1514248 (Refugee)

[2016] AATA 3969

1514248 (Refugee) [2016] AATA 3969 (2 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1514248

COUNTRY OF REFERENCE:                  India

MEMBER:Amanda Paxton

DATE:2 June 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 02 June 2016 at 10:37am

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] December 2014 and the delegate refused to grant the visa [in] September 2015.

3. The applicant appeared before the Tribunal on 6 May 2016 to give evidence and present arguments.

   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 has taken into account 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.

    Credibility

19. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

20. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

21. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

22. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

23. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. The applicant’s claims can be summarised as follows.

25. The applicant, who is [age] years old, was born in [Village 1], [District 1], Haryana, India. His mother passed away when he was [age] years old and he grew up with his father and sister, living in a joint family property with his father’s two [siblings], his [relatives], and their families.

26. The applicant first arrived in Australia [in] June 2007 as the holder of a [Student] visa.  He returned to India from [date] May to [date] August 2010 on the death of his father, and again from [date] December 2010 to [date] February 2011 for the marriage of his sister.

27. The applicant was granted [Student] visas on [date] June and [date] December 2011.  He studied first at [College 1] but when this institution closed down, he moved to [College 2] and completed a Diploma in [subject].

28. The applicant married his partner of [number] years in 2013, and applied for a Combined Partner visa. However, this relationship broke down. The applicant withdrew that application [in] August 2013 and applied for a further Student visa which was refused in [date] September 2013 and affirmed by the Migration Review Tribunal [in] January 2014. He requested Ministerial intervention under section 351 of the Migration Act [in] February 2014. His request was finalised as 'not considered' [in] October 2014. He applied for a Protection (Class XA) visa [in] December 2014.

29. The applicant’s family property was originally in the applicant’s grandfather’s name. The applicant’s grandfather died without a will and the property was divided equally between his three[children], the applicant’s father and his two [relatives]. The applicant does not know if any legal arrangements were made to confirm the entitlements of each [child], and he has not seen any formal documentation about the property. He states that the property may still be in the grandfather’s name, but he believes his father’s land would have been in his father’s name.

30. The applicant’s father died very suddenly at [age] years old in 2010. At that point, the applicant’s father’s property should pass to the applicant. The applicant is not sure of the formal legal situation but believes that if he, as the rightful owner is not there, then the land entitlement would flow to his [relatives] who would divide it between them.

31. The applicant returned to the family home in 2011 for his sister’s wedding. At stage his relationship with his [relatives] was fine. It was after the applicant’s sister married and left the house to go to her husband’s home, and neither the applicant who was in Australia nor the applicant’s sister were resident in the house, that the dispute with his [relatives] started.

32. The applicant’s sister returned to the house on one occasion and her [relatives] threatened her, saying that it was no longer her house. They did not let his sister back into the house and told her that she should not come back and neither should her brother. They told the applicant’s sister to tell the applicant not to come back, that he has nothing to do with the house and land anymore. The applicant stated that his uncles did not say directly that they would kill him, but they threatened that if he returned he would not be safe. His sister left the house and did not feel safe there.

33. The applicant stated that his sister said that his [relatives] were trying to take over property. If he returns then the property would have to be separated into 3 parts which would be very disadvantageous to his [relatives]. If the applicant remains in Australia, they may not “own” the land but they would have its use. The [relatives] will not want to negotiate with him to resolve the situation because it is not in their interests financially. The applicant believes that his [relatives] will try to find a way to kill him.

34. The applicant stated that a few months after his sister had gone to the house, she went to the police local to the property to have an First Incident Report raised because she did not feel safe. The applicant does not know what the contents of the FIR were but stated that his sister made the report to protect her security, so that if anything were to happen to her, there would be an explanation. The applicant stated he can provide a copy of the FIR.

35. The Tribunal enquired whether the applicant could also go to the police and lodge a complaint and seek protection. The applicant stated that his [relatives] could bribe the police and get away with killing him. His sister stated that the [relatives] have the police on their side because they are corrupt.

36. The applicant was [age] years old when he left India and Australia feels like home to him. It was like heaven for him, a new life. He feels like he has grown up here. He has also suffered a lot here, especially through the period of his relationship with his former spouse. He has had no financial support from home and lives with the assistance of his friends. The applicant, who is now [age] years old, now has nothing and wants only the opportunity to have a better life in Australia. The applicant would also experience hardship if he returns to India because there is nothing there for him; he has nothing to go back to, no friends there, and no savings.

