1505512 (Refugee)

[2015] AATA 3678

1505512 (Refugee) [2015] AATA 3678 (13 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1505512

COUNTRY OF REFERENCE:                  India

MEMBER:Amanda Paxton

DATE:13 November 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 13 November 2015 at 3:26pm

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

3. The applicant appeared before the Tribunal on 12 November 2015 to give evidence and present arguments. The Tribunal also received oral evidence from [name] and [name].  

   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 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The Tribunal had before it material including:

    ·Application for protection visa;

    ·Copy of the applicant’s passport;

    ·Copy of passport of the applicant’s [Daughter 1] indicating she is residing in [another country];

    ·English translation of the statement of the applicant’s [Daughter 2] made [in] October 2005 to the Police Sub-Inspector concerning an application for maintenance and return of moneys lodged against the her husband.[1]

    [1] AAT, f. 15.

20. The applicant failed to respond to a request for interview with the Department to present her evidence and arguments. The Minister’s delegate proceeded to assess the application and refused the Protection visa [in] March 2015

21. The applicant’s claims can be summarised as follows. The applicant, aged [age] is a widow. She owns a home in the centre of the city of Vadodara, Gujurat, which is increasingly valuable (valued currently at approximately IRS 10 mil or AUD220,000). This is a two story home and she lives on the ground floor with her [Daughter 3] and [grand-children]. The applicant has [step-sons] who are not working and they want a share of the house. [Daughter 3’s] ex-husband, a [occupation], also wants access to some of her assets. The applicant fears that her step-sons will harass her to force her to provide them with accommodation in her house and that her former son-in-law will harass her for access to her funds. The applicant claims to have no relatives in India to look after her and she wishes to remain with [Daughter 4] and her daughter’s family in Australia.

22. The applicant married in 1964 in a love marriage. Her husband was divorced with [children]. She and her husband lived in the Vadodara home. Her husband died of a [medical condition] in 1994. Both the applicant and her husband were [occupation] and the applicant worked for 18 years until her retirement at 65 as a [occupation] with the [agency]. The applicant continued to practice at home for a period after her retirement.

23. The applicant has [daughters], [Daughter 1, born [year], has lived in [another country] with her husband and [children] since 2011.

24. The applicant’s [Daughter 3], born in [year], developed [illness] when young and is handicapped with a [disability]. [Daughter 3] married her former husband in 2002. He is a [occupation] and also handicapped following an accident [details deleted]. They have [children] who are [ages].  [Daughter 3] and her husband separated in 2005. In 2005, her former husband came to the home shouting and saying that he wanted his children to live with him. On another occasion, he went to [a certain] Society where her daughter was attending and abused her. He left when others there made him go. Her daughter lodged a complaint with the police who made an order that her husband did not disturb her. He did not return after that time. At that time (2005), the applicant was in Australia visiting her [Daughter 4]. The applicant’s [Daughter 3] and her husband were divorced in 2006.  In 2010 the applicant and this daughter came to Australia to visit her [Daughter 4]. During that visit she had fall and now relies on a wheel chair to get around. In India she uses a scooter adapted to her handicap to get around. The applicant applied to remain in Australia permanently as an aged parent in 2010. This application was refused.

25. The applicant’s [Daughter 4], now an Australian citizen, and her husband migrated to Australian as skilled migrants on the basis of her husband’s skills as a [occupation]. They have [children, who], are [disabled] and primary school age.  They have had special schooling and receive various forms of educational support.

26. The applicant has [siblings], one a [occupation] is a resident of [country], the others are in in [another country].

27. The applicant has continued living in the house which is legally in her name. She and her [Daughter 3] live on the ground floor of the two storey house. The house is currently unoccupied. She also has other financial resources.

28. In her application, the applicant stated that she experienced harassment from her [Daughter 3]’s ex-husband. At the hearing, the applicant was asked to describe this harm and she recounted the occasion when two boys came to the house and opened the door speaking loudly. They went outside and she locked everything, and they left. The applicant called the police who said to call them again if the boys returned. The applicant does not know who they were or who sent them, but when she heard them speaking outside she felt that they had to something to do with either her step-sons or her former son-in-law.

