1513605 (Refugee)

[2018] AATA 1526

1513605 (Refugee) [2018] AATA 1526 (14 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513605

COUNTRY OF REFERENCE:                  India

MEMBER:Nathan Goetz

DATE:14 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 14 May 2018 at 3:15pm

CATCHWORDS
Refugee – Protection visa – India – Social group – Associated with Dera Sacha Sauda (DSS) – Attacked by Sikh youth foundation – Delay in protection application – Inconsistent evidence – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 36, 424AA, 499
Migration Regulations 1994, Schedule 2

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 and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 19 August 2014 and was interviewed by the delegate on 2 September 2015. The delegate refused to grant the visa on 11 September 2015.

3. The applicant applied for a review of the delegate decision with the Tribunal on 6 October 2015 and appeared before the Tribunal on 14 May 2018 to give evidence in support of his claims. The hearing was conducted with the assistance of a Hindi interpreter.

   NON-DISCLOSURE CERTIFICATE UNDER S.438 OF THE ACT

4. Attached to the departmental file was a certificate regarding disclosure of certain information under s.438 of the Act. The certificate claimed that the information was given to the department in confidence and that the source has an expectation of anonymity. The certificate claims that the identification of the source of the allegation should not be disclosed or by extension, any information contained within the allegation that would have the potential to identify the source.

5. The Tribunal advised the applicant of the existence of the certificate and invited him to make submissions as to the validity of the certificate. The Tribunal explained to the applicant that the information was an attempt to undermine the applicant’s credibility. The applicant did not make submissions about whether the certificate was valid or invalid.

6. The Tribunal has considered the information contained in the certificate. The Tribunal considers that the certificate is valid because the disclosure of the information would lead to the identification of the source of the information and that it would be harmful to the department and the source if the information was disclosed. Therefore, the certificate is valid.

7. That being said, there is no way that this information could be of assistance to the Tribunal when determining this application. The Tribunal does not know whether the source is credible and could not determine the motivations of the author in providing this information. Further if any of the information was put to the applicant and he denied it, there would be no satisfactory evidentiary basis for the Tribunal to favour the information over the applicant’s explanation. Given the concerns about relying on this information, the Tribunal advised the applicant that it did not propose to exercise its discretion to disclose the information to the applicant, and advised the applicant that the Tribunal would put that information to one side and exclude it from its reasoning process when determining the application.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   What are the applicant’s claims?

8. The applicant’s claims are contained in his written application for a protection visa, which had been signed by him. The applicant declared in the written application that he completed without assistance and without an interpreter on 14 August 2014.

9. The applicant claimed that he is an Indian citizen born [in] Karnal city, Haryana province, in the Republic of India. He wrote that he can read and write both English and Hindi, but can only speak Hindi. He wrote that his religion is Hindu and that he has never been married.

10. The applicant completed [a number of] years of schooling [in] Karnal, India between [year] until [year].  He had not lived in anywhere other than India, nor had he travelled outside India prior to his journey to Australia. From January 1999 until August 2008 he lived at [an address], Haryana in India.

11. The applicant claimed that that he had entered Australia on a student visa on 18 September 2008 on an Indian passport which had been issued [in] 2006 and expired [in] 2016. He left from Delhi airport and did not experience any trouble obtaining travel documentation to leave India. This passport had been issued at Chandigarp. A copy of the passport was submitted with the application.

12. Since arriving in Australia, he had lived at [an address] from September 2008 until October 2010. From November 2010 until June 2012, he lived at [another address]. From July 2012 until August 2014 when he completed his application, he lived at [another address].

13. He wrote that he had no supporting documentation as evidence to support his claims and was not in contact with relatives in his home country.

14. A one and a half page document was submitted with his application to address his need for protection. The applicant stated the following:

    I, [applicant name] an Indian citizen arrived in Australia on September 2008 on a student visa. I missed my family, I used to talk to them but had the serious threats on my life. I tried to talk to them but they just want me to send them money all the time or threat me not to come in India. They found out where I living in Australia and they send some of their relative to threaten me, they took $[amount] from my wallet too. When they found out where I was hiding they attacked me. I was very lucky to escape from them. I left [the state] and never returned there since arriving in Australia.

