1514961 (Refugee)

[2019] AATA 4077

1514961 (Refugee) [2019] AATA 4077 (9 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1514961

COUNTRY OF REFERENCE:                  India

MEMBER:Ms Christine Long

DATE:9 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 09 January 2019 at 5:04pm

CATCHWORDS

REFUGEE – protection visa – India – fear of harm from terrorist – harmed and threatened – telephone threats – terrorist want him to join them – army unable to protect – delay in making application – returnee – false passport – did not attend interview – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65, 499
Migration Regulations 1994 (Cth), 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 who is a citizen of India applied for the visa on 2 December 2014; the application forms on the departmental file are stamped as received on that date. The delegate refused to grant the visa on 9 October 2015.

3. The applicant appeared before the Tribunal on 27 July 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi 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.

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. 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’).

8. 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.

   CLAIMS AND EVIDENCE

9. The Tribunal has before it the applicant’s departmental file which includes his application for protection visa and the delegate’s decision record. The Tribunal also has before it the applicant’s application for review which attaches a copy of the delegate’s decision record.

   Claims in Application for Protection Visa

10. In his application for visa the applicant states that he was born in [Village 1] in India in [date] and that he belongs to the ethnic group Jatt Sardar. His religion is Hindu. He indicates that he has never married. He indicates that he left his country legally [in] November 2013 and arrived in Australia as a visitor [in] November 2013. He gives his current passport details; the passport was issued in Jammu in [2010] and expires in 2020. He states that he entered Australia on another passport in another name which he gives and he states that he no longer has that passport and he is not aware of the details of that passport.

11. The applicant states that he has lived in Jammu in India from [year] until 2011 and he then lived in Calcutta from 2011 until November 2013. He indicates that he was educated to high school level in [a village] between [year range]. He states that his occupation before coming to Australia was as [Occupation 1] where he worked between 2011 and November 2013 in [a city].

12. The applicant indicates that his father lives in [Country 1], his mother is living in India, he has a [brother] born in [year] living in India and a sister born in [year] living in India. The applicant states that he is in contact with his mother in India by telephone and also with his father who is in [Country 1].

13. The applicant states that he left his country in 2013 because he lives in a border area where there is a terrorist problem. They have threatened “us” to join them or they will kill “us”. Most of the young people leave the village. Army cars come to protect the people in the village but when the Army leaves the people are threatened. The applicant states that the terrorists came and hit him and forcibly tried to take him but the village people gathered and they left him. This happened many times and he left the village and went to Calcutta. He was also threatened by phone in Calcutta and told he would be killed if he returned to his village.

14. The applicant states that he fears he will be killed by the terrorists and forcibly made to join them if he returns to India and if he joins them the Indian Army will kill him. He does not want to join the terrorists. He fears harm from the terrorists who roam all over Kashmir and Jammu; this fight has been going on since 1947.The area is a bitter place of battle and he is poor; terrorists attack the villages. Young people leave the village or the country. He states that he belongs to a place that is not safe. He states that when the Army is there the village is safe but the Army keeps moving and are confined to their posts or barracks. Terrorists are moving freely around the state, taking money, looting and killing people. Many of his friends have been killed. The applicant claims that he cannot get protection from the harm he fears.

    Interview with delegate

15. The applicant did not attend the interview with the delegate scheduled for 8 October 2015. He told the Tribunal that it was his fault that he did not attend that interview; he did not recognise the name on the letter sent to him at his address inviting him to the interview as it was the name on the false passport with which he entered Australia and he did not at that time recognise that false name.

    Claims in Application for Review

16. In his application for review the applicant makes no new claims.

    Tribunal Hearing

17. At the Tribunal hearing the applicant produced the following documents- a passport noted as issued in Jammu in India in [2010] valid until 2020 in the applicant’s name, indicating date of birth as [date] and place of birth as [Village 1];  a document described as an Indian Union Driving licence in the applicant’s name; a copy of a document dated [November] 2013 described as a travel itinerary for a person called [name] for travel from Delhi [in] November via [Country 2]  to [Australia] and return to Calcutta via [Country 2] [in] November; a copy of a document headed Government of Jammu and Kashmir, undated, containing what appear to be fingerprints and a certification that a person with the applicant’s name is a resident of a named village; a copy of a document described as a registration card from a Board of School Education in the name of the applicant; a copy of a document described by the applicant as a Jammu ration card for his family naming him as a son.

