1600549 (Refugee)

[2017] AATA 2013

1600549 (Refugee) [2017] AATA 2013 (10 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1600549

COUNTRY OF REFERENCE:                  India

MEMBER:C. Packer

DATE:10 July 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 10 July 2017 at 2:04pm

CATCHWORDS

Refugee – Protection Visa – India – Fear of persecution – Applicant did not appear – Lack of detail in application

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 426A, 499

Migration Regulations 1994, 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. The applicant is a man aged [age], born in India and a citizen of India.

2. The applicant arrived in Australia on [in] November 2008, as a holder of a [temporary] visa (dependant), and had travelled on an Indian passport issued [in] 2008 and valid to [2018].

3. [In] March 2011 he applied for [another temporary visa] but this was refused [in] May 2012. On 4 April 2014 the Migration Review Tribunal affirmed the refusal. A judicial review was lodged [in] April 2014 but withdrawn [in] December 2014.

4. [In] March 2015 the applicant applied for a Protection (Class XA) visa.

5. The applicant did not attend an interview with a delegate of the Minister for Immigration.

6. [In] December 2015 the delegate refused the application under s.65 of the Migration Act.

7. On 18 January 2016 the applicant applied for review of the delegate’s decision.

8. The applicant did not attend his scheduled Tribunal hearing on 5 July 2017.

9. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether the applicant is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS

Background

1. The applicant’s protection visa application provided some basic background information. He indicated he is a Sikh man from Amritsar, Punjab state in India. He indicated he had married in 2008 and separated in 2010 in [city] but gave no further details. The application did not include his wife or anyone-else. He indicated he has parents and [other relatives] in India and he is in regular contact with them. He completed schooling to Year 12 in [year] in India and showed no further education either in India or Australia. The only employment he showed since birth was as a driver in Australia from 2012 to 2013.

Summary of claims

1. The applicant claims:

   ·    In 2008 he was attacked on the way home by unidentified assailants. He decided to leave India and got married and came to Australia as the dependant of a [temporary] visa holder. He fears being harmed again in this way.

   ·    He separated from his wife [Ms A] as she was very abusive. The wife’s family in India blame him for the marriage breakdown and trouble his family and threaten him. He fears the in-laws ‘might mistreat me’ on return. He seeks to support this claim with the father’s statement that claims [Ms A]’s family continuously threaten the applicant, including their threat that with the help of high profile people they will falsely implicate him in a crime. The father additionally claims the applicant had divorced in Australia and married another Indian woman.

   ·    He could not live elsewhere in India because he is unemployed and is dependent on his parents.

Evidence

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

• The applicant’s Protection visa application form lodged [in] March 2015, which includes handwritten reasons for seeking protection in Australia.

• A brief statement dated [in] June 2015.

• A statement by the father in India, undated but ostensibly provided in June 2015.

• Passport pages.

• The Protection visa decision record (‘delegate’s decision’) dated [in] December 2015, which is the subject of this review.

• The application for review, which has attached to it a copy of the delegate’s decision.

1. On 12 April 2017 the Tribunal wrote to the applicant advising that his file was now being prepared for allocation to a tribunal member. The letter further advised that as this may result in a hearing being scheduled he should send any additional evidence as soon as possible and advise if there were any reasons why he may not be able to attend a hearing at any time in the coming months.

2. On 25 May 2017 the Tribunal sent the applicant a hearing invitation letter. The letter was sent by email, to the address for correspondence indicated in the review application, which was the representative’s address.

3. The hearing invitation letter advised that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited him to give oral evidence and present arguments at a hearing to be held on 15 June 2017 at 2pm. The invitation advised that if he did not attend the scheduled hearing and an adjournment was not granted, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before it or may dismiss the application for review without any further consideration of the application or the information before it.

4. The hearing invitation letter also advised that:

   If you are not able to attend the hearing you should advise us as soon as possible. Any request to postpone a hearing must be made in writing as early as possible, including the reasons for making the request. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.

5. Attached to the hearing invitation letter was a four page ‘Information about hearings’ sheet that included the advice:

   What if I cannot attend the scheduled hearing?
   If you are not able to attend the scheduled hearing, you need to advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.
   If you seek to adjourn your hearing for a medical reason, you must provide a doctor’s certificate that states you are not able to attend the scheduled hearing. If you cannot provide a medical certificate you must provide convincing reason for this. The Member will consider the request and advise you of the outcome. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.

