1506786 (Refugee)

[2016] AATA 4783

1506786 (Refugee) [2016] AATA 4783 (2 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1506786

COUNTRY OF REFERENCE:                  India

MEMBER:Suzanne Carlton

DATE:2 December 2016

PLACE OF DECISION:  Perth

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

Statement made on 02 December 2016 at 12:50pm

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.

CATCHWORDS

Refugee – Protection visa –  India – Revenge attack – Girlfriend’s former partner – Delay in protection application

LEGISLATION

Migration Act 1958

Migration Regulations 1994

CASES

MIEA V GUO & ANOR (1997) 191 CLR 559 AT 596
YAO JING LI V MIMA (1997) 74 FCR 275 AT 288
PRASAD V MIEA (1985) 6 FCR 155 AT 169-70

Randhawa v MIEA (1994) 52 FCR 437 at 451

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

   RELEVANT LAW

3. 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

4. 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).

5. 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.

6. 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.

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

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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

14. 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’).

15. ‘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.

16. 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

17. 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

18. The issue in this case is whether the applicant is owed Australia’s protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

19. The Tribunal has before it the Department’s file relating to the applicant’s protection visa application.  The applicant has provided a copy of the delegate’s decision to the Tribunal. 

20. According to the information provided on the application form, the applicant is [an age]-year-old citizen of India, from Assam, who entered Australia [in] October 2008 as the holder of a [temporary] visa.  That, and subsequent [temporary] visas were valid until [March] 2012. 

21. He then held a series of [temporary] visas as a dependent on the [temporary] visa of his then partner and those were valid until June 2013, when the most recent visa was cancelled due to non-compliance. 

22. Later in June 2013 the applicant applied for a [temporary] visa in his own right, noting that he and his partner had separated.  However, when the applicant had not provided the requested evidence that he met the [temporary] visa criteria by the end of September 2013, the delegate refused the visa. 

23. He then held a series of Bridging visas E, all without work rights, from October 2013 until present.  His Bridging visa E granted in November 20013 was premised on the conditions that he would obtain a ticket to leave Australia and would leave Australia within the visa period.  He did not do so. Instead, he made this visa application.

24. He has been offshore twice since arriving in 2008 – once to India for a period of about two weeks in 2010 and once to [another country] for a period of about a week in 2013.

25. The applicant provided extremely limited information in his application.  He gave no details of family members, no details of his previous education, and no details of his past employment.

26. Specifically, he set out his claims as follows:

    Why did you leave [India]?

    I left the India due to my trouble in the area with local group of people and I decided to leave India to go away the reach of those people.

    Have you experienced harm in [India]?

    Yes. I was attacked by the 5-8 people when I was living in Assam.  I was in relation with the girl and her ex boyfriend was not happy with our relationship.  So to took revenge from me he did attacked on me there times.

    What do you fear may happen to you if you back to [India]?

    Now if I go back the people who were with that guy still are in that area.  They easily trace me if I go back to my place and from my place in India I cannot go anywhere.  Because I never know any one in the other part of my country back home.  I am living in Australia from last 5 years and I do not had any fear that those people can come here and can attack on me.

    Who do you think may harm/mistreat you if you go back?

    As previously while I lived in India I had relationship with girl and she had another boyfriend who was not happy with our relationship. So he wanted to kill me due to that relation and gone mad after me to kill me.

    Why do you think this will happen to you if you go back?

    They are still live in that area and still thought that if I go back to India or come back then they will take revenge from me.  I don’t want to put myself in dangerous situation where I will cost my life.[1]

    [1] Department file [number] Folios 16-19.

27. The applicant attended a protection visa interview with the delegate.  According to the delegate’s decision, the applicant reiterated and expanded upon his briefly stated written claims.

28. He clarified to the delegate that this issue occurred in 2006 and that the girl’s ex-boyfriend (Mr B) threatened the applicant over the telephone and also tried to lure him to a [venue] in Bangalore with the intention of assaulting and harming him.

29. The applicant advised the delegate that Mr B has since married, had children and divorced.  Nevertheless, according to the applicant, Mr B continues to visit the applicant’s home and to make inquiries of his family as to his whereabouts. 

30. Based on the evidence before the delegate, the delegate proceeded to refuse the visa, making a number of adverse credibility findings in relation to the applicant. 

    Review application

31. Following the applicant's application to the Tribunal for review, the Tribunal wrote to the applicant on 21 October 2016 indicating that it was unable to make a favourable decision on the information before it. The applicant was invited to appear before the Tribunal on Friday 2nd of December [2016].

32. The Tribunal had invited the applicant to the hearing through his registered migration agent/authorised recipient.  In early November 2016 the agent sent the Tribunal a change of contact details form signed by the applicant removing the agent from the matter. 

