1601379 (Refugee)

[2018] AATA 575

1601379 (Refugee) [2018] AATA 575 (26 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1601379

COUNTRY OF REFERENCE:                  India

MEMBER:C. Packer

DATE:26 February 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 26 February 2018 at 12:38pm

CATCHWORDS

Refugee – Protection Visa – India – Threats of violence – Land dispute – Lack of evidence of claims – Inconsistent evidence – Applicant did not attend hearing

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. This is an application for review of a decision made by a delegate of the Minister for Immigration (the delegate) to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

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

3. The applicant first arrived in Australia [in] November 2008, as a holder of a Student visa, and had travelled on an Indian passport issued [in] 2006 and valid to [2016].

4. He applied for a [subsequent temporary] visa [in] March 2011 that was refused [in] April 2012, and the MRT affirmed the decision [in] March 2014.

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

6. The applicant did not attend an interview with a delegate.

7. [In] December 2015 the delegate refused the application.

8. [In] February 2016 the applicant applied for review of the delegate’s decision.

9. The applicant was invited to a Tribunal hearing on 22 February 2018 but did not attend.

10. 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.

11. The applicant’s narrative is centred on his father’s property dispute or disputes in the home village in Haryana state. But the applicant did not appear at the scheduled hearing and based on the limited and ostensibly inconsistent available information, I am unable to be satisfied that the applicant genuinely fears that he faces serious or significant harm if he returns to India for any reason.

    CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS

    Background

12. The applicant’s protection visa application provided some basic background information. In the written application the applicant stated that he was born and raised in [a village in] Karnal, Haryana state. He stated he completed his secondary schooling before coming to Australia. He is single and a Hindu. He has parents and a [sibling] in India. He stated he was a student in Australia and completed [various courses]. 

    Summary of claims

13. The applicant claims to fear harm in India from his father’s neighbours and/or a property dealer. His key claims as summarised are:

    ·His father has one property and there is a property dispute. The father is attached to that property as it had been gifted by the grandfather. The property dispute is with neighbours who have threatened the applicant and his father with death if they did more or make any complaint. The neighbours have strong political links, and gave money to the police and politicians so that they will not act.

    ·He cannot relocate as they will find him, and they gave money to some people to kill him.

    ·Alternatively as shown in the father’s First Information Report to police in Haryana: The father purchased a plot of land from a property dealer and paid a deposit. The dealer assured the father the sale deed would be registered by April 2015. However, the dealer failed to register the sale deed and refused to return the deposit. The dealer then attacked the family with weapons.

    Evidence

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

    ·the applicant’s Protection visa application form lodged [in] May 2015, which includes handwritten reasons for seeking protection in Australia

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

    ·the application for review that contains a First Information Report dated [in] 2015 signed by the father in India

15. On 2 February 2018 the Tribunal wrote to the applicant advising that it had considered the material before it but was unable to make a favourable decision on this information alone. The Tribunal invited him to give oral evidence and present arguments at a hearing to be held on 22 February 2018. The invitation advised that if he did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice or taking further action to enable him to appear before the Tribunal. The letter was sent by email, to the address for correspondence he had provided in the review application. He had not notified a change of address for correspondence.

16. The applicant did not appear before the Tribunal on the day and at the time and place he was scheduled to appear. He has not contacted the Tribunal to provide any reason why he could not attend at the scheduled time or to seek a further postponement. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.

17. The Department had not issued a certificate under s438 of the Act.

    Assessment of claims

18. The applicant claims to be a national of India. All the available evidence supports his claim to be an Indian national. India is therefore the receiving country for the purpose of assessing both the applicant’s protection claims, and his claims against the complementary protection grounds.

19. However, I have insufficient information about his personal details and claims including about:

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

    ·The circumstances in India that led him to seek protection in Australia.

    ·The applicant’s fears if he returns to India now and in the reasonably foreseeable future.

    ·The land dispute concerning the father’s property. Who the neighbours are and the extent of their connections and influence; the nature and seriousness of the threats they made; and whether they carried out any threats both before and in the several years after the application was made. Whether the land dispute has been resolved with the passing of time.

    ·The nature and extent of the applicant’s involvement in the father’s land dispute. How and when the applicant had been threatened and in particular details about the death threat.

    ·The circumstances of the father’s First Information Report (FIR) to police in Haryana (provided in the review) that was dated before the application. Why it is in English. Whether this was a different land dispute to the dispute the applicant wrote about in his application. If the FIR concerned the same land dispute that the applicant wrote about in his application, why the details about the land dispute in the FIR are significantly different to the applicant’s account in the application. If the FIR concerned a different land dispute to the one the applicant wrote about in his application, why he did not write about it in the application, and in particular in light of the father’s statement in the FIR that the accused had attacked the family of the applicant with deadly weapons.

20. Based on the limited and ostensibly inconsistent available information, I am unable to determine whether the family/father has had a land dispute or disputes in the village.  I am unable to determine whether the applicant has been involved, and if so, to what extent. I am unable to determine whether any threats made to the applicant are serious and credible and whether he would be unable to get state protection in his home area, or alternatively in another area of India if he relocated. I am unable to be satisfied that in India he fears the father’s neighbours, or a property dealer in Karnal, or the local police and politicians. I am unable to be satisfied that the applicant genuinely fears that he faces serious or significant harm if he returns to India for any reason.

21. In sum, I am unable to be satisfied that the applicant has suffered harm, beatings, threats or any other problems that amount, individually or cumulatively, to serious harm for the reasons set out in s.5J(1), or for any reasons at all. I am unable to be satisfied that he has suffered any harm that amounts to significant harm. 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 local people, a property dealer or his agents, the community or the authorities there, or that he now fears to return to India for the reasons he has provided. 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, or significant harm, arising from any of these circumstances.

    Refugee criterion

22. In light of the above assessment, the Tribunal finds that in India the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for the reasons he claims. The Tribunal finds that in India the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for one or more of the five reasons set out in s.5J(1) of the Act either when looked at individually or cumulatively. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    Complementary protection

23. I considered whether on the evidence before me, 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 he will suffer significant harm. However, based on the information before the Tribunal, and in light of the above assessment, 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

24. 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).

25. 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).

26. 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

27. 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.