    All my family members are associated with the spiritual organisation named Dera Sacha Sauda. My father works as a volunteer for Dera Sacha Suda. I was also involved with Dera Sacha Suda while I was in India. The leader of the ‘Dera Sacha Suda’ Gaurmeet Tam Raheem Singh was well respected in Karnal, Harynana.

    We have educational and welfare society, drug rehabilitation centre and hospital. We also organised blood donation camps. Through spiritual congregation we inspired people to give up their addiction. Mostly the poor and disadvantaged people benefited from our organisation.

    As we were increasing our activities for our people who needed really help. We were accused of insulting Sikhism and the controversy developed in to serious law and order problems in various parts of India. It was in May 2007. Our house was set on fire and we had to leave our village.

    The member of Sikh youth foundation to Sikh factions increased their foothold in our area and the conflict between our organisation and Sikh polarised the people and threats of social conflict became greater.

    While these members of Sikh youth federation stepped up their efforts to garner support it became more and more difficult to resist. My family members were constantly being targeted.

    I have no safe place to go and I am very worried about my safety if I have to return back to India.

    I have a kindly request Sir/Madam if I can get a chance to stay in Australia and I will be a really good citizen, will follow all the rules and regulation. I need a visa to stay here and work here so I can start my life again and replay my debt which I got from a few good friend for my rent and grocery. Thank you

    Regards,

    [Applicant name]

    What are the criteria for a protection visa?

15. 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.

16. 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).

17. 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.

18. 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’).

    What is the material that the Tribunal considered in this application?

19. The Tribunal considered the material that was contained in both the departmental file [and] the Tribunal file 1513605. The Tribunal notes that the applicant did not provide the Tribunal with a copy of the delegate decision.

20. The Tribunal has also had regard to the applicant’s oral evidence given to Refugee Review Tribunal on 11 June 2011 and the decision record of that Tribunal of the same date.

21. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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. In this application, the relevant DFAT country information report is dated 15 July 2015. The Tribunal has also considered the Department of Immigration and Border Protection Issue Paper titled ‘India: Sikhism, Caste and Deras” dated September 2013.

    FINDINGS AND REASONS

22. The issue in this case is whether the applicant is a refugee, and if not, whether he is entitled to complimentary protection. The Tribunal also needs to consider whether the applicant is a member of the same family unit as a person who holds a protection visa.

23. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of reference

24. The applicant provided a copy of his most recent Indian passport as part of his protection visa application and there is no information to suggest he is anything other than a citizen of India. Therefore the country of reference is India.

    Is the applicant a credible witness?

25. The Tribunal has had regard to various inconsistencies between the applicant’s written application, his oral evidence to this Tribunal, and his oral evidence given to another Tribunal. It has also had regard to country information which suggests that the applicant would not be at a risk of serious harm if he were to return to India. These concerns are discussed below.

    Claims in written application

26. The applicant told the Tribunal that despite his written application stating that he had not had assistance completing the form; in fact he had received assistance. He told the Tribunal that the assistance was received from a [Mr A], who was not a migration agent but a friend. He told the Tribunal that he told [Mr A] why he could not return to India and that [Mr A] completed the form on behalf of the applicant. There were issues between the applicant’s residential history in his written application and his oral evidence, and the applicant stated that [Mr A] had gotten the dates wrong and left some addresses out. That being said, the applicant had signed the application declaring that it was true and correct and affirmed that he had told [Mr A] about his concerns about returning to India and that [Mr A] completed the forms on the applicant’s instructions.

27. The applicant’s oral evidence to the Tribunal about his need for protection was very different to his written application. The applicant told the Tribunal that he had not been threatened by his family. His oral evidence was that his father told the applicant some six months into his student visa that the situation in India ‘increased’ and his father told him that he should not return to India and should stay in Australia. He told the Tribunal that he had never been attacked by his relatives in Australia, although he said that there was a fight in Australia between his friends and some distant relatives. Relatives had not stolen money from the applicant and his family did not threaten him for money.

