently, in Nepal. It explained that if this was the Tribunal’s finding, then pursuant to s.36(3) of the Act, Australia would not have protection obligations in respect of the applicant.

Ratio Decidendi

Legal Principle Established

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