1514492 (Refugee)

[2017] AATA 3144

1514492 (Refugee) [2017] AATA 3144 (1 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1514492

COUNTRY OF REFERENCE:                   India

MEMBER:C. Packer

DATE:1 May 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 01 May 2017 at 12:40pm

CATCHWORDS
Refugee – Protection visa – India – Previous unsuccessful appeals –  Whether the applicant is entitled to complementary protection – Political opinion – Bharatiya Janata Party (BJP) and Shiv Sena supporter – Minor political connections to each party – Property damaged in riots – No correlation with political involvement – No real risk of harm – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K-LA, 36, 48A, 65, 91R, 91S, 438, 499
Migration Amendment (Complementary Protection) Act (Cth) 2011
Migration Regulations 1994 (Cth), Schedule 2

CASES
SZGIZ v MIAC (2013) 212 FCR 235

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

statement of decision and reasons

application for review

1. The applicant is a man [age], born in India and a citizen of India.

2. The issue in this case is whether the applicant is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

3. The applicant arrived in Australia on 19 June 2006, as a holder of a [temporary] visa, and had travelled on an Indian passport issued on [date] 2005 and valid to [date] 2015. His wife [accompanied] him.

4. On 29 June 2006 the applicant applied for a Protection (Class XA) visa. The wife was included as a member of the same family unit.

5. On 15 July 2006 the delegate refused the application.

6. On 28 December 2006 the Refugee Review Tribunal (RRT) affirmed the decision not to grant the applicants Protection visas. The applicants sought judicial review of the RRT’s decision from the Federal Court, the Full Federal Court, and the High Court, and each Court dismissed his application.

7. The applicants had a child born in Australia on [date]. On 15 April 2009 the child applied for a Protection (Class XA) visa. On 25 June 2009 the delegate refused the child’s application, and on 13 October 2009 the RRT affirmed the decision not to grant the child a Protection visa. On 25 May 2010 a citizenship application was lodged for the child, refused on 9 June 2010, and an appeal to the AAT was later withdrawn.

8. A number of requests for Ministerial intervention have been unsuccessful.

9. On 20 July 2010 the wife and child departed Australia.

10. From 24 March 2012 a new alternate criteria for the grant of Protection visas was introduced by the Migration Amendment (Complementary Protection) Act 2011, so that a person may meet the criteria for a Protection visa where there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that she or he will suffer significant harm.

11. On 21 August 2013 the applicant again applied for a Protection (Class XA) visa. This fresh application was accepted as valid by a delegate of the Minister.

12. On 25 September 2015 the delegate refused the application.

13. On 27 October 2015 the applicant applied for review of the delegate’s decision.

14. Section 48A imposes a bar on a non-citizen making a further application for a Protection visa while in the migration zone in circumstances where the non-citizen has made an application for a Protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a Protection visa which duplicates an earlier unsuccessful application for a Protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. Applying the reasoning in SZGIZ v MIAC (2013) 212 FCR 235, the Tribunal finds that it does not have power to consider the Refugee Convention criterion in s.36(2)(a), and has proceeded on the basis that it can only consider the applicant’s claims under the complementary protection criterion contained in s.36(2)(aa). The Tribunal must also assess the applicant’s claims against 36(2)(b) and 36(2)(c) of the Act, which make provision for non-citizens who are members of the same family unit of a person to whom Australia has protection obligations.

15. On 10 March 2017 the applicant attended a Tribunal hearing.

    CONSIDERATION OF Claims and evidence, FINDINGS

    Background

16. The applicant’s protection visa application provided some basic background information, and the applicant supplemented this with further details at the hearing.

17. In the application, the applicant indicated he was born and raised in [Ahmedabad], in Gujarat state, India. He indicated the same residential address in Ahmedabad from birth to June 2006 when he departed India. He is a Hindu. He indicated he had been [an occupation] in India, and [worked in a different industry] in Australia.

18. He showed that his wife, [children], parents and [brothers] reside in India.

    Summary of claims

19. The applicant claims that in India:

    ·    He was a member and supporter of Shiv Sena, a group who work for the betterment of Hindus in India.

    ·    He and his family also supported the Bharatiya Janata Party (BJP) and a local BJP leader [Mr A].

    ·    Due to his support of Shiv Sena and the BJP, he faces harm from the Congress Party and Islamic fundamentalists.

    ·    He will be unable to seek state protection as the police are corrupt and ineffective.

    ·    His friend was killed in riots in Ahmedabad in 2002.

    ·    His business was burned in an arson attack between 2002 and 2005.

    ·    His wife has received phone calls asking about him.