18. The documents produced to the Tribunal were also produced to the department in support of the application for protection visa. At the Tribunal hearing the applicant also referred to his birth certificate. A copy of a document referring to the date of birth of a person with the name of the applicant is on the applicant’s departmental file together with a document described as from [an official] dated [March] 2010 indicating that a person with the applicant’s name was born in [variation of spelling of Village 1], Jammu in [date].

19. At the Tribunal hearing the Tribunal spoke with the applicant about his identity, his entry into Australia with others, using a passport in another name, his background and his claims.

    FINDINGS AND REASONS

20. Essentially the applicant claims that he left his country and cannot return there as he was, and will be in the future, harmed and threatened by terrorists in his area near the border in Jammu/Kashmir. He claims that the terrorists who roam freely in the area and who loot and kill people threatened that they would kill him if he did not join them. The terrorists hit him and forcibly tried to take him and he was threatened by them by telephone when he moved to Delhi and Calcutta. Before the Tribunal he claimed that he was taken from the family home by the terrorists and also taken to a warehouse and beaten because he would not join the terrorists. He claims he left Delhi and Calcutta because those people he fears learned that he was in both Delhi and Calcutta. The applicant claims that he also left his area in Jammu in 2007/2008 because the terrorists were “after him” but returned there when his mother told him that things had settled down and the terrorists were not enquiring about him. The applicant told the Tribunal that the terrorists asked his mother where he went when he left the area and other family members including his father and brother were also threatened by the terrorists. His mother was slapped by the terrorists when they came to the house and told her they knew the applicant was in Calcutta. The applicant claims that the Army cannot protect him from the harm he fears; although the Army comes to protect the people in the village from the terrorists, the terrorists return when the Army moves on. The applicant told the Tribunal that the Army also searched for people and still asks his mother where he is and if they have any suspicions about anyone they take them away for investigation. The Army would kill him if he joined the terrorists but he does not want to join the terrorists.

    Applicant’s identity and country of reference

21. The Tribunal finds that the applicant entered Australia in November 2013 using a passport that was in a name other than the name which the applicant now claims is his real name; he made his application for protection visa in the name that he now claims is his real name and has produced a passport in that name, issued in Jammu in 2010, and various other documents referring to his identity as referred to above. The applicant told the Tribunal that he came to Australia with a “family” who gave him a passport and ticket at Delhi airport and he was told to “to go with this family”.  He told the Tribunal that when he saw the passport at Delhi airport he saw it was in another name but he “had fear on his mind” at that time and “did not know”. He also told the Tribunal that he left his own passport with his family in India when he left his country and it was later sent to him in Australia with the other documents of identity that he has produced in support of his application for protection visa.

22. For the purpose of this decision, and not without some doubt about the matter, the Tribunal finds that the applicant is who he now claims to be and that he is a citizen of India. The Tribunal finds that the applicant entered Australia using the Indian passport of another person and that he knew he was entering the country under a false name. He agreed with the Tribunal that he knew when he was entering Australia that he was entering on a false passport but he said that he had no choice. He told the Tribunal that he saw the passport when it was given to him at Delhi airport and that it was in “another name” and he told the Tribunal that he left his own passport with his family in India. Clearly the applicant knew that he was travelling on a passport that was in another person’s name when he entered Australia.

23. The Tribunal finds that the country of reference for this application is India.

    Country Information

24. The Tribunal accepts that there is independent country information available which supports in a general way the applicant’s claims about the existence and criminal activities of terrorist groups in his area in India.  For example paragraphs 2.39 and 2.40 of DFAT Country Report, India, October 2018, indicate that many terrorist/extremist groups, including active groups, exist in the area of Jammu/Kashmir and that some militant groups receive support from Pakistan based groups and engage in organised crime in that area. Clearly however the Tribunal must determine whether, for the  purposes of  the ‘refugee’ criterion, the applicant before it has a genuine fear founded upon a real chance of persecution for one or more of the reasons of his race, religion, nationality, membership of a particular social group or political opinion, if he returns to his country, or, for the purposes of  s.36(2)(aa) (‘the complementary protection criterion’), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, in this case India, there is a real risk that the applicant will suffer significant harm.

    Applicant’s family and background in India

25. The Tribunal accepts that apart from a period in 2007/2008 when he left the village, the applicant lived with his family in the family home in a village which he names in Jammu from his childhood until 2011 when he went to stay and work in Delhi, and then went to stay and work in Calcutta, prior to travelling to Australia in 2013. The applicant told the Tribunal that when he left his home in Jammu in 2011 he went to Delhi for two months and found work there [in an occupation] and then he went to Calcutta and worked there as a [Occupation 1] from about March/April 2011 until he came to Australia in November 2013. He said that he got the job in Calcutta through someone he met when he was working in Delhi. The applicant also told the Tribunal that his mother and his married sister with her husband and child remain living in Jammu although his father went to [Country 1] in 2008 and his brother left home; the applicant/his family is not sure where the brother is but the applicant told the Tribunal he thinks his brother is still in India. The applicant told the Tribunal that “they” were “after” his father and his father’s brother who went to [another country] and they (the terrorists) were also “after” his brother to join them.

