1513900 (Refugee)

[2016] AATA 4345

1513900 (Refugee) [2016] AATA 4345 (22 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513900

COUNTRY OF REFERENCE:                  India

MEMBER:Suzanne Carlton

DATE:22 August 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 22 August 2016 at 9:46am

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 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] September 2013 and the delegate refused to grant the visa [in] September 2015.

3. The applicant appeared before the Tribunal on 19 August 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

   RELEVANT LAW

4. 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

5. 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).

6. 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.

7. 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.

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

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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

15. 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’).

16. ‘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.

17. 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

18. 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

19. 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.

20. The Tribunal has before it the Department’s file relating to the applicant’s protection visa application.  According to the information provided on the application form, the applicant is [an age]-year-old citizen of India who entered Australia [in] December 2008 on a student visa, valid until [April] 2011.  The applicant, during the hearing, confirmed this information, as well as the rest of his immigration history, as follows.

21. He applied for a second student visa in March 2011, but that was refused.  He sought review of that decision before the Migration Review Tribunal (MRT), as it then was (differently constituted).  The MRT affirmed that decision in September 2011.  The applicant appealed the MRT decision to the Federal Magistrates Court.  In May 2013 the court affirmed the MRT decision.  In June 2013 the review applicant sought the intervention of the Minister, which was declined in September 2013.  Later that month, he made this claim for protection.  He has since held a series of Bridging visas E.

22. Before the Department, the applicant provided claims in his protection visa.

23. According to the information provided by the applicant to the Department, he claimed that he left India in order to study overseas, as he “fear[s] for [his] life in India”.[1]

    [1] Department file [number] Folio 12.

24. He stated that he had experienced harm in that country when “there was an attempt to stab me to death but my neighbour saw the man and alerted everyone by shouting and I was saved.”[2]

    [2] [number] Folio 11.

25. He further stated that he feared harm if he were to return because he would “be murdered”[3] by an “influential Hindu leader and family of the girl”.[4] He said that this fate would befall him because he was Sikh[5] and that the authorities could not protect him because:

    …there are numerous cases of honour killing going on in India and government has always failed to protect us.[6]

    [3] Ibid.

    [4] [number] Folio 10.

    [5] Ibid.

    [6] [File number] Folio 9.

26. The applicant was invited to attend an interview with the Department but the invitation was returned to the sender.  The Department proceeded to a decision to refuse the visa, finding that there was no well-founded fear of persecution and finding that the applicant was not credible.

    Review application

27. No further documents or submissions were tendered to the Tribunal, either prior to or after the hearing. At the hearing, the applicant confirmed that he understood the interpreter.

28. He told the Tribunal that he was born in a village in Punjab, where there were “200 to 300 houses”.  His parents and [specified relatives] still live in that village, but his married sister lives in another village in Punjab.

29. He said that his father was retired from [his employer], where he had worked as [an occupation].  His mother has not worked outside of the home. 

30. The applicant said that he had completed a [subject] degree in India before coming to Australia and completing two Certificate III courses.  He speaks Punjab, Hindi and some English.

31. It was while he was studying in India that he claims to have met a Hindu girl, [Ms A].  She was from the city of Jalandar and her father owned a [business].  Her father is said to be well-respected but appears to hold no official position in his community. 

32. The applicant states he and [Ms A] fell in love and began seeing each other, but her family was opposed to the relationship because of the applicant’s religion.  He states they forbade her to see him, so the two met secretly. 

33. Prior to the applicant’s graduation, her parents threatened, telling him to keep him away from their daughter, he states. He says that between 2007 and 2008 he received numerous threats.  He believed that going to study in Australia would be fairly straightforward and so took the IELTS exam and applied. 

34. Three or four months before coming to Australia, he states that he was attacked by [Ms A’s] [number] brothers.  They attacked him with a knife, requiring him to have [specified treatment].  They told him that next time, they would kill him. 

35. The applicant said that he spent the remaining time in India, before coming to Australia, in his home and that he didn’t go out.

36. Since coming to Australia, he states he has remained in telephone contact with [Ms A].  He last spoke with her two or three months ago.  He said that after that, the number he called her on no longer worked.

37. In response to the Tribunal’s questions, he advised that [Ms A] lived with her parents and did not work.  In order to contact each other, she would call from a friend’s landline or a friend’s mobile phone and he would then call her back.

38. The applicant states that his parents have also been threatened since he came to Australia. The threats were said to be along the lines of ‘tell your son to stay away or we will kill him’.

39. The applicant last spoke with his parents about two weeks ago.  He said they have not been threatened for about six months. 

40. The Tribunal asked about the most recent threat six months ago.  The applicant said that his parents had arranged a meeting with her parents and that it was held at the home of the applicant’s village [Village 1].  Other people also attended.  There, [Ms A’s] parents told the applicant’s parents to advise their son to leave their daughter alone or they would kill him.

