1609632 (Refugee)

1609632 (Refugee) [2019] AATA 3605 (18 March 2019)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1609632
COUNTRY OF REFERENCE:                  India
MEMBER:Justin Meyer
DATE OF DECISION:  18 March 2019
DATE CORRIGENDUM
SIGNED:1 April 2019
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:
The words "section 351 of the Migration Act" in paragraph 9 and paragraph 119 in the decision record of 18 March 2019 are removed and are replaced with "section 417 of the Migration Act"

Justin Meyer
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1609632
COUNTRY OF REFERENCE:                  India
MEMBER:Justin Meyer
DATE:18 March 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 March 2019 at 8:43am
CATCHWORDS
REFUGEE – protection visa – India – does not meet requirements for grant of Protection visa by own acknowledgement– unique or exceptional circumstances – serious, ongoing and irreversible harm and continuing hardship to an Australian citizen – mother and sister both Australian citizens – ailing mother – substantial emotional and physical support – long length of time in Australia – highly integrated into the Australian community – no connection with India – unfair or unreasonable results – does not speak any Indian language – acted in good faith in relation to migration status – exemplar person – Ministerial Intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 417
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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 June 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of India, applied for the visa on 8 April 2015. The delegate refused to grant the visa on the basis that he did not have a well-founded fear of persecution nor did he have a real chance of significant harm.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of persecution or a real chance of significant harm. The other matter that the Tribunal is to resolve is whether the applicant’s matter should be referred to the Minister for Home Affairs (the Minister) with a recommendation that, pursuant to section 417 of the Migration Act 1958, the Minister intervene on public interest grounds to grant him a permanent residence visa.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of Protection Claims
The applicant's written claims are summarised below:
The applicant claims he is a Christian who was born in [Country 1]. He claims he does not hold citizenship in [Country 1] and has never lived in India.
The applicant claims his father ([Mr A]) was abusive and his parents sent the applicant and his sister to Australia to study. The applicant claims he came to Australia when he was [age], completed his secondary schooling and later completed a [qualification in Discipline 1] in [Country 2] in [year] before enrolling in a [higher qualification] at [Australian University 1 the following year].
The applicant claims he is unable to return to India as he does not know the language and is not familiar with the culture. He claims he will not being able to find employment, does not have any relatives in India to support him as his mother and sister live in Australia and the social welfare in India is inadequate.
The applicant claims his abusive father lives in India and he fears meeting him.
The applicant claims the Indian authorities are often ineffective when it comes to support for domestic abuse victims.
The applicant claims he is not able to relocate within India as he does not know the language, has no relatives, is unable to find employment and is unfamiliar with the culture.
The delegate 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. Therefore, the applicant is not a refugee as defined in section 511 of the Act and the criterion in paragraph 36(2)(a) of the Act is not satisfied for this reason.
The delegate found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to India, there is a real risk the applicant will suffer significant harm as required by s36(2)(aa) of the Act. Therefore, the applicant is not a person in respect of whom Australia has protection obligations as outlined in paragraph 36(2)(aa) of the Act.
Applicant Migration History
On 8 April 2015, the applicant made an application for a Protection (subclass 866) visa. This application was refused on 14 June 2016.
It is acknowledged by the applicant that he does not meet the requirements for the grant of a Protection (subclass 866) visa. He requests that the Tribunal refer his case to the Minister for Home Affairs (the Minister) and recommend that, pursuant to section 351 of the Migration Act 1958, the Minister intervene on public interest grounds to grant him a permanent residence visa. It is submitted that the applicant’s circumstances are clearly ‘unique and exceptional’ as described in the guidelines to warrant the intervention of the Minister using his personal powers pursuant to section 417 of the Act.
The applicant has submitted the information along the following lines.
The applicant was born [in] [Country 1] on [date]. A birth certificate indicates his parents as [Mr A] and [Ms B].
