1512165 (Refugee)

[2016] AATA 3386

1512165 (Refugee) [2016] AATA 3386 (3 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1512165

COUNTRY OF REFERENCE:                  India

MEMBER:Giles Short

DATE:3 March 2016

PLACE OF DECISION:  Sydney

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

Statement made on 03 March 2016 at 4:35pm

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

INTRODUCTION

1. [The applicant] is a citizen of India.  He comes from Jalandhar in Punjab and he came to Australia as a student in May 2009.  In his application for a protection visa lodged [in] April 2015 he said that he feared being harassed due to his ethnicity (which he identified as Hindu) and that he feared harm especially in schools by teachers as they thought his religion (which he likewise identified as Hindu) was outcaste and they had no mutual respect.  [The applicant]’s application for a protection visa was refused by a delegate of the Minister for Immigration and he has applied to this Tribunal for review of that decision.  A summary of the relevant law is set out at Attachment A.  I have taken the policy guidelines prepared by the Department of Immigration and the country information assessments prepared by the Department of Foreign Affairs and Trade into account to the extent that they are relevant.  The issues in this review are whether [the applicant] is a refugee and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to India, there is a real risk that he will suffer significant harm.

2. By letter dated 9 February 2016 and sent by email to [the applicant]’s authorised recipient in accordance with section 441G of the Migration Act 1958 [the applicant] was notified that the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone.  The letter invited [the applicant] to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review at a hearing on 3 March 2016.  [The applicant] was advised that, if he failed to attend the scheduled hearing and an adjournment was not granted, the Tribunal might make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal.  On 25 February 2016 the Tribunal received from [the applicant]’s representative a completed ‘Response to hearing invitation’ form indicating that [the applicant] would not take part in the Tribunal hearing.  I have therefore proceeded to make a decision on the basis of the material already before me.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Is [the applicant] a refugee?

   [The applicant]’s claims

3. [The applicant] is aged [age].  He gave no details of his education in India in his application.  As referred to above, he came to Australia as a student in May 2009 but he said that he had only studied until July 2010.  He said that he had been working in Australia as a [occupation] for a [company] since October 2009.  He said that he had left India ‘due to parents forcing decisions’ and he said that he had got married in Australia without his parents’ permission.  He said that he feared ‘regular harassment, fear of life of ethnics group to attack me’, that he had faced harm in India ‘especially in schools by teachers they think my religion is outcast and no mutual respect’ and that he feared being harassed by everyday people due to his ethnic background and dealing with different ethnicities.  As referred to above he identified both his ethnic group and religion as Hindu.

4. [The applicant] was interviewed by the primary decision-maker in relation to his application [in] June 2015.  He said that he had completed his application form himself.  He said that when he had been living in India he had always wanted to go overseas.  He said that his parents had been forcing him to do this and that, especially working in the same field or business in which his father worked.  He said that he had not wanted to do this but his parents had been forcing him to do this.  He said that they had also been choosing a wife for him.  He said that this had been part of the religion and he had refused to adapt.  He confirmed that his parents lived in Jalandhar.  He said that his father worked for the [organisation] but they also had a [business].  He said that he had been working in this [business] since he had been [age] years old but he had not wanted to work there.  He agreed that his parents had supported him to come to Australia to study.  He said that he had a [sibling] who was [at] university in Jalandhar.

5. With regard to his claim that he had faced harm in India at school [the applicant] said that this had happened to him on numerous occasions.  He said that the majority of schools in Jalandhar were Christian and Sikh whereas he was a Hindu.  He said that he had had to deal with humiliation when he had been a teenager and he had gone through a lot of hard times.  He said that he had been teased, he had been harassed and he had been kicked out of school.  He said that he had a fear for his life because there was a local ethnic group which might attack him or humiliate him.  He said that he might not take this in the right way in his head and he might do something. He said that a lot of things could happen to him.  Asked why he thought this would happen to him he said that the majority of his family were quite orientated with the people so they told people what was going on.  He said that a few of the ethnic groups knew about him and he referred to the fact that he had got married in Australia without his parents’ permission.  He said that this would make it hard for him when he went back there and this was why he did not want to go back there.