26. While the Tribunal accepts that there is a chance/risk of harm from terrorists to those living in the region of Jammu/Kashmir the Tribunal finds that this risk is one faced by the population generally in that area. The Tribunal does not accept as true that the applicant left his country and/or cannot return there because he himself or any of his family members or his friends was/were targeted for harm including by terrorists as he claims for the reasons that he claims or because he/they personally faced a risk of harm including from terrorists for the reasons that he claims.

    Applicant’s credibility

27. The Tribunal finds that the applicant has not given credible evidence about what happened to him in India to cause him to leave there and travel to Australia. The Tribunal does not accept as true that terrorists threatened or beat/ill treated the applicant at any time, including in 2007, because he would not join them or that he moved to Delhi and/or Calcutta in 2011 to avoid harm from the terrorists or that they found him in Delhi and/or Calcutta. Further the Tribunal does not accept as true that any of the applicant’s family members, including his mother, father or brother, or his (the applicant’s) friends have been or will be in the future threatened or ill treated by terrorists as the applicant claims for the reasons that he claims.  The Tribunal finds that these claims were invented by the applicant to give him a better chance to get a visa to remain in Australia.

28. The Tribunal does not accept that the applicant left his country and cannot return there for the reasons that he claims. The Tribunal finds that there is not a real chance or real risk that the applicant will suffer serious harm or significant harm from terrorists, or the Army, in his country if he returns there.

29. The Tribunal finds that the applicant has given confused and at times conflicting evidence about what happened in his country to cause him to leave there. In his application for protection visa, in answer to the question “Have you experienced harm in that country? ” the applicant states that terrorists came and hit him and forcibly tried to take him but he resisted and all the village people gathered and then “they left him” and that this happened many times and he ran away to Calcutta but was also threatened there. When the Tribunal asked the applicant at the hearing about what happened to him in India after he returned to his village in 2008 he said that for a couple of years everything was ok and then he was picked up and beaten; he saw marks on his head after that beating. When the Tribunal asked him more about what happened during this incident he said that it occurred in 2010 explaining that he was sleeping with a friend of his and that “they” came at one o’clock/midnight in a van. The Tribunal clarified that he was saying that he was living/sleeping in the family home at that time and he agreed that was the case and said that his mother was there at the time of this incident and also his sister. The applicant also told the Tribunal that there were two “big incidents” that happened to him to cause him to leave his village; one incident was the one that happened in his home when he was sleeping there and the other incident was when “they” took him to a warehouse with others and beat him up. On that occasion he was with three friends and they ran away when those who took them were drunk; one of his friends was shot. When the Tribunal reminded the applicant that the account of his attacks by terrorists in his application for protection visa was different from what he was describing before the Tribunal and queried with the applicant why there was nothing in his application for protection visa about these two incidents which he describes as the “big incidents”, namely the incident where he was taken from the family home when he was sleeping and the incident in the warehouse, the applicant said that he could not figure out what to say and that he did not write the protection visa application. When the Tribunal reminded the applicant that he had earlier told the Tribunal that people in the temple had helped him prepare the protection visa application, that he told them his story and they wrote it down for him and that they had told him in his language, Hindi, what was in the form before he signed it, the applicant said variously that he did not write everything that happened, that he could not think what to write and what to leave out and that he had a terrible time and does not want to remember that period. Given the seriousness of these incidents and given that the applicant himself said that they were major (“big”) incidents for him the Tribunal considers that if they were true the applicant would have included them in his application for protection visa.

1. Further the applicant told the Tribunal that he ran away to Delhi in 2011 but these people (the terrorists) found him there. When the Tribunal expressed doubt that he was found in Delhi given the many people in Delhi the applicant said that these people have groups are in all states. When the Tribunal reminded the applicant that his application for the visa also does not mention that he ran away to Delhi and was found by terrorists there he said that he did not think about that then. The Tribunal does not accept as true that the applicant ran away from terrorists to Delhi as he claims  for the reasons that he claims and that the terrorists found him there as he claims. In the Tribunal’s view if this were true it would have been mentioned in the applicant’s application for protection visa.