6. On 15 June 2017 at 9.21am the Tribunal received a request for adjournment and two medical certificates concerning the applicant. The oldest stated he was suffering from a ‘medical condition’ and was ‘unfit to continue his usual occupation’ from 3 to 4 June 2017. The most recent completed on 13 June 2017 stated he ‘is suffering from sore throat and hoarseness and will be unfit to continue his usual occupation/school’ from 14 to 15 June 2017.

7. I noted the relevant medical certificate had been prepared on 13 June but only provided two days later on the morning of the hearing. Although stating he was unfit for work/school up to 15 June, I did not consider the medical condition of sore throat/hoarseness showed he was not able to attend the scheduled hearing. At that time I did not, therefore, accept the request for adjournment. On 15 June 2017 at 10.26am the Tribunal advised the applicant:

   I am writing to advise that hearing will proceed. A medical condition of hoarseness on 13 June 2017 does not show he is unfit to attend a hearing of about 2 hours on 15 June.

8. However, the applicant did not appear before the Tribunal on the day and at the time and place he was scheduled to appear. He did not further contact the Tribunal to provide any additional information or other reasons why he could not attend at the scheduled time or seek a further postponement. Despite these circumstances, on 22 June 2017 I decided to accept the request for adjournment.

9. On 22 June 2017 the Tribunal sent the applicant a second hearing invitation letter. The letter was sent by email, to the address for correspondence indicated in the review application, which was the representative’s address. The hearing invitation letter advised that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited him to give oral evidence and present arguments at a hearing to be held on 29 June 2017. The invitation contained the same advice and attached the same Information sheet as in the first hearing invitation letter.

10. On 29 June 2017 the Tribunal received a medical certificate completed on 28 June concerning the applicant. This stated he was suffering from [medical condition] and was ‘unfit to continue his usual occupation/School on 29/06/2017 to inclusive’. Although an actual request for adjournment was not articulated in the representative’s covering email, I granted an adjournment.

11. On 29 June 2017 the Tribunal sent the applicant a third hearing invitation letter. The letter was sent by email, to the address for correspondence indicated in the review application, which was the representative’s address. The hearing invitation letter advised that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited him to give oral evidence and present arguments at a hearing to be held on 5 July 2017 at 11.30am. The invitation contained the same advice and attached the same Information sheet as in the previous hearing invitation letters.

12. On 4 July 2017 at 5.04pm the Tribunal received a request for an ‘extension’ and a medical certificate completed on 3 July concerning the applicant. This stated he was suffering from ‘a medical condition, [details of illness]’ and was ‘advised to take a rest for a month until the next examination’.

13. I noted the relevant medical certificate had been completed on 3 July but only provided after hours on 4 July. All of the four certificates provided by the applicant over time had come from the same medical centre in [location] although each certificate had been completed by a different doctor. In the latest certificate the concise [diagnosis] by itself did not show that the applicant was unable to attend a hearing to give oral evidence and present arguments. Unlike the earlier certificates the latest certificate did not give the doctor’s opinion that the applicant was ‘unfit to continue his usual occupation/School’ for specific dates. The advice that was given- to ‘take rest’ until the next examination- was vague and open-ended. As well, the applicant had previously been alerted to the need for the medical certificate to establish he was unfit to attend a hearing of about 2 hours. In sum, I did not consider that the medical certificate showed the applicant was not able to attend the scheduled hearing. I did not, therefore, accept the request for adjournment.

14. On 5 July 2017 at 10.57am the Tribunal advised the applicant:

    I am writing to advise you that the hearing will proceed. The new diagnosis of a [medical condition] does not show that you are unfit to attend a Tribunal hearing of about 2 hours on 5 July.

15. I recognised that the Tribunal’s advice would not provide the applicant sufficient time to travel from his address to the place of the Tribunal hearing by 11.30am, but I considered this advice provided him with time to provide additional information or comments before the scheduled hearing and/or to request a later start to which I would have given consideration. Regardless, both the hearing invitation letter and Information about hearings sheet clearly set out that “If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.”

