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1509126 (Refugee)

1509126 (Refugee)

Case [2017] AATA 3023 13 December 2017

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1509126 (Refugee) [2017] AATA 3023 (13 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1509126
COUNTRY OF REFERENCE:                  India
MEMBER:Jason Pennell
DATE:13 December 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant each of the applicants a protection visa.
Statement made 13 December 2017 at 3.08pm

CATCHWORDS
Refugee – Protection Visa – India – Particular social group – Intercaste marriage – Fear of persecution – Honour Killing – Real chance of significant harm – Relocation – Significant harm localised – Applicants able to relocate

LEGISLATION
Migration Act 1958, ss 5AAA, 36, 65, 91R, 91S, 91T, 424A, 499
Migration Regulations 1994, Schedule 2

CASES
Kavan v MIMA [2000] FCA 370
MIAC v SZQRB (2013) 210 FCR 505
MIAC v SZRHU (2013) FCAFC 91
MIBP v SZSCA (2014) 254 CLR 317
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
MZAAD v MIBP [2015] FCA 1031
MZYXS v MIAC [2013] FCA 614
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Subramanium v MIMA (1998) VG310 of 1997
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
SZRTN v MIAC [2013] FCCA 583
SZRTN v MIBP (2013) 138 ALD 104
SZSHK v MIBP (2013) 138 ALD 26
SZSKC v MIBP [2014] FCCA 938
SZVVE v MIBP [2015] FCA 837
WZASD v MIBP [2013] FCCA 1940
Zhang v RRT & Anor [1997] FCA 423

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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] June 2015 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).
The applicants applied for a protection visa [in] August 2014. The delegate refused to grant the visa on the basis that she was not satisfied that the applicants were people to whom Australia has protection obligations as outlined in s. 36(a) or (aa) of the Migration Act 1958 (the Act) and are not members of the same family unit as a non- citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the application pursuant to s.36(2)(b) and (c) of the Act.
The applicants appeared before the Tribunal appeared 5 October 2017 to give evidence and present arguments. At the hearing [Ms A, the first applicant] and [Mr B, the second applicant] gave oral evidence in support of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1509126 (Refugee)

Details

AGLC: 1509126 (Refugee) [2017] AATA 3023
Case: [2017] AATA 3023
Decision Date: 13 December 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for a protection visa by individuals from India. The applicants claimed they would face persecution due to an intercaste marriage, fearing honour killing by their families. The core of the dispute revolved around whether the applicants' fear of harm constituted a well-founded fear of persecution for a Convention reason, specifically membership of a particular social group, and whether they could reasonably relocate within India to avoid such harm.

The Tribunal was required to determine if the applicants' fear of honour killing due to their intercaste marriage met the threshold for a well-founded fear of persecution under the Migration Act 1958 (Cth). This involved assessing whether the risk of harm was real and significant, and whether the applicants belonged to a particular social group as defined by the Refugee Convention. Furthermore, the Tribunal had to consider whether internal relocation within India was a viable and reasonable option for the applicants to escape the feared harm.

In its reasoning, the Tribunal applied the established principles for assessing protection claims, including the 'real chance of significant harm' test. It acknowledged the serious nature of honour killings in some parts of India but found that the evidence did not establish a real chance of significant harm to the applicants. The Tribunal concluded that the harm, if it were to occur, was localised and that the applicants had the capacity to relocate to a different region within India where they would not face such a threat. Consequently, the Tribunal determined that the applicants did not meet the criteria for a protection visa.

Orders