His parents are Indian citizens who moved to [Country 1] on working visas in 1970. As Anglo-Indians, their connection to India was more peripheral to the cultural mainstream. English was always spoken in their home. By virtue of his Indian background, the applicant was granted Indian citizenship, but he does not speak any Indian language, has never lived in India and has no personal, familial or cultural connections to the country. I accept based on the evidence from the departmental file that the applicant is an Indian citizen.
The children were raised in a household that was beset by the domestic violence administered by [Mr A].
The applicant’s parents’ relationship nonetheless continued and the applicant’s mother was a devoted mother.
The family lived in a household with a man who subjected them to ongoing psychological and physical abuse. The applicant’s father’s philandering destabilised their home.
The applicant’s mother, [Ms B], made a plan to provide for the safety of her children.
It was agreed that the children were not safe at home with their father and that they would be better off to go to Australia to complete their studies. [Relatives] living in [Australian City 2] agreed to be guardians to the children on the weekends.
The applicant’s mother separated herself from her two children to keep them safe from their father. The applicant arrived in Australia [in] January 1990 as the holder of an international student visa [in] January 1990. He completed secondary schooling in Australia and spent short periods of time outside Australia, visiting his parents in [Country 1] in school breaks.
Documents give evidence that the applicant was a dedicated student at [School 1] until completing his [secondary education] in [year].
His sister [Ms C] made a statutory declaration dated 11 September 2018, in which she recalls her close relationship with the applicant after his arrival in Australia.
The applicant enrolled in [Australian University 2]. Copies of his enrolment documents at [Australian University 2] were forwarded.
In May 1995 he stopped studies at [Australian University 2] and left Australia to undertake studies in [Country 2] to undertake [a qualification in Discipline 1].
Around this time, the applicant’s parents finally decided to separate.
After the separation, the applicant decided to return to Australia to undertake studies at [Australian University 1], the cost of which would be borne by his parents.
Movement records indicate that he entered as the holder of a Student [visa in] February 1997 that was due to cease on 15 March 2000. He left Australia [in] January 1998 and while he was offshore, his mother [Ms B] made an application for a Parent (subclass 103) visa on 5 January 1998. The applicant was included as a dependent on this application.
This application was refused because the applicant’s sister [Ms C] was not considered to be a “settled” Australian resident. This was because [Ms C] became a permanent resident of Australia only on 11 January 1997.
[Ms C], who had been living in [Australia] when the applicant first returned to Australia in 1997, moved to [City 2] to pursue a job opportunity in 1999 and she and her brother started to live together.
[Ms C]’s citizenship certificate indicates that she became an Australian citizen [in] March 1999.
The matter becomes complicated at this point, and the Department of Home Affairs appears to have had difficulty in establishing timeline.
The Protection Visa Assessment dated 14 June 2016 states:
“[February] 1998 Arrived in Australia as the holder of a Class TU [visa]
16 March 2002 Became an unlawful non-citizen”
Around 16 March 2000, the applicant’s father made an application for a Parent (subclass 103) [visa], with his mother ([Ms B]) and the applicant listed as his dependents. This application was sponsored by [Ms C]. Correspondence from the Australian High Commission in Kuala Lumpur dated [March] 2000, [June] 2000 and [July] 2001 shows this.
Around the same time, [Mr A] ceased contact with his family. The family have not been able to contact him since then. He stopped providing financial assistance to the children, including the payment of the applicant’s university tuition fees. The applicant was in a dire position. He could no longer afford rent. [Ms C] moved in with a friend as she was unable to support both of them on her income at the time.
[Ms B] was also unable to help him financially after she had paid for her share of my university course fees. She was preparing to come to Australia.
[Ms B]’s movement records indicate that she made two trips to Australia around this time - a trip to Australia in December 2000 so that she could look at house prices and return to [Country 1] and apply for a bank loan. She then returned to Australia in August 2001 to finalise the purchase of a house, which had a three month settlement. In order to settle the payment, she applied for a bank loan of AU$100,000 from [a] Bank in [Country 1], and continued to repay the loan monthly which amounted to 85% of her monthly salary.