6. [The applicant] said that he was still married but he and his wife were not together.  He identified the ethnic group which he feared as the local Christians and the local Sikhs as well as his own ethnic group, the Hindus.  He said that according to them you had to agree with your parents but he had not wanted to do this.  He said that this had been his choice and it was going to make it hard for him.  He said that people would know that he had not obeyed his parents because his parents had told them.  He said that his family did a lot to help people in Jalandhar like feeding the poor people on the street.  He said that this was how people would know that he had got married without his parents’ permission.  He said that he was meant to go to the temple and to do what Hindus had always been doing from generation to generation but obviously this had not happened.  He said that according to them he had broken the rules.

7. Asked if he could go elsewhere in India, away from Jalandhar, [the applicant] said that his only other family were in [country].  He said that he had no access to go anywhere else in his country because India was a big country and it was a multicultural society.  He said that it would be hard for him to live in another state or another city, having a fresh new life again.  He said that he really did not know anyone apart from in Jalandhar.  He asked how he was supposed to survive because he did not know anyone.  The primary decision-maker also raised the fact that as a national of India [the applicant] had a right to enter and reside in Nepal.  [The applicant] said that Nepal was quite a small country and the economy was pretty down so he did not see any chance plus he might have a language problem because he did not know their native language.  He said that he would rather relocate to [country].  Asked if he had a right to go to [country] [the applicant] said that he could apply but he really did not know and he did not have enough money.  He referred to the fact that he had been living in Australia for six years.  He repeated that he feared for his life if he returned to India.  He said that religious humiliation could lead up to fear for his life and ethnic groups - local communities - would probably kill him.  He repeated that he really did not know anyone and he would have no job and no money.  He said that he considered Australia his country.

   Conclusions

8. The primary decision-maker found that Australia did not have protection obligations to [the applicant] on the basis that as a national of India [the applicant] had a right to enter and reside in Nepal and that he had not taken all possible steps to avail himself of that right in accordance with subsection 36(3) of the Migration Act 1958. I have not considered it necessary to deal with this issue because I am unable to be satisfied on the evidence before me that [the applicant] has a well-founded fear of persecution as defined in section 5J of the Migration Act. [The applicant] has referred to his problems with his parents who wanted him to work in the family business and to get married to a wife whom they chose for him and he has said that a lot of people in Jalandhar know that he got married in Australia without his parents’ permission. However the fact that he may be estranged from his parents and that he may be ostracised by elements of his community or the population of Jalandhar more generally as a result of the fact that he has not obeyed his parents or that he has ‘broken the rules’ does not in itself suggest that he fears persecution involving serious harm as required by paragraph 5J(4)(b) of the Migration Act.

9. [The applicant] has said that he was teased and humiliated at school and that he suffered harassment and he has said that he holds fears for his life from ‘ethnic’ groups, namely the local Sikhs, the local Christians and his own community, the Hindus. However his fears in this regard appear to be entirely speculative and lacking in any objective foundation. He has not suggested that his own family have been having problems because of tensions between different ethnic or religious communities in Jalandhar. When he was interviewed by the primary decision-maker he linked his fears for his life once again to the fact that he had not obeyed his parents. I am unable to be satisfied on the evidence before me that there is a real chance that [the applicant] will be persecuted or specifically that his life will be at risk because he has not obeyed his parents. I am unable to be satisfied on the evidence before me that, if [the applicant] returns to India, there is a real chance that he will be persecuted for reasons of his race, religion, nationality, membership of a particular social group or political opinion as required by section 5J of the Migration Act and I therefore do not accept that he is outside his country of nationality owing to a well-founded fear of persecution as required by the definition of a refugee in section 5H of the Act. For the reasons given above, therefore, I am unable to be satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under paragraph 36(2)(a) of the Act.