33. It was not clear to the Tribunal from that correspondence whether the agent had advised the applicant of the hearing date and time.  Accordingly, on 22 November 2016 a courtesy copy of the hearing invitation was sent to the applicant directly.

34. I note that in addition to the two copies of the hearing invitation sent out, the applicant was sent two text message reminders of the hearing to his mobile phone.  Nevertheless, the applicant did not respond to the hearing invitation and did not attend the hearing.

35. There is no evidence on the Tribunal file that the applicant has had any further contact with the Tribunal.

36. No further documents or submissions were tendered to the Tribunal prior to the hearing. The applicant provided to the Tribunal a copy of the delegate’s decision.

    FINDINGS AND REASONS

37. On the basis of the applicant’s passport presented to the Department and in the absence of evidence to the contrary, I find that he is a national of India.

38. The applicant claims that if he returns to India he faces persecution from Mr B, the ex-boyfriend of a girl the applicant dated in 2006.

39. 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.  The reason the Tribunal has exercised its discretion in this way is the Tribunal is satisfied that the applicant received the Tribunal’s acknowledgment of his application for review, which emphasised the importance of informing the Tribunal of any change to his address.  This was further demonstrated by the change of contact details submitted in early November. Additionally, the Tribunal is satisfied that the applicant was properly notified of the hearing date and time.

40. The applicant’s previous dealings with the department, particularly in relation to his most recent [temporary] visa application, demonstrate a pattern of non-participation in proceedings.

41. The Tribunal notes the applicant’s delay of five years prior to making a protection visa application.  The Tribunal noted that the events forming his claims occurred, on his evidence, in 2006.  The applicant did not apply for a protection visa until November 2013, after he had been without a substantive visa for more than two years and after all other options were exhausted.

42. Given the fact that he has applied onshore for a further visas, I do not accept that the applicant could not have applied for a protection visa earlier.  I draw an adverse inference from that fact that he did not lodge a protection visa application until he had run out of other options and I note that the stated triggers for protection occurred in 2006. I make adverse credibility findings based on his delay in seeking protection.

43. The Tribunal infers from the vagueness of the applicant’s claims and the history of his dealings with the Department and the Tribunal in respect of his claims that he does not intend to meaningfully participate in the review process.  It follows that the Tribunal has decided to deal with the applicant’s application for review on the material before it.

44. The applicant claims that he will be persecuted if he returns to India because he fears harm from Mr B, the former boyfriend of a former girlfriend.  The harm he fears is, it is claimed, the result of the applicant dating the girl that Mr B had previously dated at some point after MR B and the girl broke up.  The relationship between the applicant and the girl made Mr B jealous and angry.  These events are said to have occurred in 2006. 

45. The Tribunal notes that this was two years prior to the applicant’s departure from India.  The applicant has provided little to no evidence that he experienced any harm in that period prior to his departure from India.

46. Since departing India, the applicant has claimed that Mr B continues to look for harm and that the applicant believes that Mr B means him harm.

47. The Tribunal finds that the applicant has only provided a very brief outline of his protection visa claims.  The applicant’s claims are vague and lacking in meaningful detail.

48. The Tribunal had hoped at the hearing to ask the applicant for more information about the dispute, harm experienced and threats of harm.  It had hoped to clarify whether these events took place in Bangalore or in Assam, noting the applicant claims to have lived both places.

49. The Tribunal also wished to ask the applicant whether the Indian authorities would withhold protection for him for a convention reason.

50. The Tribunal had also hoped to ask the applicant at hearing whether his claims for protection fell within the ambit of complementary protection.  Given the applicant’s non-attendance at the hearing and the paucity of detail in the claims made, there is no evidence before the Tribunal that indicate that the applicant’s claims for protection come within the ambit of complementary protection.

51. Overall, the applicant’s claims are mere assertions which the Tribunal has not had the opportunity to test at hearing.  Given the lack of detail in the applicant’s claims, and without the opportunity to test the truthfulness of his claims at hearing, the Tribunal is not prepared to accept them. 

52. The Tribunal is not satisfied that he subjectively fears harm from Mr B, or anyone else, because of a relationship in existence ten years ago, or for any other reason.

53. As the Tribunal is not satisfied that the applicant has a subjective fear of harm if he were to return to India, the Tribunal finds that he is not a person who has a well- founded fear of persecution for a convention reason in the reasonably foreseeable future, and is not a person to whom Australia has protection obligations under the Refugee’s Convention.

54. Likewise, for the same reasons, the Tribunal is not satisfied that it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm.

55. For the above reasons, I am therefore not satisfied that the applicant has a well-founded fear of being persecuted for a Convention reason in India. Hence, I am not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention and the applicant therefore does not satisfy the criterion in s.36(2)(a).

56. As I have not accepted that the applicant faces significant harm in India, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm. Thus, I am not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(aa).

1. 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

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

   Suzanne Carlton
   Member