1515674 (Refugee)

[2016] AATA 3695

1515674 (Refugee) [2016] AATA 3695 (13 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1515674

COUNTRY OF REFERENCE:                  India

MEMBER:Amanda Paxton

DATE:13 April 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 13 April 2016 at 11:04am

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 [in] October 2015 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] January 2015.

3. On 5 April 2016, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. On 12 April 2016, the applicant’s representative advised the Tribunal that the applicant did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

   CRITERIA FOR A PROTECTION VISA

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, he or she 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 because the person is a refugee.

6. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

7. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

8. 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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

9. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. In his statement of 14 January 2015, the applicant stated the following

    ·     My name is[name]. I was born on the[DOB],

    ·     I have been living in this country for more than [years]. I came to Australia on a student visa.

    ·     I have been living in Australia for my own personal reasons, the reason being that I am protecting myself.

    ·     I wish to bring to the attention of the minister matters which may not fall within the ambit of the definition of a refugee but will invoke consideration as to the minister's discretion under s 417 and perhaps for the consideration of the issues of complementary protection.

    ·     The first issue I must raise is why I came to Australia. Very simply my father was in the [military] in Delhi during the time of the anti-Sikh riots of 1984 and this has given the Sikh people a deep disquiet about their future in India.

    ·     We must also note that this has also changed recently since the election of the BJP government and it is well known that the fears of the Sikh population have been expressed through a rapid expansion of the Sikh population in Australia.

    ·     My father wanted me to have a future in the country he saw as safe and secure and he sent me to Australia to study. In Australia I was involved with several colleges and whilst my aim was to gain a qualification which would enable me to convert to permanent residence I had not anticipated that the colleges were only money raising ventures with little commitment to assisting students.

    ·     I must return to my father, who was[in the military] , and had taught me to have high moral standards, as I suddenly confronted in Australia a situation where moral standards were non-existent and I was in a position where I did not know how to proceed forward. Very simply the college said there would be a change of course and to complete my qualification I had to do a lot more subjects and incur further fees of up to $15,000.

    ·     As I had already spent somewhere between $35-45,000 to be blackmailed is not a situation in which one can necessarily know what to do. I must admit that I was disappointed at the lack of support I found in Australia but fortunately I had found a way to make a future in this country and I married [Ms A]. This application has been completed at the MRT and we have separated so there is no hope of reconciliation.

    ·     When I was at the college I was a star student and some of the papers I had prepared were given to other students as examples of the standards to be expected. I had expected that I would be able to continue my life in Australia and my dearest wish was to be able to start my own restaurant.

    ·     There is much more I could write and I will expand on the issues of the colleges later, as there is no doubt I was let down by Australian consumer protection and so my efforts were completely wasted when as a person of high ideals and morals coming from India I expected more and found less. I can only ask the minister to recognise that events moved beyond my control and as is recognised in the guidelines there are matters where the regulations do not provide for real life circumstances and mine is such a situation. I request you to look at the interest of Australia, recognise that most Australian would consider that I have been unfairly treated and it is now time to rectify what has occurred. I can only repeat that my deepest wish is to have a permanent resident visa and start my own small business.

11. In summary, the applicant came to Australia seeking protection because he general fears for his safety as a Sikh in India and because Sikh people in India have concern about their following the 1984 riots and more recently, the election of the BJP government.

12. The applicant came to Australia with the intention of gaining a qualification which would enable him to remain permanently in Australia. He aspired to starting a restaurant. He was a good student, but his college changed its conditions seeking more fees. The applicant feels aggrieved about the behaviour of the college and let down by Australian consumer protection

13. He married an Australian citizen, but the couple separated and his application was refused at the MRT. 

14. The applicant states that he wishes to bring to the attention of the Minister matters which may invoke the consideration of the Minister’s discretion under s.417 of the Act, noting that his situation has been affected by circumstances outside his control, and that he has been unfairly treated.

    Findings and reasons

    Country of nationality

15. The applicant claims to be a citizen of India. On the basis of the copy of the applicant’s passport provided to the Department[1], the Tribunal accepts that the applicant is a citizen of India and that his identity is as he claims it to be. The Tribunal accepts that India is the country of reference for the purposes of assessing the applicant’s claims under ss. 36(2)(a) and (aa).

    [1] DIBP, ff. 26 - 44

    Assessment of claims

16. The Tribunal has considered whether the applicant faces a real chance of serious harm or a real risk of significant harm on return to India now or in the foreseeable future. 

17. In this consideration, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.) In this case, the applicant’s claims are very vague and lack detail. Had he attended a hearing, the Tribunal would have explored his claims with him and sought further information from him on a range of details relevant to his stated claims.

18. The Tribunal has considered that while the applicant identifies as Sikh, he makes no specific claims to fear harm himself in India on this basis. The Tribunal invited the applicant to a hearing as his claims in this respect were vague and limited, however the applicant has declined this opportunity. The Tribunal also notes that the applicant has returned to India on two occasions in 2010. The Tribunal considers that had the applicant concerns that he faced harm as a Sikh in India that he would not have returned on those occassions. Had the applicant attended the hearing, the Tribunal would have sought further details occasions about his claims.

19. The Tribunal also notes that although the applicant claims he came to Australia for his protection, he lodged his application for protection [in] January 2015, eight years after his first arrival.  This is a significant delay, and the Tribunal is very concerned by it. Had the applicant attended a hearing, the Tribunal would have asked the applicant to explain the delay in lodging his protection visa application. The Tribunal considers that had the applicant had a fear of harm of return to India he would have lodged his protection visa far earlier than the eventual date.

20. On the evidence before it, and considering the applicant’s individual circumstances, the Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm because he is a Sikh now or in the foreseeable future.

21. The Tribunal has considered the applicant’s claimed concerns about the general future of Sikhs in India, and notes that they are vague and purely speculative.  In considering this claim, the Tribunal has also taken into account advice from the  Department of Foreign Affairs and Trade of July  2015 that while India’s Sikh community was affected by communal violence in 1984, Sikhs in contemporary India have no heightened risk of official or societal discrimination beyond that experienced by the broader community. The Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm now or in the foreseeable future on this basis.

22. Based on the limited evidence before it, the Tribunal does not accept that the applicant faces a real chance of serious harm for any reason. The Tribunal finds that the applicant’s fear of persecution is not well-founded.

23. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom of Australia has protection obligations under s.36(2)(a).

24. 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).

25. 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).

    Section 417 – Referral to Minister – Applicant request for referral

26. The applicant requested in his statement of 14 January 2015 that the Tribunal refer his case to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

27. In his statement, the applicant presented concerns he came to Australia with the intention of gaining a qualification which would enable him to remain permanently in Australia, and that he aspired to starting a restaurant. The applicant claims he was a good student, but his college changed its conditions seeking more fees which he regarded as blackmail. The applicant is aggrieved about the behaviour of the college and let down by Australian consumer protection.

28. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’ but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    DECISION

29. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Amanda Paxton
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)that is not inconsistent with Article 7 of the Covenant; or

    (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)for the purpose of intimidating or coercing the person or a third person; or

    (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    receiving country,  in relation to a non-citizen, means:

    (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5J Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:    For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:    For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K  Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L  Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA  Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)    the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …