1602003 (Refugee)

[2017] AATA 1998

1602003 (Refugee) [2017] AATA 1998 (11 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1602003

COUNTRY OF REFERENCE:                  India

MEMBER:Jason Pennell

DATE:11 October 2017

PLACE OF DECISION:  Melbourne

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

11 October 2017   1.30pm

CATCHWORDS

Refugee – Protection Visa – India – Fear of harm – Interfaith marriage – Drugs – Economic hardship

LEGISLATION

Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
MIEA v Gou (1997) 191 CLR 559 at 572; MIEA v Wu (1996) 185CLR 259

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 2016 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 Indian, applied for the visa on 20 July 2016. The delegate refused to grant the visa on the basis that he was not satisfied that there is a real chance of persecution for one or more of the reasons mentioned in subsection 5J(1)(a) of the Act in the receiving country and that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there is a real risk he will suffer serious harm.

Criteria for a protection visa

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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.

Claims and evidence

1. The applicant said he was born on [birth date] in [Village 1] Punjab, India. He said that his [relatives] still live in the village.

2. The applicant travelled to Australia on a [visa] [in] December 2007. [in] July 2015 he lodged an application for protection. [In] January 2016 the applicant was advised by the department that his application for a protection visa was refused.

Country of reference

1. The applicant provided a certified copy of his Indian passport [passport number] issued in Amritsar [in] 2012. The Tribunal accepts that the applicant is a citizen of India and that India is the country of reference.

Issue

1. The issue is whether or not Australia owes protection obligations to the applicant. For the reasons set out below the Tribunal has affirmed the decision.

The Applicants Protections claims

1. The applicant provided little detail of his protection claims in his application.  His claims appear in that application as follows:

   Why did you leave that country?

   ‘I am from India. I belong to Punjab and my village located near the Pakistan border which is almost addicted to drugs. Even all my [relatives] stuck on drug. There is no work, life’s are not safe. If we go outside from home for work we do not know we will come back. So everything is unsafe there I don’t want spoil the future any my children.’

   What do you think will happen to you if you return to that country?

   ‘If I return to my country I can’t bright my future. My next generation I think all be drugy.’

   Did you experience harm in that country?

   ‘The Government is corrupt they selling all types of drugs’

   Did you move, or try to move, to another part of that country?

   ‘I don’t have enough money to move other part.’

   Do you think you will be harmed or mistreated if you return to that country?

   ‘Drugs everywhere, water going down day by day.’

2. [In] August 2015 the applicant’s representative sent an email providing the following additional claims:

   (a)  The applicant claims that he had received threats from drug addicts. On one occasion four men asked for his contact number and where he lived. When he refused to give this information, they started beating him.

   (b)  The applicant claims the he was in a genuine relationship with a Muslim girl. Her [relatives] had seen him with her and as a result he and his family had received threats from her family in [Country 1]. She has some relatives in India with a political background and the resources to be able to locate him upon his return to India. On his last visit to India his car was followed from the Airport.

Evidence of the Applicant

1. The applicant confirmed that he arrived in Australia in December 2007 on a [visa]. He had initially enrolled in a [course] which he later discovered was not an accredited course. He then undertook a[course] at [institution] in [State 1]. His [relative] provided the financial means for him to travel to Australia and attend each course.

2. The applicant has a [details of relatives]. In his application they are listed as living at his address in [address], [State 1]. However, at the hearing he said that each of them continue to live in the village of [Village 1] Punjab in India. His [relative] works as a [occupation] in the local [workplace]. The Tribunal accepts the applicant’s evidence at the hearing in relation to his family.

3. As to his claim concerning drugs in his community he said that he had not been directly threatened. However, he had been approached by drug addicts for money and to see if he wanted to purchase drugs. He said that the situation was bad for his future prospects and, despite not having any, for his children. The Tribunal accepts that there is a drug problem in the State of Punjab and in particular in and around the applicant’s community close to the Pakistan border.

4. The applicant’s evidence was that in 2007 he had a relationship with a Muslim girl prior to coming to Australia. The applicant did not provide the Tribunal with her name. He said that her family had not approved of the relationship. He said that there were many occasions on which he and the Muslim girl were seen together by her [relatives] and their friends and that he was subsequently threatened and beaten by them in his Village. He also said that members of her family had planted drugs on him for the purpose of informing the police and getting him in trouble. However, the applicant was only able to to provide the Tribunal with broad details of the threats and beatings and not specific details as to the time, location of the beatings and nature of the threats made by the girl’s family members.  He said that on his return to India in 2009 and 2012 members of her family had followed him from the airport, but he was not approached or threatened by the girl’s family on either occasion. The Tribunal accepts the applicant’s evidence that he was in a relationship with a Muslim girl and that he had received threats from her family.

5. On 14 September 2014 the applicant married [Mrs. A]. [Mrs. A] is an Australian resident with [details of heritage]. They were married in Australia. Only [Mrs. A]s family attended the wedding. His family did not travel from India to attend the wedding. He said that his family had no concern over the fact that he had married someone from a different nationality and cultural background. There are no children to the marriage.

6. [Mrs. A] did not attend the hearing and the applicant did not provide any the Tribunal with a copy of the marriage certificate, although he indicated that he could return home and get it. In the absence of any evidence to the contrary I accept that the applicant was married to [Mrs. A].

7. The applicant said he had been working as [Occupation 1] but was not currently employed. He said however, that, he received approximately [amount] per week for [Activity 1].  His wife works as a [Occupation 2].