    Country of reference

37. The applicant claims to be an Indian national. Based on the copy of his passport, the Tribunal finds that India is his country of nationality for the purposes of the Convention and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

    Assessment of claims

38. The issue in this case is whether the applicant faces a real chance of serious harm now or in the foreseeable future, or the real risk of significant harm on return to India.

39. The applicant was articulate and passionate in presentation of his circumstances. However, he was vague and limited in discussion of key aspects of his claims, and the Tribunal formed the view that the applicant lacked credibility in areas central to his claims. 

40. On the basis of the documentary evidence before it and the applicant’s oral evidence, the Tribunal accepts that the applicant is now [age] years old, and was born in [District 1], India. The Tribunal accepts that the applicant first arrived in Australia in June 2007 to study, returning to India in May on the death of his father, and again in December 2010 for the marriage of his sister. The Tribunal accepts that the applicant married in Australia in 2013, and applied for a Combined Partner visa but that this relationship broke down and the applicant withdrew that application, lodging a [Temporary]visa which was refused in [date] September 2013 and affirmed by the Migration Review Tribunal in 2014.

41. On the credible oral evidence of the applicant, the Tribunal accepts that his mother passed away when he was [age] and that his father passed away suddenly in 2010. The Tribunal accepts as credible that the applicant grew up in a joint family home, in a house shared by his father and two [relatives]. While the applicant did not know about any legal arrangements for the property, the Tribunal accepts, as plausible, that the applicant’s father and his two [relatives] each had entitlement to a third of the land making up the property. The Tribunal accepts the applicant’s evidence that on the death of his father, his father’s portion of the land would normally be passed on to him.

42. The Tribunal has considered the applicant’s claim that he cannot return to India because his [relatives] will kill him to enable them to obtain his share of the family property. The Tribunal did not find the applicant to be a credible witness in respect of this claim for the following reasons.

43. The applicant claims that his [relatives] threatened his sister not to return to the house and told her to relay a message to the applicant that he should not return, and that for this reason, a few months after this event, the applicant’s sister made a complaint to the police in the station local to the house to provide her with protection and an FIR was raised. The Tribunal does not find this claim credible because:

    ·     The applicant was vague about when his sister did this, and said that it was a few months after she went to the house. The Tribunal would expect the applicant to be able to present clear detail in relation to a matter of such significance to his circumstances, including awareness of when his hiss took this action. The Tribunal also finds it difficult to believe that the applicant’s sister would wait a few months before taking this action if she was concerned about her safety. The Tribunal would expect the applicant’s sister not to delay in taking this action.

    ·     The applicant stated that he could obtain the FIR from his sister by email and provide it to the Tribunal. The applicant agreed to the Tribunal’s request that he provide the FIR to Tribunal within the following two weeks, i.e. before [date] May 2016. To date, the Tribunal has not received a copy of the FIR from the applicant.

    ·     The applicant did not know what his sister had put forward in the FIR and had not seen it. The Tribunal would expect that the applicant to be aware of the contents of the FIR if it actually exists.

    On the evidence before it, the Tribunal does not consider the applicant to be a witness of truth in respect to his claim that his sister feared for her safety from her [relatives] and went to the local police and raised an FIR in relation to these fears. On this basis, the Tribunal does not accept that the applicant’s sister was threatened by her [relatives] for any reason and that she went to the police to provide her with protection.

1. At the hearing, the Tribunal asked whether the applicant had considered talking with the police about his situation if he was concerned about his safety on return home in the same way it is claimed his sister did. The applicant responded that his [relatives] could bribe the police and get away with killing him, and that his sister stated that the [relatives] have the police on their side because they are corrupt. The Tribunal considers this statement is inconsistent with the claim that the applicant’s sister raised an FIR with the local police to ensure they had visibility of the claimed family dispute over land to gain their protection, an action which suggests a sound level of confidence in the local police on the part of the applicant’ sister. The Tribunal considers this lack of logical consistency castes serious doubts on the credibility of the applicant claims in respect to police protection.