2. Further the applicant told the Tribunal that he ran away to Calcutta and worked there but he had to leave Calcutta and then India because his mother told him that the terrorists had found out he was in Calcutta. When the Tribunal asked the applicant how his mother would know this he said that the terrorists came to her at home and slapped her and told her this. When the Tribunal queried why this very important incident involving the mistreatment of his mother was not included in his application for visa the applicant said that he did not think about it at the time. When the Tribunal pointed out to the applicant that in his application for protection visa he gives a different account of the terrorists finding him in Calcutta, namely he states there that the terrorists threatened him by telephone in Calcutta and said they would kill him if he returned to his village, the applicant then said that occurred. When the Tribunal told the applicant that it had great difficulty accepting that he was of such interest to terrorists that they would follow him to Calcutta from his district in Jammu he said that these people are dangerous and they have interest in young people. The Tribunal does not accept as true that the applicant went to Calcutta to escape from terrorists as he claims, or that terrorists found him there and threatened him or that terrorists threatened/mistreated his mother as the applicant claims for the reasons that he claims.

3. The Tribunal also does not accept as true that the applicant left his area in 2007 because terrorists were “after him” to join them and he feared harm from them. The Tribunal does not consider that it is consistent with this claim that that he returned to Jammu in 2008 and stayed there for many years until 2011 when he left there to go to Delhi and Calcutta. Given the seriousness of the applicant’s claims about fearing harm from terrorists in his area the Tribunal does not consider that the applicant gave a reasonable or plausible explanation for why he returned to Jammu in 2008 if he feared harm from the terrorists there in 2007.

4. The Tribunal does not accept as true that the applicant left his country in 2013 and entered Australia using a passport that he knew was in another person’s name because he was afraid of harm in his country and did not understand “what was going on”. When the Tribunal asked the applicant if the false passport he used to enter Australia was used by him because it contained a visa to enter Australia he said that when he saw the passport it did have some papers in it. He later said that the passport contained a one year visa but he had to leave in three months which he did not do. When the Tribunal asked the applicant at the hearing why he got a passport in 2010 (the passport he produced to the Tribunal) he said that the idea was to go abroad and build a future but the situation changed. In the Tribunal’s view the applicant left his country to come to Australia for the very reasons he mentioned in connection with obtaining his passport at an earlier time, namely “to go abroad and build a future”.

   Army

5. To the extent that the applicant claims that he fears harm from the Army if he returns to his country or that the Army is searching for him and/or asking his mother where he is because they have suspicions about him, the Tribunal does not accept that these claims are true. The Tribunal does not accept that the Army has suspicions about the applicant. Although he states in his application for protection visa that that the Army would kill him if he joined the terrorist groups he also states that he did not, and does not want or intend to,  join those groups. As found above the Tribunal  does not accept as true that terrorists threatened or beat/ill treated the applicant in 2010, or at any time, because he would not join them or that he moved to Delhi and/or Calcutta to avoid harm from the terrorists in his area or that they found him in Delhi and/or Calcutta.

   Delay in Making Application for Protection after arrival in Australia

6. The Tribunal finds that if the applicant’s claims about what happened to him in his country and why he left there were true he would have approached immigration authorities in Australia about his situation earlier than he did so. In the applicant’s application for protection visa he states, correctly, that he arrived in Australia in November 2013. His application for protection visa was made in December 2014 and the applicant told the Tribunal that he knew he was without a visa when he applied for the protection visa in December 2014. He said that when he arrived he had to give back his false passport to those who brought him to the country and that he (in his false name) had the one year visa but that visa required him to leave Australia after three months. The delegate’s decision record, a copy of which was provided to the Tribunal by the applicant with his application for review, states that the applicant (also known under the name in the passport with which he entered Australia) became unlawful in Australia from 16 February 2014. The Tribunal raised this history with the applicant and asked why in these circumstances he did not make his application for protection sooner if his claims were true and he feared the harm he claims in his country.  The applicant said that he was not aware there was such a visa until he was advised about this by people he spoke with at the temple after he arrived here. When the Tribunal queried why nevertheless he did not approach immigration authorities to regularise his visa status and tell them about what he had experienced in his country and explain that it was so serious for him that it had been necessary for him to enter Australia on another person’s passport, the applicant said that he was not aware of “anything” and someone guided him. The Tribunal does not accept that this is a reasonable or plausible explanation given the applicant’s visa situation, the seriousness of the applicant’s claims and the length of time it took him to apply for a protection visa.

   CONCLUSION

7. 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). 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). 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

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

   Ms Christine Long
   Member