16. However, the applicant did not appear before the Tribunal on the day and at the time and place he was scheduled to appear. He did not further contact the Tribunal to provide any additional information or other reasons why he could not attend at the scheduled time or seek a further postponement. His representative did not further contact the Tribunal to provide any additional information or other reasons why the applicant could not attend at the scheduled time or seek a further postponement. In these circumstances, and pursuant to s.426A of the Act, I decided to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.

Assessment of claims: credibility

1. The applicant claims to be a national of India. He claims to speak Punjabi and he provided a copy of his Indian passport. I am satisfied on the limited evidence that the applicant is an Indian national. India is therefore the country of reference for the purpose of assessing the applicant’s protection claims, and the receiving country when assessing his claims against the complementary protection grounds.

2. I have before me only the brief points recorded in the protection visa application form that appears to have been completed in a perfunctory manner, a written statement dated [in] June 2015 lacking in detail, and the father’s statement ostensibly provided in June 2015. The applicant did not attend an interview with the Department. The information is dated, some is contradictory and much of the information is lacking in detail in significant respects. The applicant’s appearance at a hearing would have been an opportunity to address the various gaps and contradictions, and to provide further information and details.

3. I have insufficient information about his personal details and claims including about:

   ·His background, work history, family circumstances and living arrangements, insofar as these may be relevant to an assessment of whether he needs protection.

   ·His claim that he is separated from his wife, that is different to the father’s claim that the applicant had divorced and married again.

   ·The circumstances in India that led him to depart India. He has given no details about the claimed attacked by unidentified assailants in 2008.

   ·The applicant’s fears if he returns to India in the future. He has given no details about his marriage breakdown, and the wife’s family in India; or how the wife’s family have made threats, what they have threatened, and the extent of their influence with ‘influential’ and ‘high profile’ people in India. I would have sought more information about the availability of police protection in his home area.

   ·Why he would be unable to live elsewhere in India.

4. Based on the limited available material, I am unable to be satisfied that in 2008 he was attacked on the way home by unidentified assailants or that this occurrence nine years ago- now distant in time- would lead him to face harm in the reasonably foreseeable future. Based on the limited and contradictory available material I am unable to be satisfied about the applicant’s marriage breakdown and/or later marriage, and about the claimed threats by [Ms A]’s family in India. The applicant has given no details about [Ms A]’s family- who they are and where located and what political/social profile they have- and I am unable to be satisfied that [Ms A]’s family have made the continuous threats claimed, or whether that family is able to act on threats in a way that would actually adversely affect the applicant. The father’s letter provided to support the applicant’s claims does not resolve my lack of satisfaction with the applicant’s narrative and evidence. As well, I am unable to be satisfied that the applicant is not able to live elsewhere in India where he would not face harm and the problems he claims.

5. In sum, I am unable to be satisfied that in India the applicant, a mature Sikh man from Amritsar in Punjab state has suffered harm (such as threats, intimidation, physical or other harm) that amount, individually or cumulatively, to serious harm for the reasons set out in s.5J(1). I am unable to be satisfied that the applicant departed India so as to escape feared harm (such as threats, intimidation, physical or other harm) from any person or group in the community or the authorities. I am unable to be satisfied that he now fears to return to India for the reasons he has given. I am unable to be satisfied that the applicant genuinely fears in India now and in the reasonably foreseeable future serious harm amounting to persecution arising from any of his circumstances or the circumstances he has claimed or for any reason.

Refugee criterion

1. In light of the above assessment and my lack of satisfaction about the applicant’s circumstances I am not satisfied that he faces a real chance of serious harm amounting to persecution, for any reason, from any sources, if he returns to India. I am therefore not satisfied that he has a well-founded fear of persecution for one or more of the five reasons set out in s.5J(1) of the Act either when looked at individually or cumulatively. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

Complementary protection

1. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I considered the alternative criterion in s.36(2)(aa). However, based on the information before the Tribunal and in light of the above assessment and my lack of satisfaction about the applicant’s circumstances, I am 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 would be a real risk that he will suffer significant harm. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

Conclusion

1. 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).

2. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa). However, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

3. 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

1. 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, 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.

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 because the person is a refugee. 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).

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.

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.