2. The Tribunal also considered the applicant’s response to questions concerning his claim that his [relatives] could bribe police and he could therefore not obtain police protection if he feared harm from them to be vague and limited. The Tribunal acknowledged certain independent county reports which have characterised officers at police station level as “subject to corruption and political influence”[1], but noted, and sought comment about, advice from the United Kingdom Home Office from February 2015 that:

   Nevertheless, steps have been taken in various states to improve police effectiveness. Although there has been a substantial increase in the number of crimes recorded by the police in recent years, a high percentage of investigations – particularly for violent and other serious offences – result in suspects being formally charged and cases proceeding to court. There are legal remedies for serious police misconduct such as torture or abuse of office…In general, a person is likely to be able to access effective protection from the state…”[2] 

   The Tribunal considered the applicant’s comment that the police could be bribed because his area it is a small town. However, the Tribunal does not consider that the applicant’s circumstances, i.e. that his home is in a small town, are such that the country information concerning the general ability for people to access effective protection from the state does not apply to him. On this basis, the Tribunal does not accept that the applicant’s claim that he could not obtain effective protection from police because his [relatives] could bribe them.

   [1] United Kingdom Home Office, Country Information and Guidance: India Background Information, including actors of protection, and internal relocation, February 2015, P. 4

   [2] United Kingdom Home Office, Country Information and Guidance: India Background Information, including actors of protection, and internal relocation, February 2015, P. 4

3. The Tribunal made enquiry with the applicant about the status of the property. The applicant was very vague in his response, and indicated no knowledge of his legal entitlements to the land. The Tribunal would expect that if the applicant was in dispute with his [relatives] about the property that he would seek clarification about his entitlements from the authorities.

4. Although the claims made in the applicant’s protection visa were very limited, they did not accord with his oral evidence at the hearing.  The applicant stated that he had written the claims in his application himself and that they were correct. At Question 46 of his application, the applicant stated that “ …my sister overheard my [relatives] who were trying to kill to obtain all the property which belongs to me…” This does not accord with the applicant’s statement at the hearing, where he said that his [relatives] told his sister when she went to the house that the applicant would not be safe but did not “specifically say that they would kill him”. Given the seriousness of these claimed threats, the Tribunal would expect there to be a high level of agreement between the applicant’s written and oral statement in regard to the nature of these threats and how they were made. The lack of consistency between the applicant’s written and oral statement leads the Tribunal to doubt the credibility of the applicant.

5. Taking all the above evidence into account, the Tribunal is not satisfied as to the applicant’s general credibility. On this basis, the Tribunal does not accept that the applicant’s life has been threatened by his [relatives] to enable them to acquire his land. The Tribunal does not accept that the applicant’s sister was threatened by her [relatives], nor does it accept that she sought protection for the local police by raising a complaint against the [relatives] and obtaining an FIR. The Tribunal finds that the applicant does not face a real chance of serious harm in the foreseeable future from his [relatives] because they want to obtain his property. The Tribunal finds the applicant does not face a real risk of significant harm from his [relatives] because they want to obtain his property on return to India. 

6. The Tribunal acknowledges that the applicant may experience difficulties on return to India because he has been in Australia for a long period, nine years and considers Australia to be home. The Tribunal also acknowledges that the applicant suffered hardship when his marriage in Australia broke down and that he has had to rely on friends to support him in Australia. The Tribunal acknowledges that the applicant wants the opportunity to have a better life in Australia. The Tribunal acknowledges that the applicant no longer has friendship ties in India and does not have saving to draw upon on return. The Tribunal has considered these circumstances having regard to the non-exhaustive examples of serious harm in s.91R of the Act, and the definition of significant harm in ss.5 and 36(2A) of the Act. In this consideration, the Tribunal notes that the applicant is educated, speaks English, Hindi and Punjabi, and, as discussed with the applicant at the hearing, independent country information indicates that the Indian economy is growing and job opportunities exist for people of his skills.[3] In response, the applicant commented that he does not know what opportunities exist because does not have friends to keep him up to date with the situation in India. On the evidence before it, the Tribunal finds that the applicant will be able to find employment and support himself on return to India. The Tribunal also notes that the applicant is in touch with his sister in India and finds that he could obtain emotional support from her on return. The Tribunal finds that the applicant’s circumstances do not constitute either serious harm for the purposes of s.91R of the Act or significant harm for the purposes of ss.5 and 36(2A) of the Act.

   [3] United Kingdom Home Office, Country Information and Guidance: India Background Information, including actors of protection, and internal relocation, February 2015

7. Based on the findings and reasons above, the Tribunal finds that the applicant does not face a real chance of serious harm now or in the foreseeable future. Consequently, the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason if he returns to India.

8. Based on the findings and reasons above, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India that there is a real risk that he will suffer significant harm.

   CONCLUSION

9. 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).

10. 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 is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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.

    Amanda Paxton
    Senior Member