This period was a dark and unstable period in the applicant’s life. He struggled to support himself financially. His mother and sister were under great financial pressure and could not support him. He could not afford to pay rent or bills. He was evicted from his apartment and the landlord changed the locks in his room without his knowledge. He could not reclaim most of his belongings at the time, including his passport, food and some clothing. With no identification, little money, no health insurance and few belongings, he sought assistance from friends who were fellow university students.
There was confusion around the Parent visa application. [Ms B] sought clarity from the Australian High Commission as to what could be done about her application. The parties had applied as [Mr A and Ms B] sponsored by their daughter [Ms C]. There were considerable problems in the marriage but she was unable to file for a divorce as she was afraid that it would hinder her move to Australia, leading to more delay.
[Ms B] wrote to the High Commission under her stressful circumstances, her daughter wished to remove her father from her sponsorship. Only after [Ms B] heard back would she agree to the divorce filed by her husband through his lawyer. She intended to move to [City 2] as from 1 September 2002 to live with her daughter. [Ms B] indicated that it was not her but her husband who was withdrawing from the family application.
An email dated 9 November 2001 from the Australian High Commission states:
“I refer to our previous email correspondence regarding your wish to exclude your husband from your queued migration application. My advice of 10/9/01 stands. I note that your husband must exclude himself from the application, neither you nor your daughter can do so on his behalf. You are only able to exclude yourself from the application.”
An email dated 10 November 2002 from [Ms B] states:
“I understand that neither I nor my daughter [Ms C] can exclude my husband from the application.. there may be some other way she can deal with the present situation as she is very anxious to have me near her.. I have been more than a mother and father to both the kids all their lives and they need me near them during this difficult time… “
Another email from [Ms B] dated 26 November 2001 states:
“In the event if my husband decides to exclude himself from the application, will you, very kindly, be able to notify me as he does not communicate with any of us?”
A further email from [Ms B] dated 30 November 2001 states:
“I have been told by my lawyer that my husband is pushing divorce ahead and he has agreed to withdraw his application to migrate to Australia but my lawyer needs to know the following things
[Mr A]’s withdrawal should be applicable ONLY to himself.. not to me and our son [the applicant] who are in the same application”
[Ms C] then tries to clarify the matter through an email to the Australian High Commission dated 3 December 2001:
“I am trying to clarify a few matters regarding changes in the application information.
In the event that my parents are divorced and my father agrees to exclude himself from the migration application, I would like to confirm that the changes to the file/application will be:
The exclusion from my father from the application should not in any way jeopardise the queue position of rest of the applicant i.e. my mother and brother
My father will only be able to exclude himself from the application
If my father does try to withdraw the entire application, that the KL office will not allow this to happen before contacting my mother”
An email dated 3 December 2001 from the Australian High Commission states:
“1 No. The queue date has already been fixed as advised..
2 Yes, this has been explained before as well in previous emails
3 Your father cannot withdraw the entire application… one can only exclude oneself from this application”
According to the applicant, the confusion in this exchange is evident and reflects the turbulent and uncertain circumstances that [Ms B] and her children were going through and the failure of Immigration officials to correctly ascertain the (admittedly complex) law in such a situation.
Amidst this confusion, the applicant’s student visa was due to expire on 15 March 2002. He submits that at the time that it expired, he intended to extend it. But his father refused to pay his share of his university course fees and he alone could not afford to extend it. He remained in the country with the hope that his father would allow him to remain as a dependent applicant on his application for a Parent visa. However, because of the events described, his father ceased all contact with his mother, his sister and him in that year. He could not believe that he would remove him from his application. He remained hopeful to hear from him. He is his only son and he did not think he would leave him stranded in such a way.
In the time that had elapsed since his father ceased contact with him and stopped paying his course fees in 2000, the applicant had just managed an existence for himself and things improved when [Ms B] returned to live in [City 2] in September 2002 as the holder of a visitor visa. He supported himself through casual jobs to afford rent in a share house. Things improved when his mother moved to [City 2] permanently in September 2002. He could not live at her home because she lived outside the city,
The applicant’s mother, [Ms B], made separate application for a Contributory Parent (subclass 143) visa.