   Are there 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?

10. [The applicant] has referred to his problems with his parents but the fact that he may be estranged from his parents and that he may be ostracised by elements of his community or the population of Jalandhar more generally as a result of the fact that he has not obeyed his parents or that he has ‘broken the rules’ does not in itself suggest that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to India, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Migration Act. In particular I am unable to be satisfied on the evidence before me that there is a real risk that [the applicant] will suffer degrading treatment or humiliation as defined, that is, an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. I am unable to be satisfied on the evidence before me that any problems which [the applicant] has had in the past have risen to the level of extreme humiliation which is unreasonable nor that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to India, there is a real risk that he will suffer problems of this nature.

11. [The applicant] has said that he fears for his life but as I have said above I consider that his fears in this regard are entirely speculative and lacking in any objective foundation.  He has not suggested that his own family have been having problems because of tensions between different ethnic or religious communities in Jalandhar.  When he was interviewed by the primary decision-maker he linked his fears for his life once again to the fact that he had not obeyed his parents.  I am unable to be satisfied on the evidence before me 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 be arbitrarily deprived of his life or that he will otherwise suffer significant harm because he has not obeyed his parents as he has claimed.

12. I am unable to be satisfied on the evidence before me 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 be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. Accordingly I am unable to accept on the evidence before me 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 as defined in subsection 36(2A) of the Migration Act. For the reasons given above, therefore, I am unable to be satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under paragraph 36(2)(aa) of the Act.

    CONCLUSIONS

13. For the reasons given above I am unable to be satisfied on the evidence before me that [the applicant] is a person in respect of whom Australia has protection obligations. Therefore he does not satisfy the criterion set out in paragraph 36(2)(a) or (aa) of the Migration Act for a protection visa. There is no suggestion that he satisfies subsection 36(2) on the basis of being a member of the same family unit as a person who satisfies paragraph 36(2)(a) or (aa) and who holds a protection visa. Accordingly, [the applicant] does not satisfy the criterion in subsection 36(2) for a protection visa.

    DECISION

14. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Giles Short
    Senior Member

    
    

    ATTACHMENT A - RELEVANT LAW

15. In accordance with section 65 of the Migration Act 1958, the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Schedule 2 to the Migration Regulations. Subsection 36(2) of the Act provides that:

    ‘(2)  A criterion for a protection visa is that the applicant for the visa is:

    (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) 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 non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or

    (b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)a non citizen in Australia who is a member of the same family unit as a non citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.’

    Refugee criterion

16. Section 5H of the Migration Act defines a person as a refugee if, in a case where a person has a nationality, the person is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country or, in a case where the person does not have a nationality, the person is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it. Subsection 5J(1) states that a person has a well-founded fear of persecution if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of a receiving country.

17. The definition of a refugee contains four key elements. First, the applicant must be outside his or her country of nationality or country of former habitual residence. Secondly, the applicant must fear ‘persecution’. Subsection 5J(4) of the Migration Act states that the persecution must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’. Subsection 5J(5) states that the following are instances of ‘serious harm’:

    (a)a threat to the person’s life or liberty;

    (b)significant physical harassment of the person;

    (c)significant physical ill-treatment of the person;

    (d)significant economic hardship that threatens the person’s capacity to subsist;

    (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

18. In requiring that ‘persecution’ must involve ‘systematic and discriminatory conduct’ paragraph 5J(4)(c) reflects observations made by the Australian courts to the effect that the notion of persecution involves selective harassment of a person as an individual or as a member of a group subjected to such harassment: see Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason CJ at 388, McHugh J at 429. Justice McHugh went on to observe in Chan, at 430, that it was not a necessary element of the concept of ‘persecution’ that an individual be the victim of a series of acts:

    ‘A single act of oppression may suffice.  As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is “being persecuted” for the purposes of the Convention.’