29. The applicant is aged and alone with no relatives to look after her. There is no scope for her [Daughter 3] and her family to live alone because of her handicap. She wishes to stay in Australia with her daughter and children who can look after her.

30. The applicant’s witnesses provided the following:

    ·     Witness 1, the applicant’s son-in-law in Australia, confirmed the applicant’s claims above. He stated that the applicant’s [Daughter 3] no longer has any contact with her ex-husband. The applicant’s next door neighbour in Vadodara is a close friend of the ex-husband which makes them feel insecure that he might be close-by. The ex-husband repaid a sum owing to [Daughter 3] at the insistence of their lawyer. As part of the divorce, she was required to sign a paper to say that their children could not claim any property of their father. However, they think he wants custody of one of the children so he eventually he can obtain a legal claim to the Vadodara house. Witness 1 believes that the step-sons also want to get a claim to the house by occupying the two upstairs rooms and then penetrating the rest of the home. Once they are in there, he states, it would be very difficult to prevent them from encroaching on the rest of the house and the law would not protect his mother-in-law. There would be a constant pressure.

    ·     Witness 2, the applicant’s [Daughter 4], stated the last time her sister had been in touch with her ex-husband was in 2005. She explained that her mother’s house is well-located, and that her [step-sons] were not working and need the house and money. She believes that they will harass her mother and try to get money. She states that it is hard to get protection and she thinks the situation is risky for her mother. She lost her father at an early age and does not want to lose anyone else. Her [children] benefit from having her sister’s children here. The school has been very pleased with her children’s development and gives credit to their interaction with their cousins. 

    Independent country information

    State protection

31. Independent country information indicates that India’s Constitution promoted the rule of law[2] and “provided for an independent judiciary, and [in 2013] the government generally respected judicial independence”[3].  While overburdened and bribery remains a concern, there is a functioning legal system and, “In general, a person is likely to be able to access effective protection from the state.”[4]

    [2] US Department of State: Country Reports on Human Rights Practices for 2013 — India, published 27 February 2014: section le, accessed 17 October 2014

    [3] US Department of State: Country Reports on Human Rights Practices for 2013 — India, published 27 February 2014: section le,

    [4] United Kingdom Home Office, Country Information and Guidance, India: Background information including actors of protection and internal relocation, p.7.

32. More specifically in respect to the situation of women, in April 2015, the United Kingdom Home Office reported in Country Information and Guidance: India: Women fearing gender based harm/violence that legislation to protect victims or potential victims of targeted harm has been strengthened. The Protection of Women from Domestic Violence Act, 2005 aims to protect women who face abuse from a spouse or family member and has a broad definition domestic violence and includes provisions for issuing protection orders[5]. Furthermore, new legislation was adopted in 2013, including a Criminal Law (Amendment) Act which – according to the United Nations Special Rapporteur on violence against women – has improved the legislative framework significantly, introducing new criminal offences and stronger sanctions. The legislation also enables women to seek residence orders. The Special Rapporteur did, however, note in a report of April 2014 that effective implementation of these laws, and the allocation of financial resources to support their execution adequately, was reportedly lacking in many instances, but in general, a person is likely to be able to access effective protection from the state.[6]

    [5] Republic of India 2005, Protection of Women from Domestic Violence Act, 2005, Act No. 43 of 2005, promulgated 14 September 2005 < Accessed 3 November 2014 <CIS9BE2467666>.  The Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill was abandoned on 5 February 2014 primarily due to jurisdictional concerns: Prabhu, S 2014, ‘After fierce debate, anti-communal violence bill is dropped: Here's why’, NDTV, 5 February < Accessed 3 November 2014 <CX1B9ECAB6718>.

    [6] United Kingdom Home Office, Country Information and Guidance, India: Background information: Women fearing gender based harm/violence, p.8.

    Country of reference

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

    Assessment of claims

34. The issue in this case is whether the applicant faces a real chance of serious harm or a real risk of significant harm in India at the hands of her step-sons and/or her former son-in-law now or in the reasonably foreseeable future.