On 28 February 2003 the Perth Offshore Parents Centre wrote to [Ms B] and [Mr A] (at separate addresses) indicating that the application had been transferred to this centre from the Australian High Commission in Kuala Lumpur. The letter indicated that the application still includes [Mr A], [Ms B] and [the applicant] and that its processing continues.

[Ms B] withdrew from the Parent visa application on 22 June 2003 and a case note on the file dated 11 August 2003 states:
“[Ms B] w/drawn from this application as s/c143 application lodged 27/6/03. Spouse will migrate later. [Ms B] advises on her s/c 143 application that her son [the applicant] (who was queued as a dependent on this s/c103 appln) is no longer a dependent and he is not included in s/c143 application”
It is unclear how the situation came about. The applicant’s representative was instructed that [Ms B] withdrew from the Parent (subclass 103) visa application and made an application for a Contributory Parent (subclass 143) visa on 27 June 2003. She did not know that she could include [the applicant] on this application and would have done so if she could. It would have saved her and her family a lot of grief and uncertainty if she could have included him on her application at the time, in the words of the applicant.
[Ms B] was granted a Contributory Parent (subclass 143) visa on 11 February 2004 and became a citizen of Australia in 2006. The family were happy to be in Australia together but remained fearful as to what was to be done about the applicant’s status in Australia.
On 18 October 2005 the Perth Offshore Parents Centre indicated that the applicant was in fact still listed as a dependent on his father’s visa application at the time. Correspondence from [Mr A] dated 25 October 2005 states:
“My son [the applicant] is not a dependant any more as he is employed and [age] years old. Therefore I wish to ask you to withdraw him from the application… I am unable to furnish a certified evidence of residency for [the applicant] as I am not in contact with him…”
A response from the office dated 28 October 2005 states:
“I require a letter from your son, [the applicant], to provide evidence that he is no longer a dependant and withdraw himself from your application.”
A decision record of the Department of Immigration dated 12 June 2006 indicates that the application was refused on 12 June 2006 because [Mr A] failed to provide a new sponsorship form signed by [Ms C]. He could not provide this form because he had had no contact with his family for six years at this point.
The applicant did not know about the refusal as he did not have any contact with his father. He continued his uncertain existence in Australia. He states he supported himself through various jobs until August 2014. He lodged accurate income tax returns with the Australian Taxation Office during this period as an Australian resident for tax purposes. It was never his intention to be in a position to be living in Australia illegally.
The applicant was forced to stop working when he experienced serious health problems in August 2014. He became very ill and underwent [surgery] at [a named Hospital]. He was considered an overseas patient at the time and his mother supported him to pay over $14,000 in hospital bills.
During his recovery, the applicant and his family took a decision that it was time to try to legalise his status in Australia. They consulted with a lawyer/ migration representative and lodged his application for a Protection (subclass 866) visa on 8 April 2015.
He has been living in Australia since his return to Australia in 1997, a period of over two decades. His mother and sister, his only immediate family, are Australian citizens who reside in [City 2]. There is no doubt in his mind that he is emotionally and functionally an Australian, and his bond to his mother and his sister is extremely strong because of what they have been through together.
Cases to be brought to the Minister’s attention
The applicant submits that he falls within the Minister’s guidelines for intervention pursuant to section 351 of the Act as follows.
Unique or exceptional circumstances
The Minister’s guidelines state that the types of cases that should be brought to the Minister’s attention are those cases that raise unique or exceptional circumstances. The applicant submits that his case is unique and exceptional in that there are:
“Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit where at least one member of the family is an Australian citizen or Australian permanent resident;
The length of time the person has been present in Australia and their level of integration into the Australian community;
Circumstances where application of relevant legislation leads to unfair or unreasonable results in a particular case”
“Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit where at least one member of the family is an Australian citizen or Australian permanent resident would occur.”
It is submitted that the applicant, his mother [Ms B], his sister [Ms C] and her husband, are all extremely close because of what they have been through together.