28. The applicant was asked whether anything had happened to him while he was in India. He told the Tribunal that he had some verbal arguments with ‘Sikh boys’ but there was nothing else that had happened to him. The applicant told the Tribunal that there was an incident that happened with his father when ‘5 or 6’ people followed his father to the family home and surrounded his father. These people did so because his father was involved in Dera Sacha Sauda (DSS), which is a spiritual and social movement. The applicant told the Tribunal that he was not ‘really aware’ of the DSS as he was only [age] to [age] years of age when there were troubles because of involvement with DSS. He was not really involved in the organisation and followed his father when his father undertook DSS activities. The applicant said that subsequently other people came and sorted this issue out for his father and the issue is now ‘settled’. The applicant told the Tribunal that nothing else had happened to him or his father in India. He told the Tribunal that his family had always lived in the same home in India, although he was told that his family had relocated at one stage due to local problems, which was subsequent to his arrival in Australia as he had been told that his relatives had relocated for a period of time.

29. Utilising the procedure under s.424AA of the Act, the Tribunal put to the applicant that the oral evidence he had given to the Tribunal was very different to his written application where he said that his family had threatened him not to return to India, had arranged for relatives to find him in Australia and taken money from him, and had ‘attacked him’. Further, the applicant had written that his family home was set on fire in May 2007 (when he was still in India) and they had left their village as a result. This information, which had been provided by the applicant in written form, was starkly different to his oral evidence and the Tribunal informed the applicant that this inconsistency might suggest that the applicant was not telling the truth. The applicant responded that he ‘cant’ recall everything that had happened’.

30. The Tribunal rejects the applicant’s explanation that he ‘cannot recall everything that happened’ as a basis for explaining these inconsistencies. It would be reasonable to expect that someone whose family home was set on fire which resulted in he and his family having to leave their village would be able to tell the Tribunal about this event. Further, the applicant’s oral evidence that he was told that his family had relocated at some point due to problems in the village contradicts his written application that this occurred in May 2007, which was when he was in India with his family cannot both be true.

    Oral evidence given in support of his student visa review

31. In his oral evidence, the applicant stated that he had left India to go to Australia on a student visa to study, but that his father had said that he should do so because of the situation back in India. The applicant told the Tribunal that everything was fine for the first six months on his student visa. Six months into his studies, the applicant was told by his father that things had gotten worse back in India and his father told the applicant that he should stay in Australia. The applicant told the Tribunal that this information, in combination with the news that his grandmother was ill and dying, caused him not to be able to focus on his studies which ultimately lead to his student visa being cancelled in 2010.

32. The Tribunal questioned what the applicant’s plan was regarding his stay in Australia, noting the claimed situation back in India. The applicant told the Tribunal that he had planned to complete his studies and remain in Australia on permanent residency because he could not return to India. Given that a student visa is for a definite period and there was no guarantee that the applicant would be successful in gaining permanent residency, the Tribunal queried why the applicant did not apply for a protection visa once he became aware of the unrest back in India. The applicant told the Tribunal that it was because he did not know about the protection visa system until 2014 when a friend, [Mr A], told him that he could apply for a protection visa. [Mr A] advised the applicant of this when they were both living in [a certain city], when the applicant told [Mr A] about the situation back in India.

33. Utilising the procedure under s.424AA of the Act, the Tribunal put to the applicant that he had applied to the Tribunal for a review of the decision cancel the student visa and attended a hearing on 11 June 2011 in case 1100167. At that hearing, the applicant had told that Tribunal that his plan was to complete present his studies, undertake a degree course, and then return to India to run a business. He also told that Tribunal that the reason he had difficulties with his studies, leading to the cancellation of his visa, was due to the fact that his grandmother was ill and subsequently died, and that he had made no mention of his claimed fear of returning to India to that Tribunal. The applicant responded that he had told ‘lots of things’ and that at the time his ‘mental state was not in order’ and that he ‘could not recall this’.

34. The Tribunal rejects the applicant’s explanation for the conflict in his evidence. As discussed with the applicant, the Tribunal had listened to the recording of the hearing and it did not appear that he was suffering from any distress. He was able to answer that Tribunal’s questions competently and was clear about his intention to return to India and that it was his grandmother’s illness and death which gave rise to the inattention to his studies. It would have been reasonable to expect that if the applicant could not return to India because of the situation there, he would have said so to the Tribunal.