35. The applicant was open and genuine in her discussion of her claims. At the hearing the applicant indicated that she was slightly deaf. The Tribunal repeated any questions when necessary and was satisfied that they were correctly understood.

36. The Tribunal accepts that the applicant is elderly, being [age] years old and widowed. The Tribunal accepts on the evidence before it that she has [adult] daughters, the eldest of whom is residing in [another country] with her family and the second is a citizen of Australia residing in [city]. The Tribunal accepts that her [Daughter 3] is an Indian national and that while the applicant was unsure of her visa status that she is currently in Australia on a non-substantive visa along with her [children]. The Tribunal accepts that the applicant has been staying with her [Daughter 4] since 2010.

37. The Tribunal accepts that the applicant applied for an aged parent visa in 2010 and that this was refused. The Tribunal also accepts that the applicant did not make arrangements for a Departmental interview because she was not aware of any correspondence.   

38. The Tribunal accepts the family disposition as outlined by the applicant above. The Tribunal does not have all the circumstances of the applicant’s [Daughter 3] in front of it but it accepts the applicant’s statement that her [Daughter 3] and children would have to return with the applicant if she returned to India and that because of her handicap, her daughter does not have scope to live alone.

1. The Tribunal also accepts that the applicant has ownership under law of a two storey home in the centre of Vadodara and that prior to coming to Australia in 2010 she lived on the ground floor of that home with her [daughter] and children. The Tribunal accepts that the applicant has [step-sons] who are not working and that they would benefit from living in this property. The Tribunal also accepts that the applicant’s [Daughter 3]’s ex-husband would also benefit from access to her resources, through access to her home. 

2. The Tribunal accepts that in 2005, the applicant’s daughter’s her ex-husband harassed her daughter in the home and at [a certain] Society and that her daughter felt threatened and sought a police order to prevent him from disturbing her. The Tribunal further accepts that the applicant felt harassed when two boys entered her house shouting, and that she called the police for assistance at that time.

3. The Tribunal acknowledges that the applicant and her daughter may feel insecure in their house because they are not supported by any other family members there. The Tribunal also acknowledges the applicant’s understandable wish to remain in Australia with her daughter and family, and similarly her [Daughter 4]’s wish that her mother remain in Australia where she can care for her. The Tribunal further has empathy for and notes that the presence of her sister’s children has been of assistance in the development of her [disabled] children. 

4. In considering whether the applicant faces the real chance of serious harm or the real risk of significant harm, the Tribunal notes that the basis of the applicant’s claim of harassment by her step-sons or former son-in-law is based on an event when boys entered her home shouting. While the Tribunal considers that this would have been upsetting and that the applicant may draw a conclusion that they were acting on some-one’s behalf, it notes that the applicant stated that she had no idea who they were or who sent them. There is nothing in front of the Tribunal to link this event with either the step-sons or the former son-in-law.  On this basis, the Tribunal does not accept that this event is indicative that either the step-sons or daughter’s ex-husband wish to harm the applicant and finds that this conclusion is speculative on the part of the applicant.

5. In considering the future intent of the applicant’s daughter’s ex-husband, the Tribunal notes that neither the applicant, nor her daughter, has had contact with the ex-husband since 2005. The Tribunal finds that the claim that he will harass the applicant for her money is purely speculative. The Tribunal finds the possibility that her former son-in-law will harass her for money is remote.

6. The Tribunal has considered the claim that the step-sons will harass the applicant to gain access to living in the top floor and then encroach on the applicant’s living space. In this respect, the Tribunal notes that the applicant has legal title to her home and that the step-sons have no legal claim to it. The Tribunal also notes the independent country information above, put to the applicant for comment, which indicates that there is a functioning rule of law and that strong legal protections now exist to protect women in various domestic violence settings.