19. ‘Systematic conduct’ is used in this context not in the sense of methodical or organised conduct but rather in the sense of conduct that is not random but deliberate, premeditated or intentional, such that it can be described as selective harassment which discriminates against the person concerned for a Convention reason: see Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [89] - [100] per McHugh J (dissenting on other grounds). The Australian courts have also observed that, in order to constitute ‘persecution’ for the purposes of the Convention, the threat of harm to a person:

    ‘need not be the product of any policy of the government of the person’s country of nationality.  It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution’ (per McHugh J in Chan at 430; see also Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 per Brennan CJ at 233, McHugh J at 258)

1. Thirdly, the applicant must fear persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’. Paragraph 5J(4)(a) states that one or more of the reasons mentioned in paragraph 5J(1)(a) must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution.  It should be remembered, however, that, as the Australian courts have observed, persons may be persecuted for attributes they are perceived to have or opinions or beliefs they are perceived to hold, irrespective of whether they actually possess those attributes or hold those opinions or beliefs: see Chan per Mason CJ at 390, Gaudron J at 416, McHugh J at 433; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570-571 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.

2. Fourthly, the applicant must have a ‘well-founded fear of persecution’ as defined in subsection 5J(1).  That subsection contains a subjective requirement, that the person fears being persecuted, and an objective requirement, that there is a real chance that the person will be persecuted.  A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility: see Chan per Toohey J at 407 and McHugh J at 429.  A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation: see Guo, referred to above, per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 572.

   Complementary protection criterion

3. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Migration Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa), set out above. The Full Court of the Federal Court has held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the context of the Refugees Convention: see Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [246] per Lander and Gordon JJ with whom Besanko and Jagot JJ (at [297]) and Flick J (at [342]) agreed. ‘Significant harm’ for the purposes of the complementary protection criterion is exhaustively defined in subsection 36(2A): see subsection 5(1) of the Act. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’, to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’. The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.

   Third country protection

4. It is relevant in the present case that subsection 36(2) of the Migration Act, set out above, is qualified by subsections 36(3), (4), (5) and (5A) of the Act which provide as follows:

   ‘(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

   (4) However, subsection (3) does not apply in relation to a country in respect of which:

   (a)the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

   (b)the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

   (5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:

   (a)the country will return the non-citizen to another country; and

   (b)the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

   (5A) Also, subsection (3) does not apply in relation to a country if:

   (a)the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and

   (b)the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.’

5. The Full Court of the Federal Court in Minister for Immigration, Multicultural Affairs and Citizenship vSZRHU (2013) 215 FCR 35, held that the term ‘right’ in subsection 36(3) did not mean only a legally enforceable right under domestic law but also included a liberty, permission or privilege lawfully given.

   Ministerial direction

6. In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘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.

   Requirement that the decision-maker be ‘satisfied’

7. It is generally not appropriate to use the term ‘onus of proof’ in connection with administrative decision-making.  However it may be that, upon a proper construction of the relevant statutory provisions, a particular benefit claimed by an applicant will not be granted, or will be cancelled, if the decision-maker is not persuaded that particular facts exist: see McDonald v Director-General of Social Security (1984) 1 FCR 354 per Woodward J at 357, Jenkinson J at 369. In the context of refugee decision-making, the High Court has emphasised in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and Guo, referred to above, that the law requires that the Minister (and this Tribunal standing in the shoes of the Minister on review) must be ‘satisfied’ that a person is a refugee. (The statutory law considered in those decisions has undergone significant changes but those changes are not material for the present purpose: as set out above, it is still the case that the Minister must be ‘satisfied’ that an applicant for a protection visa satisfies the criteria prescribed for the grant of that visa.) As Kirby J said in the latter case (at 596):

   ‘the mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for reasons of political opinion.  It remains for the minister in the first place to be “satisfied” and, where that decision is adverse and a review is sought, for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.’