[Ms B] has been highly reliant on the applicant since they started living together in 2013 it is submitted. She has [a medical condition] for which there is no known treatment or cure. [Details deleted]. She experiences symptoms including headaches and high blood pressure. She tries to manage the complications with blood pressure medication which the applicant assists her to take daily. He helps her monitor her blood pressure by taking daily reading and monitoring medication to ensure she takes the correct daily dosage at the appropriate time.
It is submitted that [Ms B] is a highly active and devoted member of the Australian community. She is a volunteer at [a] Museum. Leaders of this body gave testimonials about her service and character. Depsite health cares, she has pressed on. The applicant has cared for her after emergency hospital stays. She does not know what she would do if he had to leave Australia and return to India, as she simply could not cope with the separation. If her son were to leave Australia, she would have no choice but to move to India, re-apply for her Indian citizenship, withdraw all her money from Australia, buy a house and settle down in India. She does not know which part of India they would be able to settle down in and whether or not she would be able to live within close proximity to [medical specialists] required for monitoring of her health issues. Travelling will undoubtedly risk her health as her recent illness has meant that she is unfit to travel for the foreseeable future.
If the applicant had to leave Australia, [Ms B] would either be forced to live apart from him or be forced to uproot her life while she is ill to go to be with him. Either option would result in serious, ongoing and irreversible harm and continuing hardship to a [age] year old Australian citizen who has recently suffered a stroke.
A Psychological Assessment and Treatment Summary Report by [Dr D] dated [September] 2018 states:
“[Ms B] said she had been hospitalised in [Country 1] with severe anxiety when her marriage broke down. She was diagnosed as suffering from anxiety and stress by the GP who referred her to me on a [Mental Health Care Plan]. She said she was not sleeping very well and takes Temazepam to induce sleep. She is now very dependent on her son for looking after her following her recent illness and fears what will happen to both him and her if he is sent back to India – she said she would have to go with him as he would be unable to fend from himself – they appear to have become very co-dependent.
My diagnosis is that [Ms B] is suffering from a severe adjustment disorder with mixed emotions of anxiety and depression, which is consistent with the stress and fears she has over what will happen to her son [the applicant] in his process of trying to remain in Australia and obtain a valid visa and subsequent citizenship. She has readily accepted a recommendation for ongoing counselling to help overcome her severe state.
It is clear to me that [the applicant] provides substantial emotional and physical support to [Ms B] especially following her recent illness – he drives her to all appointments and generally looks after her as she recovers from her illness…
The likely impact on [Ms B] if she had to remain in Australia would be an exacerbation of her current severe anxiety condition – it is likely she would remain in a very distressed state and this is why she believes she would have to go with him if he was sent to India. It seems possible she would not be allowed to travel by plane due to her medical condition and this would stress her even more.”
The applicant’s sister [Ms C] declares that hers is a close knit family. She speaks with her mother and her brother (who live together) every day on the phone. She sees them a few times a week. They always celebrate all family birthday and religious events together with her husband, [Mr E], who joined the family in 2012.
She declares that if the applicant were forced to leave Australia, her mother would have no alternative but to leave with him to go back to India and this would break up their small family unit. Her husband and her are unable to have children so having her mother and [the applicant] in [City 2] is a comfort to her. She declares that it would be devastating to be separated in such a way, when they have already been through so much pain in their lives. She would be left in Australia with no immediate family which would cause her mother further emotional and physical distress that she would not be able to cope with.
It is submitted that the departure of the applicant would cause irreversible harm and continuing hardship to two upstanding members of the Australian community.
In regards to the length of time the person has been present in Australia and their level of integration into the Australian community, it is submitted that the applicant resided in Australia during his formative years (from 1990 to 1995). A letter is cited, dated [March] 2015 from [Mr F], [a] former [official] of [City 2]in 2015 which states:
“I met [the applicant]… in 1990 when he attended [School 1] as an international student from [Country 1]. [The applicant] attended [the school] from 1990 to [year]. [The applicant] was [age] years of age when he commenced. I was [involved with School 1] at this time. [School 1] helped to develop [the applicant]’s character during his formative years and helped him to continue his Christian values during the time he spent in Australia. [The applicant] was a disciplined, respectful and productive student over the 3 years he attended [School 1] including the period where he was a boarder.”