41. When asked if the applicant had any other reason to fear returning to India, he said that the general atmosphere in the lead-up to the February elections in Punjab is violent and people tend to use that time to engage in personal vendettas.  It was, according to the applicant, a very dangerous time for him.

    Credibility

42. The Tribunal expressed concern about the applicant’s delay in making a protection visa application.  The Tribunal noted that the events forming his claims occurred prior to his arrival in Australia in 2007 and 2008 and were claimed to be the reason for his departure from India.  The applicant did not apply for a protection visa until September 2013, after he had been without a substantive visa for more than two years.  In response, the applicant said that he was unaware of the existence of protection visas.

43. The Tribunal expressed its concern with the applicant’s response, given that he had known to apply for subsequent student visas, merits review, a federal court appeal and a ministerial intervention in that time.  The Tribunal also expressed its concern that the applicant, in his 2013 ministerial intervention application, made no mention of these concerns or anything relating to his protection visa claims. 

44. To this, the applicant responded that he did not realise how bad things would get back in India.  The Tribunal asked what had changed between applying for ministerial intervention and applying for the protection visa.  He said that [Ms A] told him then not to come back or he would be killed.  When the Tribunal put to him that this was the crux of the threat he said caused him to flee his country, he agreed but said the difference was he did not then take it seriously.  The Tribunal suggested that he appears to have treated the threat seriously enough to leave India, on his account of events.  He agreed with this suggestion.

45. The Tribunal also developed other concerns about the applicant’s evidence to it. The Tribunal notes that the applicant said he had not spoken with [Ms A] in two or three months because the telephone number no longer worked.  Given that he advised the Tribunal that her practice was to call him from a friend’s landline or mobile phone and that he would then call her back, the assertion that her phone number no longer works is nonsensical. 

46. While in his 2013 application to the Department, the applicant indicated that one man tried to stab him to death, he told the Tribunal that the knife attack he had experienced was at the hands of [Ms A’s] [number] brothers.  That was the only incident of physical violence or threat of physical violence that the applicant was able to recount at hearing.

47. While in his 2013 application to the Department, the applicant made no mention of an actual physical injury, he told the Tribunal that he had been cut on his [body part] – an injury requiring [treatment] – during an altercation with [Ms A’s] brothers. 

    Other concerns

48. The Tribunal asked whether it was possible that he was no longer in danger as there had been no threats against the applicant or his family for six months.  He accepted this was possible.

49. The Tribunal asked whether it was possible that, as he had not spoken with [Ms A] in two or three months, she may no longer be interested in a relationship with the applicant and may even be married to another person. He acknowledged the possibility, stating that it was possible there would be no ongoing threat to him if that were the case.

    FINDINGS AND REASONS

50. On the basis of the applicant’s passport copy on the file and in the absence of evidence to the contrary, I find that he is a national of India.

51. The applicant claims that if he returns to India he faces persecution from the family of a Hindu girl and that her father is very influential. He claims that the authorities in India cannot or will not protect him.

52. I have had regard to the fact that the applicant did not make a protection visa application until after he had exhausted all options with respect to his student visa in 2013 and after he had been without a substantive visa for more than two years.  Given the fact that he was aware of the ease in getting a student visa and that he subsequently applied onshore for a second student visa, merits review, federal court appeal and ministerial intervention, I do not accept that he was unaware of the existence of protection visas for the five years he spent in Australia prior to lodging his visa application.  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 prior to his departure from India in 2008.

53. Despite his evidence that he left India on the student visa because he was afraid of further attack, there was no mention of this in the ministerial intervention application.  I do not accept his explanation of why he did not then include it. 

54. Generally, I find that the applicant was not a credible or truthful witness.

55. I do not accept that the reason he came to Australia on a student visa was because he then feared for his life.  I do not accept his explanation of why he did not apply for a protection visa earlier but instead waited until he had exhausted all other options.

56. I do not accept his explanation of why he did not include his claims of persecution in his ministerial intervention application. 

57. I do not accept that he and his family have been threatened with the applicant’s death for any reason, including the reason of an inter-faith relationship. I do not consider that he or his family have been targeted, threatened or harassed.

58. I do not accept that he suffered any physical injury at the hands of [Ms A’s] family.

59. I consider that the stated absence of communications between [Ms A] and the applicant and [Ms A’s] family and the applicant’s family over the recent months indicate that any risk the applicant may have faced is remote and that he thus faces no real chance of persecution. 

1. While I accept that there is often an increase in generalised violence in the lead up to elections and that persons may use that atmosphere to commit personal acts of revenge, as I do not consider that applicant is begin targeted for revenge, I also do not consider that India is too violent for him to return at this time.

2. 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).

3. 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).

4. 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

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

   Suzanne Carlton
   Member