1509657 (Refugee)

Case [2017] AATA 3072

1509657 (Refugee) [2017] AATA 3072 (14 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1509657

COUNTRY OF REFERENCE:                  India

MEMBER:Suzanne Carlton

DATE:14 March 2017

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 14 March 2017 at 12:37pm

CATCHWORDS
Refugee – Protection Visa – India – Religion – Religious convert - Jehovah’s Witness – Fear of violence – Fear of societal discrimination – Country information does not support applicant’s claims – Internal relocation available

LEGISLATION
Migration Act 1958, ss 36(2)(aa), 36(2)(b)-(c), 48A, 65, 499
Migration Regulations 1994, r 1.12, Schedule 2

CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
AMA15 v MIBP [2015] FCA 1424
BZAHO v MIBP [2014] FCCA 2981
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997)
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v MZYYL [2012] FCAFC 147
MIAC v SZQRB (2013) 210 FCR 505
MIAC v SZQRB [2013] FCAFC 33

MIMA v Rajalingam (1999) 93 FCR 220

Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
MZZIA v MIBP [2014] FCCA 717
MZZQE v MIBP [2014] FCCA 1642
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs (unreported, 17 September 1998)

Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
SZGIZ v MIAC (2013) 212 FCR 235
SZRLK v MIAC [2012] FMCA 1155
SZSFK v MIAC [2013] FCCA 7
SZSGA v MIMAC [2013] FCA 774
SZTBD v MIBP [2013] FCCA 2182
SZTFL v MIBP [2014] FCCA 1620
SZTFL v MIBP [2015] FCA 1323
SZTGN v MIBP [2014] FCCA 1467
SZTQP vMIBP (2015) 232 FCR 452
SZUDL v MIBP [2014] FCCA 2018
SZURK v MIBP [2015] FCCA 472

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. The first-named applicant and the second-named applicant (the applicants) arrived in Australia in June 2009 as the holders of Student visas with passports issued to them by India.  Those visas were valid until September 2011.  They applied for Protection visas in July 2011 claiming to fear being harmed…

Continue reading 1509657 (Refugee)

Sign in free to access the full text

Details
AGLC
1509657 (Refugee) [2017] AATA 3072
Case
[2017] AATA 3072
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by two Indian nationals against the decision of the Tribunal not to grant them Protection visas. The review applicant, an Indian woman raised as a Hindu, claimed to have converted to Jehovah's Witness faith while in Australia. She alleged that if returned to India, she and her husband, who relied on her claims, would face persecution due to their religious conversion, including violence and societal discrimination. The Tribunal, however, was not satisfied that the applicants had established a well-founded fear of persecution.

The primary legal issue before the court was whether the Tribunal erred in its assessment of the applicants' claims for protection, specifically concerning their alleged fear of persecution as religious converts in India. This involved determining whether the Tribunal correctly applied the relevant legal principles regarding credibility assessments, the assessment of country information, and the availability of internal relocation as a protection mechanism. The court was required to consider whether the Tribunal's adverse credibility findings were properly made and whether it adequately considered the possibility that the applicants' claims might be true, even if not proven with absolute certainty.

The Tribunal's reasoning indicated that it had considered the applicants' testimony and the available country information regarding religious freedom and discrimination in India. It found that the country information did not support the applicants' claims of a well-founded fear of persecution. The Tribunal also considered the possibility of internal relocation within India as a means of avoiding harm. Ultimately, the Tribunal concluded that it was not satisfied that the applicants were persons in respect of whom Australia had protection obligations, and therefore they did not meet the criteria for a Protection visa.

The Tribunal affirmed the decision not to grant the applicants Protection visas.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[16] Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case. However, if the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong.[17] In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[18] The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:… the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.[19][16] Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9[17] Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241[18] See MIMA v Rajalingam (1999) 93 FCR 220[19] (1999) 197 CLR 510 at [191]CONSIDERATION OF CLAIMS AND EVIDENCE The first-named applicant (the review applicant) is a [age]-year-old Indian woman born in Punjab and raised in the Hindu religion. The second-named applicant is her husband, a [age]-year-old Indian man also born in Punjab and raised as a Hindu. The second-named applicant makes no claims in his own right, instead relying on being a member of the family unit of the review applicant. Both speak Punjabi and some English. The review applicant was born in a village in [Punjab], India but has spent the majority of her life in [a town in] Punjab, India. There are she finished high school and qualifications in two fields, as well as studying IELTS-level English. She married the second-named applicant in 2009 and lived with his family in [Punjab] for a period of about four months before the two were granted [student] visas and entered Australia [in] June 2009. The review applicant was the primary student visa holder, studying [a particular course] and completing her qualifications. She later obtained work in [a business], where she was employed for about two years. The second-named applicant was also employed for about two years working in a [a business]. Neither applicant has been employed since then, having been without work rights since May 2012. The review applicant told the Tribunal that she was living in [a particular Australian suburb] and walking around the neighbourhood looking for work when she walked past the Jehovah’s Witness Kingdom Hall in [Suburb 1]. She said that she experienced a sense of peace when she saw it. Subsequently, she obtained work at a nearby [business] and found herself speaking with one of the [other employees] there who was, she says, a Jehovah’s Witness. He gave her reading material and took her and her husband to a Kingdom Hall in [Suburb 2] where he was affiliated.

Decision

Reasons for decision

The Tribunal has considered the applicants’ claims against India as their country of nationality. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s.36(2) (aa) for a Protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(c). As they do not satisfy the criteria for a Protection visa, they cannot be granted the visa.DECISION The Tribunal affirms the decision not to grant the applicants Protection visas.Suzanne CarltonMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.