1600862 (Refugee)

[2016] AATA 3792

1600862 (Refugee) [2016] AATA 3792 (27 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1600862

COUNTRY OF REFERENCE:                  India

MEMBER:Amanda Paxton

DATE:27 April 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 27 April 2016 at 8:40am

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] December 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 his 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 6 May 2016. On 26 April 2016, the applicant’s representative wrote to the Tribunal advising that the applicant had instructed that the matter be determined on the papers. In these circumstances, and pursuant to ss.360(2)(b) and 425(2)(b), the Tribunal has decided to proceed to a decision without a hearing.

   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. The applicant’s claims can be summarised as follows. He is from the Punjab region of India, in close proximity to the Pakistani border and he left India on the advice of his parents because he feared for his life. He fears being attacked or killed by terrorists and notes that his ancestors were involved in the separation of Pakistan and India. He provides information about terrorist activity in the Punjab since 1985. The applicant states that he has not experienced harm but he is aware of the terror and violence that occurs on a daily basis and he is psychologically fearful that he will be harmed by this violence. The applicant claims the authorities will not be able to protect him and that the violence continues with many people being killed or injured.

    Country of nationality

11. The applicant claims to be a citizen of India. He has provided a copy of his passport that supports his claim. On the basis of this evidence, the Tribunal finds that he is a national of India and accepts that India is the country of reference for the purposes of assessing the applicant’s claims under ss. 36(2)(a) and (aa) of the Act.

    Assessment of claims

12. 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.)

13. The applicant’s claims are 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. The Tribunal would have sought more detail about the reasons he feared being attacked by terrorists and how the background of his family could have a bearing on his current circumstances.  As the applicant has not attended the hearing, 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.

14. The applicant has made generalised claims regarding being at risk from terrorists. He makes no claim that he will be targeted for harm by terrorists for any reason, nor does he provide any detail about the people he fears. In his protection visa application, the applicant indicates that he comes from a village named [Village 1], [in] the Punjab close to the border of Pakistan. On the basis of the applicant’s passport, the Tribunal accepts that the applicant is from this village. [Village 1] is located in northern Punjab near [specified locations] and the border between India and Pakistan.  Country information indicates that Jammu and Kashmir state in India, which includes territory over which Pakistan claims sovereignty, has experienced ongoing law and order issues.  The 2015 DFAT Country Report for India[1] indicates that:

    There has been a long-running insurgency against the Indian administration in Jammu and Kashmir, accompanied by frequent demonstrations which have often resulted in violence.  As part of this campaign, clashes between militants and security forces have often occurred.  Indian and Pakistani forces frequently exchange artillery and gunfire across the Line of Control in Kashmir.  Clashes in October 2014 killed 16 civilians and caused thousands to flee the area.  Tensions in Kashmir have also been exacerbated by incursions across the Line of Control, which have resulted in the deaths of soldiers.  In one incursion in January 2013, two Indian soldiers on patrol were killed with one being subsequently beheaded.  India alleged that the incursion was undertaken by regular Pakistani troops, rather than militants.

    [1] DFAT Country Information Report, India, 15 July 2015

15. A press [report][2] indicates that there was a terrorist incident in Gurdaspur district [in] July 2015.  This incident involved a 10 hour siege/gun battle with 3 terrorists which resulted in the deaths of 8 people, including 3 civilians. However, the press report described this incident as ‘the first major terror strike in Punjab in eight years’ and a further report[3], while counseling against complacency, noted that the attack ‘is widely being spoken about as an aberration, because it occurred in Punjab’.  The Tribunal concludes that while terrorist activity has occurred near [the applicant’s home region] the level and scale of the reported incidents is not such as to indicate that there is a real chance that an Indian national living in [Village 1] would be caught up in such an incident.

    [2][Information deleted].

    [3] South Asia Intelligence Review.  Weekly Assessments & Briefings.  Volume 14, No. 4, July 28, 2015.

16. In this consideration, the Tribunal also notes the DFAT report, which comments on the security situation in India generally, concludes that:

    Notwithstanding the number of incidents mentioned in this section, in absolute terms the sheer size and diversity of India means most Indians live their lives with a relatively low risk of violence.

17. Country information from the UK Border Agency[4] indicates that, according to the South Asia Terrorism portal database, total terrorism related fatalities ‘continued to decrease’ in India in 2012.  In 2012, 804 deaths were reported, comprising 252 civilians, 139 security personnel, and 413 militants, with 368 of these as a consequence of Naxalite (Maoist) violence.  The numbers for Jammu and Kashmir for 2012 were reported as 117 fatalities, comprising 84 alleged terrorists, 17 members of the security forces, and 16 civilians.

    [4] UK Border Agency. Operational Guidance Note. INDIA. Issued May 2013

18. Based on the above country information, the Tribunal finds that overall the risk of an Indian national being caught up in violence associated with militant or extremist attacks is very low, so low as to not constitute a real chance.

19. On the basis of the evidence before it, the Tribunal finds that there is terrorist activity in India, some of which involves Pakistani nationals, and there has been some activity in the area in which the applicant’s family lives.  However, based on the very limited information the applicant has provided regarding his own circumstances, the Tribunal does not accept that the applicant has been or would be targeted for such activity.  The Tribunal concludes that, given country advice regarding the scale of terrorist activity in India in recent times, there is not a real chance that the applicant would suffer persecution amounting to serious harm, should he return to India on this basis.  

20. In consideration of the applicant’s claims, the Tribunal has also noted that the applicant delayed lodging his protection visa application for a long period, noting that the applicant arrived in Australia in January 2009 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. Had the applicant attended a hearing, the Tribunal would have asked the applicant to explain this delay. As the applicant requested that his decision be made on the papers, the Tribunal has not been able to make these enquiries.

21. Based on the very vague and limited evidence before it, and having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal does not accept that there is a real chance that the applicant will be targeted for serious harm, if he were to return to India, now or in the foreseeable future.

22. The Tribunal finds that the applicant does not have a real chance that, if returned to India, the applicant 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. 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).

23. As the Tribunal has found that there is not a real chance that the applicant would suffer persecution should he return to India, the Tribunal finds that the applicant would not require the protection of the authorities in India.

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). For the same reasons as set out above, the Tribunal also does not accept 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, now or in the foreseeable future.  The Tribunal therefore 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).

    DECISION

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

    Amanda Paxton
    Senior 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.

    …