1607291 (Refugee)

[2019] AATA 2517

1607291 (Refugee) [2019] AATA 2517 (21 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1607291

COUNTRY OF REFERENCE:                  India

MEMBER:James Silva

DATE:21 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 21 February 2019 at 9:31am

CATCHWORDS

REFUGEE – protection visa – India – ethnicity and religion – Sikh – Hindu fanatics – discrimination ­­– no persuasive evidence – no well-founded fear of persecution – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 426A, 499
Migration Regulations 1994 (Cth), 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 in his late [number] from India.

2. He first arrived in Australia in April 2014, as the holder of a student visa. His most recent arrival was in August 2014. He applied for a protection (class XA) visa on 26 May 2015. On 5 May 2016, the delegate refused the application pursuant to s.65 of the Act.

3. This is an application for review of that decision.

4. The applicant was invited to a Tribunal hearing on 20 February 2019, but did not attend.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Criteria for a protection visa

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

   Claims and evidence

7. The applicant is a [age] year old man from Delhi, India. He is a Sikh (ethnicity and religion), and gives his languages as Punjabi, English and Hindi.

8. The applicant indicated that he lived at one address in New Delhi up to the time of his departure for Australia. In relation to his education, he indicates only that he attended the [an education facility] in Dehradun in 2006/2007 (at the age of [age]). From April 2007 until his departure from India, he was [employed] in [a] business in [a village], New Delhi.

9. The applicant is unmarried. His parents are Indian nationals who, at the time of application, were living in [Country 1]. He has two older sisters, both [Country 1] citizens and living in that country.

10. The applicant holds an Indian passport issued in Delhi in [2010]. As noted above, he first came to Australia in April 2014, on a student visa. He departed Australia [in] July 2014 and returned [in] August 2014. He lodged an application for a protection visa on 26 May 2015.

11. The applicant claims to be an Indian national, and he presented a partial photocopy of his Indian passport, which he claims to have lost. The Tribunal is satisfied on the basis of the available evidence that he is an Indian national. India is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.

12. The applicant’s protection claims are, in summary:

    He is a Sikh. Hindu fanatics, inspired by Prime Minister Narender Modi, are targeting the entire Sikh community.

    After Sikh guards assassinated former Prime Minister Indira Gandhi, Hindus killed thousands of Sikhs and burned their homes. At one point, the applicant’s father fired on the mob, and killed several attackers in self-defence. In response, they assaulted his father and burned down the applicant’s home. His father survived the attack. From that time, Hindu fanatics (such as members of RSS[1] and Shiv Sena) have had the applicant’s family on a hit list. Moreover, RSS is now targeting members of minority groups more generally.

    The applicant claims to have tried to lodge a complaint (not further specified) with the police station, but the police refused to record the complaint or take action to protect the applicant.

    He claims that Hindu fanatics prevail throughout India, and he left the country to save his life from them.

    The applicant claims that Hindu fanatics are in power at the federal level, and they will definitely kill him if he returns to India.

    [1] Rastriya Swayamsevak Sangh, an Indian right-wing, Hindu nationalist, paramilitary volunteer organisation.

13. The evidence before the Tribunal includes the following relevant material: -

    §  The completed protection visa application form, which includes the applicant’s brief reasons for seeking protection (at questions 90-97, and also question 71).

    §  A passport photocopy of the applicant’s Indian passport (biodata and back pages); he also provided a copy of his NSW photo card.

    §  The delegate’s protection visa assessment record (‘delegate’s decision record’) of 5 May 2016. The delegate invited the applicant to an interview, but he failed to attend.

    §  The applicant lodged an on-line application for review on 25 May 2016. He attached to the application form a copy of the delegate’s decision record and the notification of refusal.

14. On 4 February 2019, the Tribunal wrote to the applicant advising that it 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 20 February 2019. 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 indicated in the review application.

15. The Tribunal received no response to the invitation letter. As an added precaution, the Tribunal sent the applicant SMS hearing reminders on 13 February 2019 and 19 February 2019, to the mobile telephone number provided to the Tribunal. The delivery of the messages failed. The Tribunal also checked Department and Tribunal records for any indication as to whether the applicant has provided further contact details since the lodgement of his review application. These checks yielded no new information. 

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 by the start of business 21 February 2019, to seek a postponement of the hearing, or to provide any reason why he could not attend at the scheduled time. Indeed, the applicant has not communicated with the Tribunal since the lodgement of his application for review in May 2016. 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.