8. The applicant was asked by the Tribunal if a result of coming to Australia and his marriage to [Mrs. A], the relationship with the Muslim girl had ended. He confirmed that it had. He was then asked by the Tribunal, given that the relationship had ended, whether he was still threatened by the Muslim girl’s family. He said that he was not. He said that despite having been followed from the airport by the Muslims girl’s family upon his return to India in 2009 and 2014, he had not received any further threats. I accept this evidence from the applicant. The Tribunal therefore finds there is no real chance of him being seriously or significantly harmed upon his return to India.

Country Information

1. The DFAT Report on the India State of Punjab dated 7 December 2016 (‘the DFAT Punjab Report’) confirms that illicit drug use is a major issue in Punjab generally. It states that:[1]

   ‘Illicit drug use is a major issue in Punjab, reportedly more than in in most other part of the country. Regular use of small amounts of unprocessed opium is a common traditional practice in Punjab, particularly among the states rural population, and is akin to the use of coffee in western society. Over the past couple of decades, however, more processed narcotics such as heroin and methamphetamine are being used and an addition has risen….’

   [1]   Australian Government, Department of Foreign Affairs and Trade, ‘DFAT Thematic Report- Indian State of Punjab’ dated 7 December 2016 at paragraph 2.18.

2. In relation to the Punjab police force the DFAT Punjab Report notes that the police capacity is very low. It sates:[2]

   ‘The Punjab police force is a state run force with around 76,000 personnel. Multiple creditable sources – including from civil society representatives, journalists, lawyers and members of the diplomatic corps- told DFAT that Punjab police capacity is very low, particularly in investigating capacity, and the police have a poor reputation, with his levels of corruption. These sources reported that police are involved in the drug trade, as well as extortion of suspected LGBTI people and incidents of extra judicial killings, known as ‘fake encounters’. There are also perceptions of political interference in policing, with reports of large scale movement of senior officers following changes in government.’ 

Does the applicant fear persecution for reason of his race, religion, nationality, membership of a particular social group or political opinion and is his fear well-founded?

[2]   Op Cit at paragraph 5.1

1. 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 well founded or that it is for the reason claimed. A fear of persecution is not ‘well founded’ if it merely assumed or if it is mere speculation.[3] A fear is only ‘well founded’ in circumstances where there is a factual basis to it and there is evidence to substantiate that the person is at risk of persecution.[4]

   [3] MIEA v Gou (1997) 191 CLR 559 at 572; MIEA v Wu (1996) 185CLR 259 at 293

   [4]ibid.

2. At the hearing the Tribunal explained to the applicant the criteria for being granted protection as a refugee under the s.36 (2)(a) of the Act. It was explained to the applicant that he required a well-founded fear of persecution for those reasons as set out in s.5J of the Act. It was also explained that such persecution had to relate to all areas of India.

3. The applicant’s claim s.36(2)(a) of the Act is based on a fear of persecution arising out of a prevalence of drugs within the community. While the prevalence of drugs in the community is a legitimate concern, the applicant has not suffered serious harm or fears persecution upon his return to India by reason of his race, religion, nationality, member of a social group or political opinion. The characteristic of drugs is that it affects all people from all walks of life regardless of one’s race, religion, nationality, membership of a particular social group or political. The applicant was approached by drug addicts for money and if he wanted to purchase drugs. The harm that the applicant has suffered as a result of being approached by drug addicts cannot be said to be harm arising by reason of his race, religion, nationality, political opinion or membership of a political social group.

4. Further, the applicant claims a fear of persecution due to threats by the Muslim girl’s family members. The applicant claims that there were many occasions on which he and the Muslim girl were seen together by her brothers and their friends and that he was subsequently threatened and beaten by them in his Village. However, the applicant’s evidence that the relationship had ended and that he was not approached or threatened by the Muslim girl’s family upon his return to India indicates that there is no real chance of the applicant being seriously harmed upon his return to India. As such the Tribunal finds that the applicant does not hold a well-founded fear of persecution upon his return to India

5. Therefore, the Tribunal finds that there is no real chance that the applicant would be persecuted for reason of his race, religion, nationality, membership of a particular social group or political opinion if he was to return to India. His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H. The Tribunal therefore finds that the applicant it is not a person which Australia has protection obligations under s.36(2)(a) of the Act.

Does the applicant meet the criteria for complementary protection?

1. Pursuant to s.36(2A) of the Act 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.

   The applicant’s evidence was that he had been approached by drug addicts for money and to purchase drugs. While the Tribunal accepts there is a drug problem in the State of Punjab and in particular in and around the applicant’s community close to the Pakistan border, it does not accept that the applicant’s residence in Punjab under these conditions are “unsafe” or that such conditions represent serious or significant harm.

2. He said that influx of drugs from Pakistan across the border into his local area was bad for his future prospects and, despite not having any, for his future children. Other than the fact that he had been asked for money by drug addicts and offered drugs for sale there was no evidence of significant harm he would suffer the foreseeable future. There was no suggestion by the applicant that being asked for money or being offered drugs for sale by drug addicts that he in fact had or was likely, as a foreseeable consequence of being returned to India, suffer significant harm as defined in s.36(2A) of the Act. There is no suggestion by the applicant that upon his return to India he will be arbitrarily deprived of his life or be subjected to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. In fact his evidence was that upon his return to India on two previous occasions he did so without any fear of being significantly harmed.

3. Therefore, the Tribunal finds that there are no substantial grounds for believing, that as foreseeable consequence of the applicant being removed to India, there is a real risk that the applicant will suffer significant harm. He is therefore not a person in respect of whom Australia has protection obligations as outlined in paragraph 36(2)(aa) of the Act.

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 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).

3. There is no suggestion that the applicant satisfies ss.36(2)(b) or (c) 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).

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

Jason Pennell
Member