1505413 (Refugee)

[2016] AATA 3831

1505413 (Refugee) [2016] AATA 3831 (6 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1505413

COUNTRY OF REFERENCE:                 India

MEMBER:Amanda Paxton

DATE:6 May 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 06 May 2016 at 5:05pm

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

3. On 5 April 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 6 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. No response was received. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. They have since not contacted the Tribunal to explain their non-attendance. 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.

   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 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. 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 has taken into account 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The applicant’s claims as articulated in his Form 866 can be summarised as follows.

20. The applicant, who is a [age] Sikh man from Haryana, India, first arrived in Australia [in] January 2009 to obtain an education in Australia. His other aim in leaving India was to leave a stressful place.

21. The applicant's father was the [head] of the [name] Society, and was very active in politics.  His father was murdered by unknown groups in 2009 because of "political enmity".

22. The applicant’s mother and other family members from his mother's side were also very active in politics. Both his father and maternal grandfather had strong political opinions and were not liked by other conservative anti-Sikh party, and had many enemies.

23. The applicant’s maternal grandfather, now deceased, was an active member of the Indian National Lok Dal party. His grandfather and maternal uncle were murdered due to political disputes. His uncle was also tortured and committed suicide due to continuous harassment and threats. Many of his family members have been killed and tortured due to political reason and ethnicity.

24. People from conservative anti-Sikh political parties have started using threats and violence to frighten his family. His family has advised him that they have received various threats that "they" will get the applicant killed in an "accident" or will kidnap him. If the applicant returns to India, the people from conservative anti-Sikh political parties and criminals will try to harm him and his family. The police have been notified but no action has been taken due to lack of evidence.

25. People will think that the applicant has earned a lot of money in Australia, and has access to money. People like him are frequently kidnapped and tortured and threatened for money.  It is not safe for him to return because he may be harmed.

26. The authorities in India will not protect him because they do not have power and are also very corrupt.

    Country of reference

27. The applicant claims to be an Indian national. Based on the copy of his passport, the Tribunal finds that India is his country of nationality for the purposes of the Convention and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

    Assessment of claims

28. 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.) The applicant’s’ claims are vague and lack detail. Had he attended a hearing, the Tribunal would have explored his claims with him and sought further information from him on a range of details relevant to his stated claims.

29. The applicant’s failure to attend the hearing when requested to do so however meant the Tribunal has not been able explore his claims with him or have the ability to seek further information about the basis on which he has sought protection.  Had the applicant attended the hearing, the Tribunal would have explored the nature of his family’s political involvement and the claimed harm they experienced arising from this involvement and political disputes, such as the murder of his father, grandfather and maternal uncle. The Tribunal would have sought oral evidence about the nature of the applicant’s family member’s political and criminal enemies, who they were and, to whom, how and why they had made threats of violence against the family.  Had the applicant attended the hearing, the Tribunal could have asked him questions to elaborate on the limited and vague information. However, as he did not attend, the Tribunal was unable to do this.

30. The lack of detail in the application leads the Tribunal to consider that the applicant’s claim in relation to harm and threats to his family on account of their political opinion has no actual factual basis. In addition to their vague nature, the applicant has not taken the opportunity to elaborate his claims at a hearing. The Tribunal considers this strongly indicates that there is no basis for the applicant’s claimed fears. For these reasons, on the evidence before it, the Tribunal is not satisfied that the applicant’s family have experienced harm or threats from political enemies, or anyone else.

31. In his application, the applicant claimed that the police had been notified of the threats against his family but no action had been taken due to lack of evidence. Had the applicant attended the hearing, the Tribunal would have asked for information in relation to the family engagement with the police in this matter. The Tribunal would also have sought information from the applicant about his claim that he could not seek protection from the police. In addition, the Tribunal would have sought comment about independent country information with indicates that in general, a person is likely to be able to access effective protection from the state.[1]  The applicant’s failure to attend the hearing when requested to do so has meant the Tribunal has not been able explore his claims regarding police action in relation to the claimed threats.

    [1] United Kingdom Home Office Country Information and Guidance, February 2015

32. In his application, the applicant makes the claim that many of his family members have been killed and tortured due to their political opinions and ethnicity. Had the applicant attended the hearing, the Tribunal would have make enquiry about harm experienced by his family members on account of their ethnicity. In this respect, the Tribunal notes the applicant claims to be a Sikh man from Haryana. The Tribunal would have sought comment about advice from the Department of Foreign Affairs and Trade that, “Overall, DFAT assesses that Sikhs in contemporary India have no heightened risk of official or societal discrimination beyond that experienced by the broader community.”[2] On the limited evidence before it, the Tribunal does not accept that the applicant faces harm due to his identification as a Sikh.

    [2] DFAT. Country Information Report, 15 July 2015, P.11

33. The Tribunal has considered the applicant’s claim that people will think that he has access to money because he has been in Australia, and he may be subject to kidnap, torture and threats for money. The applicant’s failure to attend the hearing when requested to do so has meant the Tribunal has not been able explore these claims. Had the applicant attended, the Tribunal would have sought more detail about this claim, such as which people he is referring to. The Tribunal notes that the applicant arrived in Australia in 2009 but did not apply for protection until 2014. This is a significant delay, and the Tribunal is very concerned by it. The Tribunal considers that had the applicant had a fear of harm of return to India he would have lodged his protection visa far earlier than the eventual date. He has not attended to explain this delay.

34. The applicant has not attended the hearing with the Tribunal to provide more information about his claims, where he was advised in the hearing notice that the Tribunal 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 applicant’s claims are vague and very limited, with no detail regarding the harm the applicant fears due to the political opinion and ethnicity of his family, or the threat of harm to the applicant at the hands of criminals, or anyone else. As stated above, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant, and the failure of the applicant to attend the Tribunal hearing, and the departmental interview before that, and vague and limited claims as provided, leads to the Tribunal to have significant credibility concerns about the claims of the applicant.

35. On the evidence before it, the Tribunal does not accept that the applicant faces harm from anti-Sikh political groups or criminals or anyone else. Further, on the evidence, the Tribunal does not accept that the applicant will not be able to obtain protection from the state for any reason.

36. Considering the applicant’s individual circumstances, the Tribunal finds that he does not face a real chance of serious harm in the reasonably foreseeable future for any reason. The applicant’s fear of persecution is not well-founded.

37. Considering the applicant’s individual circumstances, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India that there is a real risk that he will suffer significant harm.

    CONCLUSION

38. 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).

39. 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).

40. 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

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

    Amanda Paxton
    Senior Member