    Consideration of claims and evidence, and findings

17. The Tribunal has before it several brief, vague and unsubstantiated claims spanning general country information, historical events and his family’s adverse profile as Sikhs who have stood up to Hindu extremist violence. At hearing, or in any other communication with the Tribunal, he would have had an opportunity to clarify some of these issues, provide relevant background information, and detail how these give rise to Australia’s protection obligations.  Among the matters on which the Tribunal has insufficient evidence are the following:

    §  Details of the applicant’s education, work history, past travel and family circumstances, insofar as these shed light on his personal circumstances and help to assess his need for protection. Of potential relevance would be further information on the circumstances in which his two older sisters became [Country 1] citizens; his parents’ residence there (at the time of application, although there current whereabouts are unknown); and what remaining relatives or contacts he has in India.

    §  Details about his father’s alleged killing of several Hindu fanatics who attacked him following the assassination of Indira Gandhi in October 1984, including: particulars of the attack on his father (the assassination itself took place almost six years before the applicant was born, so the date of the attack of his father is of interest); whether his father was identified as having killed these persons, and held to account; details of any further retaliatory assault of the father, and the burning down of the applicant’s home; the impact this had on his family’s place of residence, income and other activities; and whether it has any lasting relevance for the applicant’s father or the family as a whole.

    §  Details of any subsequent adverse consequences for the applicant’s family, including the basis for the applicant’s view that they remain on a hit list of RSS and Shiv Sena, and the practical consequences of this.

    §  Information about the applicant’s (or his family’s) dealings with the police, such as the occasion(s) when they complained to the police, and what the response was.

    §  Background to the applicant’s return visit to India in July/August 2014, particularly given his claim to be subject to long-term, pervasive persecution or significant harm.

    §  The applicant’s activities in Australia, including what led to his lodgement of a protection visa application some nine months after his most recent arrival.

    §  An update on the applicant’s future plans if he returns to India; what harm he fears; and whether he fears harm on the basis of his Sikh ethnicity and/or, more specifically, his father’s (and family’s) claimed profile with Hindu fanatics.  

18. The Tribunal accepts that the applicant is a Sikh, based on his name and physical appearance on his Indian passport.

19. However, on the limited available material, the Tribunal is unable to be satisfied that he (or his family) has suffered discrimination or mistreatment as a result of their Sikh ethnicity/religion generally; that his father killed some Hindu fanatics who were part of an mob attacking him following Indira Gandhi’s assassination; that extremists retaliated by physically assaulting the applicant’s father and burning down the family home; that Hindu fanatics have placed the applicant’s family on a ‘hit list’ from that time (and, by implication that they remain on such a list); or that the applicant (and his family) sought police protection in response to one or more these incidents, but the police refused to assist. The Tribunal is unable to be satisfied about any of the associated claims.

20. The applicant has not claimed to fear harm from any other source, and no other claims are apparent on the information before the Tribunal.

    Refugee criterion

21. In light of the above findings, the Tribunal is not satisfied that the applicant faces a real chance of serious harm amounting to persecution arising from any conflict that his father has had with Hindu fanatics in the past, or any ongoing associated adverse family profile. The Tribunal is also not satisfied that the applicant (or members of his family) face a real chance of being denied police or other State protection in the past, on the basis of their Sikh ethnicity/religion or any adverse profile that they may have.

22. The Tribunal accepts that the applicant is a Sikh, but for the reasons set out above, it is unable to be satisfied that Hindu fanatics have targeted him for discrimination, mistreatment or other harm amounting to persecution for reason of his ethnicity or religion in the past. The delegate’s decision record, which the applicant attached to his application for review, sets out historical information about Sikhs in India (including the 1984 anti-Sikh riots that the applicant appears to be alluding to) and the Hindu nationalist tones set following the 2014 national parliamentary elections and the prime ministership of Narendra Modi. The Tribunal has no persuasive evidence before it – including in the applicant’s personal circumstances, his return to India in 2014, and the country information set out in the delegate’s decision record – to indicate that the applicant faces a well-founded fear of persecution from Hindus (fanatics and/or sympathetic government officials) for reason of his Sikh ethnicity and religion.

23. It follows that the Tribunal is also not satisfied that he has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1) should he return to India – these include his Sikh ethnicity/religion, any experiences that his father may have had with Hindu fanatics in the past and the family’s profile. The applicant has not claimed, and there is nothing to suggest, that he has a well-founded fear of persecution for any other reason listed in s.5J(1).

24. 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

25. 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). However, based on the information before the Tribunal, and the assessment of facts above, 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 would be a real risk that he will suffer significant harm.

26. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

27. 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

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

    James Silva
    Member

    
    

    CRITERIA FOR A PROTECTION VISA

    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.

    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, which are extracted in the attachment to this decision.  

    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

    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.