7. In this consideration, the Tribunal took into account the applicant’s Australian son-in-law’s comment in response to the country information above that while police and legal protection is improving, this level of protection is still theoretical and that it is a different situation on the ground. He stated that powerful people can still influence the police and the law, and although the government is trying to change this situation it will take time. In the case of the former son-in-law, who is from a town outside Vadodara, his father is the manager of a market yard and in an influential position with police. The Tribunal has considered this view in respect to the applicant’s case, and considers she will have access to legal protection in the event anyone made a claim on her property. The applicant has resources to engage the legal system if required to protect her possession of her property. The evidence before the Tribunal also indicates that, in the past when she has sought assistance from the police, it has been forthcoming although in the event it was not required. Similarly, the applicant’s daughter has used the legal system and her own lawyer to good effect to obtain an order to prevent her ex-husband from disturbing her. There is nothing before the Tribunal to indicate that appropriate assistance will not be provided in the future if necessary for any reason. On this basis, the Tribunal finds that the applicant does not face a real chance of serious harm or a real risk of significant harm from her step-sons or her son-in-law because they want to occupy her house or obtain her money.

8. In response to country information, the applicant’s Australian son-in-law, as the first witness for the applicant, stated that it is easy to make something that happens to a person look like an accident. He suggested that the ex-husband may seek to harm his sister-in-law to gain access to the children and hence the family property, for example making an accident when she is riding her adapted motor scooter. The Tribunal has considered this claim in relation to the applicant. As it has found no evidence that the applicant faces harm from her daughter’s ex-husband, the Tribunal finds the claim speculative and does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm on this basis.

9. In considering the risk that the applicant’s step sons will harass her to gain occupation of the house, the Tribunal notes that the applicant confirmed that the house is empty and there have been no moves in the last five years for anyone to take possession of the house. The Tribunal considers that this is indicative that the step-sons, or her former son-in-law or anyone else, do not seek to occupy the house. The Tribunal finds nothing to indicate that the applicant faces a real chance of serious harm or a real risk of significant harm from her step-sons or former son-in-law.

10. The Tribunal has considered that the applicant faces a real risk of significant harm because she is elderly and widowed and without family protection other than from her [Daughter 3].  The Tribunal has empathy for this concern. In considering this situation, the Tribunal had regard to the concepts of ‘persecution’ explained by 91R(1) and (2) of the Act, and ‘significant harm’ for these purposes exhaustively defined in s.36(2A): s.5(1), that the conduct inflicted by another person or persons, or a third party. The Tribunal finds that the possibility that the applicant becomes feels unsupported in this case does not involve the conduct of another person or persons, or third party, and does not constitute serious or significant harm on this basis.

11. The applicant, through her second witness, put the view that life in India is risky for someone in the applicant’s circumstances.  The Tribunal accepts that the applicant may not want to return to India for this reason.  The Tribunal assessed this claim under the complementary protection criterion. Having regard to s.36(2B) of the Act, the Tribunal considered whether the risk of harm is one faced by the population generally and is not faced by the applicant personally. The Tribunal notes country information indicates that crime occurs in India. In the applicant’s case, the Tribunal is satisfied that she faces the same safety risks as the population generally and that she has access to state protection afforded to the general population in India, and that this is not a risk faced by the applicant personally. On the evidence before it, the Tribunal does not accept that any risk the applicant will suffer is not faced by the applicant personally. On this basis the Tribunal does not accept that there is a real risk that the applicant will suffer significant harm as defined in s36(2)(B) of the Act.

12. The Tribunal also accepts the statement of the applicant’s second witness, her Australian citizen daughter, that in the event that her mother returned to India, her crippled [sister] and children would also return to India and that this would be to the detriment of her own ([disabled]) children who have benefited from the interaction with their cousins. The Tribunal is sympathetic with these claims but finds them outside the scope of this consideration.

13. The Tribunal has considered all the applicant’s individual circumstances cumulatively and notes that there are a number of compassionate aspects, in particular that she is aged and although she has her home and resources, she wishes to live with the support of her Australian daughter. However, based on the evidence before it, the Tribunal finds that the applicant does not face a real chance of persecution in the reasonably foreseeable future from her step-sons, former son-in-law or anyone else, for any reason (Convention or non-Convention related.

14. Considering the applicant’s circumstances, individually and cumulatively, 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 she will suffer significant harm.    

    Conclusion

15. 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).

16. 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).

17. 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

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

    Amanda Paxton
    Member