Another letter is submitted from [Mr G], the Associate Minister of [Church 1] is cited which confirms that the applicant’s continuous commitment to the Christian faith.
A letter dated 2 September 2018 from a family friend, [Ms H] states:
“Australian community life depends upon friendships and family connections. Our rich diversity as a nation is one of the most special things about Australia.
My connection with the [applicant’s] family spans three decades. Initially through [the applicant’s] sister [Ms C], I have come to affectionately also embrace [the applicant] and their mother [Ms B] as lifelong friends…
[Ms B] and [the applicant] are intricately embedded in the Australian way of life, with roots in volunteering and participation in their local church, [Church 1]…
All other things aside, [the applicant] is someone you would characterise as Australian – Australia has been his home, his culture, the place he has experienced life’s highs and lows, from his teenage years to his current midlife. Today even with the significant restrictions on him, [the applicant] has carved out a meaningful existence and is capable, if permitted, of making an even greater contribution to Australia.
I write as a senior public servant – on the executive leadership team at [statutory body], member of [a specified] Board, and chair of [a named Committee] for [a specified department of Australian University 1]. I also write as an Australian who desires that our nation is a place where people thrive and are able to fully utilise their strengths, both in their work, among family and friends and in community connection…”
Another letter of 23 February 2015 from [Ms I] OAM states:
“I have been a friend of the [applicant’s] family for over thirty years and have known [the applicant] since he came to Australia as a child… [The applicant] was a quiet, polite child who always was a pleasure to welcome into our home.
Over the years my husband and I have kept in touch with [the applicant] regularly and our first impressions have been reinforced as we have seen him develop into a gentle, courteous adult… [The applicant] has lived most of his life in Australia and to me he is an Australian. He speaks only English and has the cultural knowledge and interests of one who has grown up here.”
Further letters of support from two lawyers, [Mr J] and [Ms K] were also provided to demonstrate integration into the Australian community over the course of two decades.
[Dr D’s] earlier mentioned report states:
“I also believe, despite not making a full assessment of him, that [the applicant] would not cope well with having to live independently from his mother – he would be struggling to cope on a country he doesn’t know and with people he doesn’t know. It is obvious that he would also worry about his mother and how she would cope with his absence.”
Australia is the only country that he has ever known as home. Unlike other Anglo Indians, he was not born there, nor did he grow up there, and he does not speak or understand any Indian language or dialect. He does not know any relatives, or have any friends in India. He would have to leave his support network here, and his ailing mother, to go to a country where he would have no support network and be entirely isolated.
It is submitted that the relevant legislation applicable to this complicated matter, led to an unfair and unreasonable result where the applicant may be separated from his mother and his sister after living over two decades in Australia. The applicant’s sister [Ms C]’s statutory declaration states:
“[The applicant] has considered Australia to be home for over the past two decades and it through a series of convoluted, unfortunate circumstances outside his control that he finds himself in the predicament that he is in today. I know that my mother and I could not cope if he had to leave the country and I could not cope if she followed him to India and I was left alone here. We all provide each other with a high level of support and hope that we can continue to live together here in Australia in peace.”
It is submitted that these are unique and exceptional circumstances. This is not an instance in which the applicant is attempting to “circumvent” migration legislation; it is a situation in which his, and his family’s, well-being and happiness are at substantial risk of harm. It is therefore contended that this is a case deserving of the Minister’s intervention and that the public would expect the Minister to intervene in such a case.
It was submitted this is a matter that should be favourably dealt with by the Tribunal “on the papers” and without the need for a hearing.