    Evidence

20. The evidence before the Tribunal includes the following material:

    • The applicant’s Protection visa application form lodged on 21 August 2013, which includes concise reasons for seeking protection in Australia.
    • Passport pages.
    • Country information, photos and documents concerning his business ‘[Business name deleted]’ in Ahmedabad, provided by the applicant.
    • The Protection visa decision record (‘delegate’s decision’) dated 25 September 2015, which is the subject of this review.
    • The application for review.

21. The applicant appeared before the Tribunal to give evidence and present arguments, on 10 March 2017. The hearing was conducted with the assistance of an accredited interpreter in the Gujarati and English languages, on the telephone. The applicant stated he understood the interpreter, and during the hearing he did not tell me he had any difficulties with the interpretation. The applicant’s representative was also present on the telephone.

22. At the start of the hearing I asked whether he was well and able to talk about his story, and he stated he was. During the hearing he appeared to fully understand questions and he gave coherent answers and explanations. At the end of the hearing he indicated he had understood everything said. I assess that he was competent to give evidence and had a full opportunity to put forward his story and arguments.

23. The Department had not issued a certificate under s438 of the Act.

    Assessment of claims: credibility

24. The applicant claims to be a national of India. I sighted his India passport at the hearing and partial photocopies were made. The passport was issued in [Australia] on [date] 2015 and it expires on [date] 2025. All the available evidence, including the applicant’s oral evidence and familiarity with India, supports his claim to be an Indian national. India is therefore the receiving country when assessing his claims against the complementary protection grounds.

25. The applicant states he lived in Ahmedabad in Gujarat state from birth to June 2006 when he departed India. His expired Indian passport shows it had been issued in Ahmedabad. All the available evidence supports his claim to have lived in Ahmedabad until he departed India. He also says, and I accept, that he is a Hindu.

    BJP supporter

26. The applicant’s narrative is centred on his past support of the BJP in Ahmedabad in Gujarat state, and his related fear of the Congress party and Islamic activists. Country information[1] shows Gujarat is a highly industrialised state of more than 60 million, and Ahmedabad has a population of more than six million. As I discussed with the applicant at the hearing, country information[2] shows the BJP dominated Gujarat and Ahmedabad at the time he lived there and the BJP has won every state election since, and indeed now forms the national government. The BJP has had a vast support base in Ahmedabad for a long time and so it is not unusual for a Hindu from Ahmedabad to identify as a BJP supporter. Accordingly, I accept the applicant was involved with the BJP in his home city for a number of years until he departed.

    Shiv Sena supporter

    [1] Indiaonlinepages report [ Wikipedia (note: used with caution)[ >

    He also claims that in Ahmedabad he supported Shiv Sena- a Hindu nationalist political organisation. He says that he had a Shiv Sena identity card with his photo and personal details. As I discussed with the applicant at the hearing, country information[3] shows that Hindus account for 88% of the state population. Reports also show that Shiv Sena undertakes activities in Gujarat. Accordingly, I cannot discount the possibility that the applicant was involved with Shiv Sena in his home city for a number of years until he departed.

    His activities with the BJP and Shiv Sena

    [3] Census 2011 [>

    At the hearing the applicant said he worked for the BJP and Shiv Sena but also said he did not hold a position in either party. When I asked what activities and tasks he undertook, he merely described trying to get people to vote for the BJP including by having meetings and giving speeches often on the road just below a BJP office. He added that although Congress members became annoyed with them, there was never violence at these meetings.

27. When I pointed out that in his application he referred to supporting a local BJP leader [Mr A] but my internet search had not found any reference to such a leader in that period, he said he is unsure if [Mr A] is a first or last name. The applicant said he just did some work for [Mr A] and did not know what position/designation [Mr A] held, and he added that anyway he had mainly worked for Shiv Sena. The applicant’s evidence showed he had scant knowledge of the local BJP officer he did work for, and his explanation that his focus had been on working for Shiv Sena, leads me to consider he had minor political connections in the BJP.

28. When talking of his activities with Shiv Sena, he described how Shiv Sena had groups of 20-25 people around the city in Hindu majority areas, he had been a member in one such local group, and they helped Hindus.

29. In sum, the applicant’s evidence showed he did not hold a position in either party/organisation, he had minor political connections in each party, and he just did low level tasks. Nor does his evidence show he had been confrontational in his activities with, and support of, Shiv Sena and the BJP. I conclude he had a low level involvement in BJP/Shiv Sena activities in his local area and correspondingly his political profile and/or social profile had been low.

    His claims of harm in India

30. In the applicant’s narrative at the time of the 2002 riots in Ahmedabad he saw a friend shot and killed. Reports show there were deaths during the riots and so I cannot discount the possibility that the applicant witnessed a friend’s death as he claims. However, although he spoke of the big conflict in 2002, the applicant does not claim despite ample opportunity that he or his family had been singled out by any agents or actually harmed at that time.