    Delay

35. The applicant lodged his protection visa application on 19 August 2014, having been in Australia since 18 September 2008. He became an unlawful non-citizen on 26 June 2011 subsequent to the Tribunal affirming a decision to cancel his student visa and remained so until 19 August 2014 when he lodged his application for a protection visa and was granted an associated bridging visa. When asked for the reason for the delay in applying for a protection visa, the applicant again said that he did not do so until he told [Mr A] about the concerns he had about returning to India, and [Mr A] advised the applicant about the protection visa system in Australia.

1. Utilising the procedure under s.424AA of the Act, the Tribunal put to the applicant that he had been on a student visa and navigated an appeal of a department decision to the Tribunal, so it appeared that he had some understanding of the visa system. The Tribunal further put to the applicant that if he had genuine fears about what would happen to him if he returned to India, the applicant would not have waited until having a discussion with [Mr A] about his situation to take some action to regularise his migration status. The Tribunal put to the applicant that this delay suggested that the applicant did not have a genuine fear of returning to India and only put in a protection visa application to regularise his migration status and remain in Australia. The applicant said that he had no response in relation to the Tribunal’s concerns.

   Country Information

2. Utilising the procedure under s.424AA of the Act, the Tribunal put to the applicant that country information appeared to undermine his claim about the current situation in India for DSS followers. According to the Department of Immigration and Border Protection Issues Paper “India: Sikhism, Caste and Deras” dated September 2013 at 3.1.4:

   “No sources were located indicating that ordinary follower of DSS are targeted for harm by the dera’s opponents…Sources do indicate that DSS activist meetings and rallies were the subject of protests and some violence in the past, particularly in 2007. While anti-DSS rhetoric continues to be enunciated by some religious and political groups, acts of violence or harassment against DSS activists are no longer common.”

3. The Tribunal further put that it appeared that authorities were in a position to provide protection to DSS members, noting that in the same report in stated at 4.3

   “Police have provided a high degree of protection to DSS meetings and the DSS leadership”

4. The applicant said that he had no response to this country information.

   Findings

5. Taking the inconsistencies and independent country information into account individually and cumulatively, the Tribunal is satisfied that the applicant is not a credible or truthful witness. The applicant’s written application is in stark contrast to his oral evidence. The applicant has told another Tribunal that he wanted to return to India and that the reason for his trouble studying in Australia was due to his grandmother’s ill health and death. The first time that the applicant spoke of his fear about returning to India was when he lodged his protection visa application in 2014, despite being in Australia since 2008 and becoming aware of concerns about the situation in India ‘six months into his student visa.’ It is incredible for the Tribunal to believe that this applicant, who has come out to Australia to study and was able to seek a review of his student visa cancellation with a previous Tribunal would delay his protection visa application for such a long time. The Tribunal is satisfied that the applicant, who found himself unlawfully in Australia following the decision to affirm the delegate decision to cancel his student visa, lodged a protection visa application to regularise his migration status and to remain in Australia, and not out of a genuine fear of returning to India.

6. The Tribunal is not satisfied that the applicant or his family has had any involvement with DSS back in India. Tribunal is not satisfied that the applicant or his family has suffered any harm in the past due involvement with DSS. The Tribunal is not satisfied that the applicant has suffered any harm in Australia from his family or relatives. The Tribunal is not satisfied that if the applicant was to return to India he will face a real risk of serious harm due to his, or his family’s purported membership of DSS. Further, the Tribunal is not satisfied that the applicant will face significant harm if he was to return to India. The Tribunal has rejected the applicant’s claims completely because the Tribunal has found that the applicant is not a credible witness or a witness of truth. The Tribunal is satisfied that the applicant has invented his claims for protection in an attempt to achieve a migration outcome.

   CONCLUSION

   Refugee Criteria

7. The Tribunal has considered whether there is a real risk that the applicant will face serious harm now or in the foreseeable future due to his association with DSS if he were to be removed from Australia to India.

8. 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).

   Complimentary Protection

9. 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 has considered whether there is a real risk that the applicant will face significant harm now or in the foreseeable future if he were to be removed from Australia to India. Significant harm is arbitrary deprivation of life, the death penalty, torture, or cruel, inhumane or degrading treatment or punishment.

10. 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 s.36(2)(aa).

    Membership of the same family unit as a person who has a protection visa

11. 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

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

    Nathan Goetz
    Member