1516028 (Refugee)

[2016] AATA 3868

1516028 (Refugee) [2016] AATA 3868 (17 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1516028

COUNTRY OF REFERENCE:                  India

MEMBER:Amanda Paxton

DATE:17 May 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 17 May 2016 at 7:55am

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 13 May 2016. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice.

4. On 9 May 2016, the applicant emailed the Tribunal stating that:

   “I had a hearing on 13 of May regarding my case I need needed extended time for it (the hearing) cox Im not doing well about my health issues could u pls help me out to extend the dates.” [1]

   [1] AAT, f. 22

5. The Tribunal attempted to contact the applicant a number of times on his mobile phone to request evidence of the applicant’s medical condition, but this was not successful.  On 10 May 2016, the Tribunal emailed the applicant advising that,

   “I’ve attempted to contact you on a number of occasions but haven’t been successful. You have requested postponement on the grounds that you’re not doing well health wise. You have provided no evidence in support of this request. The Member will consider postponement only if you provide a medical certificate which indicates the nature of your health concerns and sets out clearly that you’re not fit to attend a Tribunal hearing. If you have any further questions please contact me on the number provided below. [2]

   [2] AAT, f. 23

6. At 10:12 on 12 May 2016 the applicant emailed with the advice that he will deposit a [medical certificate] from his doctor “today evening”.  To date, the Tribunal has not received a medical certificate in relation to the applicant’s health on 13 May 2016 and that indicates the applicant was not fit to attend a hearing.

7. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. To date, the applicant has not contacted the Tribunal in order to provide a reason for non-attendance. The Tribunal has considered the applicant’s emailed statement of 9 May 2016 that he is not doing well in his health, but considers this is a vague statement and not a reasonable explanation for his failure to appear. In considering the applicant’s request to postpose the hearing, the Tribunal has taken into account that the applicant was advised by email that the Tribunal would require evidence of his health status in order to consider whether it was reasonable to postpone the hearing. The Tribunal notes that the applicant indicated he received this information when he emailed to inform that he intended to provide a medical certificate from his doctor. The Tribunal also notes that the applicant has not provided a medical certificate or any other explanation for his failure to attend the hearing. On the information before it, the Tribunal does not consider the applicant has provided an explanation or evidence of his situation, such that it would be reasonable to postpone the hearing.

8. The Tribunal also notes that the applicant did not respond to the Department’s letter inviting him to contact the delegate to arrange an interview. In view of the applicant’s lack of follow up of his case at the primary stage, and the failure of the applicant to attend the hearing and to provide satisfactory reasons and evidence for this failure, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   CRITERIA FOR A PROTECTION VISA

9. 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.

10. 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.

11. 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).

12. 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.  

13. 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

14. 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

15. The applicant made the following claims for protection with his application from Questions 89 – 97 of the Form 866C on the Department of Immigration and Border Protection (department) file [deleted].[3]

    ·     The applicant left India because his life was in danger and came to Australia on a student dependent visa.

    ·     If he returns to India, people of opposition party/religion can kill him or harm him seriously. He thinks he will be harmed or mistreated if he returns to India because he believes they can harm him physically and/or mentally torture him.

    ·     He has not experienced harm in India.

    ·     The applicant does not think the authorities of India can will protect him if he returns because the authorities (police and judicial) are corrupt in India and favour the people with money and/or connections to abuse the system.

    ·     He has not moved, or tried to move to another part of India because it is not safe to do so because of language problems, cultural differences and racist elements and it is hard to survive. The applicant does not think he would be able to relocate within India because of language barriers and social/economical political problem and because it not very safe to survive.

    Findings and reasons

    [3] DIBP, ff. 19 - 21

    Country of nationality

16. The applicant claims to be a citizen of India. On the basis of the copy of the applicant’s passport provided to the Department, 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).

    Assessment of claims

17. 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.) The applicants’ claims are very vague and lacking in 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 applicant’s failure to attend the hearing when requested to do so however meant the Tribunal has not been able explore his claims with him or have the ability to seek further information about the basis on which he has sought protection.

19. The applicant claims he left India because his life was in danger. Had the applicant attended the hearing, the Tribunal would have requested details about the reasons he states his life was in danger, about his own political opinions and religion (noting that the applicant indicates that he identifies as Sikh) and from whom he fears harm and why. The Tribunal would have noted that the applicant states he has not experienced harm in India in the past and explored would have enquired why, after more than nine years in Australia, the applicant fears harm on return. The applicant has provided no detail about his claims, and his claims are so limited as to raise serious credibility concerns.  In addition to their vague nature, the applicant has not taken the opportunity to elaborate his claims at a hearing. The Tribunal considers this strongly indicates that there is no basis in fact for the applicant’s claimed fears.

20. The applicant further claimed that he would not be safe if he moved to another part of India and that he would experience language problems, cultural differences and racism, and that it would be hard to survive. His claims in this respect are very vague and limited. Had the applicant attended the hearing, the Tribunal would have explored these claims, noting that the applicant indicates in his Form 866C that he speak, read and write Punjabi, Hindi and English, and that his parents and [sibling] reside in India (folio 35) and could offer him support in the event this was ever needed. The applicant has provided no detail about his claims, and his claims are so limited as to raise serious credibility concerns.  In addition to their vague nature, the applicant has not taken the opportunity to elaborate his claims at a hearing. The Tribunal considers this strongly indicates that there is no basis for the applicant’s claimed fears.

21. The Tribunal would also have asked the applicant to explain the delay in lodging his protection visa application, noting that the applicant arrived in Australia [in] November 2007 but did not apply for protection until [January 2015]. This is a significant delay, and the Tribunal is very concerned by it. 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. He has not attended to explain this delay.

22. The applicant claims he will not be protected by police because the authorities (police and judicial) are corrupt in India and favour the people with money and/or connections to abuse the system. The applicant has provided no detail about this claim. Had the applicant attended the hearing, the Tribunal would have asked for more detail about this claim, and why he believes the police will not protect him in the event that this was required for any reason. In considering this claim, the Tribunal has also taken into account advice of the United Kingdom Home Office from February 2015, that, in general, a person is likely to be able to access effective protection from the state.[4]  On this basis, and noting the very vague and limited claim of the applicant, the Tribunal does not accept that the police would not protect the applicant if this was required for any reason because they are corrupt and favour people with money and connections.

    [4] UK Home Office, Country Information and Guidance, India: Background information, including actors of protection, and internal relocation, February 2015

23. Based on the very vague and limited evidence before it, the Tribunal does not accept that the applicant’s life is in danger for any reason on return to India. For the same reason, the Tribunal does not accept that the applicant faces real chance of serious harm or a real risk of significant harm from people of opposition party/religion or anyone else on return to India. The Tribunal does not accept that the applicant could not obtain protection from the authorities, if for any reason this was required.  On the evidence before it, the Tribunal does not accept there to be a real chance that the applicant faces serious harm for any reason if he returns to India.

24. The Tribunal finds that the applicant does not have a real chance that, if returned to India, he would be persecuted for one or more of the reasons mentioned in paragraph 5J(1)(a). The Tribunal finds that the applicant does not have a well-founded fear of persecution for these reasons.

25. The Tribunal also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa). The Tribunal has considered whether it 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 the applicant will suffer significant harm.

26. For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant faces serious harm from the family of a boy with whom he had a if he returns to his home in India. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear' in the refugee definition. It follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that the applicant will suffer significant harm.

    CONCLUSION

27. 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 s.36(2)(a).

28. 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).

29. 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

30. 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.

    …