31. In his narrative his shop was burned, and on occasion he feared to stay at home and his family stayed elsewhere. However, he gave unconvincing evidence about when the arson occurred, who was responsible, and about his later actions. Although I acknowledge he says he now has memory problems, the arson is a significant element in his narrative, and so his uncertain account that the arson occurred a little later than the 2002 riots and perhaps in 2005, raises concerns. When I asked whether he knew the identity of the arsonist, he gave changeable evidence that he does not know exactly, but then that he is sure it was a particular Congress party person who was revengeful. When I asked whether he reported the arson to the police, he said he did not, and gave changeable reasons for the lack of a report. He first said he failed to report the fire because the police ask for money, but when I indicated it is unlikely that he failed to seek police help, he then said there was a lane next to the house where there were Muslims and so he feared revenge from these Muslims if he reported the fire.

32. However, as I pointed out, he had been resident in a city and a state that was overwhelmingly Hindu and dominated by the BJP, in his narrative he had some party connections with the BJP, and he says an opposition Congress party person may have been the arsonist. In such circumstances, it is difficult to accept he failed to report the arson because of a fear of some local Muslims or because he thought the police might ask for money. In light of my concerns I do not accept that the applicant’s business had been burned by an arsonist.

    Complementary protection

33. The applicant’s receiving country is India, and I consider that he would return to Ahmedabad where his wife and children and other relatives reside. In my findings above, I accept that for some years before he departed India in 2006, he supported the BJP and the Shiv Sena organisation. However, I find that he did not hold a position in either party, he had minor political connections in each party, and he just did low level tasks. I conclude he had a low level involvement in BJP/Shiv Sena activities in his local area and correspondingly his political and social profile had been low. I also find that he had not been confrontational in his activities with, and support of, Shiv Sena and the BJP.

34. I acknowledge that he experienced the 2002 riots in Ahmedabad. However, as I pointed out, country information shows there were state wide riots in 2002 sparked by a train fire that killed Hindu pilgrims. The violence was overwhelming against Muslims, and while some Hindus were killed, the community most in fear was the Muslim community. While he says he saw a friend die in the riots, I do not accept that the applicant was targeted or harmed during or in the aftermath of the 2002 riots, by the Congress party, Muslims or any agents. Nor do I accept that his shop was burned by an arsonist because of his political or social profile, and I do not accept that he had to stay away from his home at times because of such adverse attention.

35. In light of these findings I find unconvincing his claims that he came to the serious and ongoing adverse attention of the Congress party, Muslims or their agents. I do not accept that he departed India so as to escape feared harm (such as threats, intimidation, physical or other harm) from those agents, or that he now fears to return to India for the reasons he has given. In light of the foregoing I do not accept that the applicant is now of adverse interest to the Congress party, Muslims or their agents. Further, I find that those of his past circumstances and activities that I do accept are now distant in time and will not cause him any difficulties on his return to India.

36. I accept the applicant may resume his support of the BJP and Shiv Sena on his return to India. But in light of his low level political and social involvement before he departed, I am not satisfied that on his return to India he will be motivated to become any more politically involved than he had been before he left. I acknowledge country information shows there can be political and religious violence in India. However, as I discussed at the hearing, Ahmedabad and Gujarat state have been for a very long time and still are Hindu and BJP dominated. Should the applicant resume his political and social involvement in his home area, I do not accept that there is a real risk of significant harm from the Congress party, Muslims, Islamic fundamentalists, their agents or any other agent.

37. The applicant departed India on his genuine India passport. He renewed his Indian passport in Australia and that passport is now valid to [date] 2025. He is an India national and he will reasonably be able to return to India without difficulties. In light of my findings above, while the applicant has stayed and worked in Australia and sought protection, I do not accept these actions will cause him to face harm on his return to India.

38. I considered whether on the evidence before me, 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. However, in light of the foregoing I find there is no real risk that he will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. Nor am I satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. I am not satisfied the applicant will be subject to significant harm for any reason if he is removed/returns to India.

    Conclusion

39. Having concluded that the Tribunal has no power to consider the applicant’s claims against 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).

40. 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

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

    C. Packer
    Member

    
    
    

    ATTACHMENT A – RELEVANT LAW

    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

    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).

    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.

    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.

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

    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.

    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.

    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.

    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.

    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. [Right click to insert additional paragraphs from ‘Optional standard paragraphs - Refugee and CP’ on aspects of the refugee definition and third country protection.]

    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

    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’).

    ‘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.

    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.

    Mandatory considerations

    In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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.