The following documents were submitted:
A. Copy of the applicant’s birth certificate;
B. Copy of [Ms B]’s statutory declaration dated 2 April 2015;
C. Copy of the applicant’s statutory declaration dated 2 April 2015;
D. Copy the applicant’s movement records;
E. the applicant’s statutory declaration dated 11 September 2018;
F. Copy of the applicant’s school records from [School 1];
G. [Ms C]’s statutory declaration dated 11 September 2018;
H. Copy of the applicant’s records from [Australian University 2];
I. Copy of the applicant’s [academic qualifications attained] in [Country 2];
J. Copy of ICSE Case Notes;
K. Copy of [Ms C]’s Citizenship Certificate;
L. Copy of the Department’s Decision Record dated 14 June 2016;
M. Copy of correspondence with the Australian High Commission;
N. [Ms B]’s statutory declaration dated 11 September 2018;
O. Copy of [Ms B]’s movement records;
P. Copy of email from [Ms B] to the Australian High Commission dated 28 July 2001;
Q. Copy of correspondence between [Ms B] and the Australian High Commission;
R. Copy of statutory declaration by [Ms B] dated 3 October 2003;
S. Copy of letter dated 2 October 2003 from [a named person];
T. Copy of letter dated 15 July 2002 from [Ms B];
U. DIMIA Correspondence 1;
V. DIMIA Correspondence 2;
W. Support letters from extended family members being [Mr E], [and various others];
X. Letter (undated) from [a named person] of [City 2] Cricket Club;
Y. Letter from [a named person] of [an organisation] and copy of Certificate of Appreciation from [a named person];
Z. Letter dated 14 August 2018 from [a treating doctor];
AA. Report by [Dr D] dated 13 September 2018.
BB. Letter dated 2 March 2015 from [Mr F], [an official] of [City 2] in 2015;
CC. Letter (undated) from [Mr G], Associate Minister of [Church 1];
DD. Letter dated 2 September 2018 from [Ms H];
EE. Letter dated 23 February 2015 from [Ms I] (OAM);
FF. Support letters from [Mr J] and [Ms K]; and
Analysis
I have examined the applicant’s claim for protection. I am 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. Therefore, the applicant is not a refugee as defined in the Act and the criterion in paragraph 36(2)(a) of the Act is not satisfied for this reason.
Further I find that there are no grounds for believing that, as a necessary and foreseeable consequence of being removed to India, there is a real risk the applicant will suffer significant harm as required by s36(2)(aa) of the Act. Therefore, the applicant is not a person in respect of whom Australia has protection obligations as outlined in paragraph 36(2)(aa) of the Act.
No claims about the applicant being unable to return to India as he does not know the language and is not familiar with the culture were substantiated, nor were his claims that he will not being able to find employment, does not have any relatives in India to support him as his mother and sister live in Australia and the social welfare in India is inadequate.
The applicant could not substantiate his claims his abusive father lives in India and he fears meeting him, having said to the Tribunal that he did not know where his father was.
The applicant’s claim that the Indian authorities are often ineffective when it comes to support for domestic abuse victims was not substantiated and the Tribunal observes that the applicant is a man in his [age], who would be unlikely to reside in a domestic setting with his father.
The applicant claimed he is not able to relocate within India as he does not know the language, has no relatives, is unable to find employment and is unfamiliar with the culture. However there was no link made with how this constitutes persecution or a real chance of serious harm.
The applicant acknowledged in a written submission to the Tribunal that he does not meet the requirements for the grant of a Protection (subclass 866) visa. This acknowledgement was explicitly repeated in the hearing.
No arguments were advanced before, during or after the hearing that the applicant meets the requirements for a protection visa. I have examined the DFAT country report for India of 18 October 2018 as relevant country information as required and I do not identify any information in that report or in any other country information that supports the concept of the applicant meeting the criteria for a protection visa.
The Tribunal elected not to make a decision on the papers despite the request of the applicant to do so. The Tribunal wished to meet the applicant in person and question him and the witnesses he brought.

I find that the applicant was consistent in his oral evidence, as were the witnesses [Ms B] and [Ms I].
The applicant is in the unusual position of having lived in Australia for decades, being integrated into the community as a law-abiding and even exemplary person, having his mother and sister both made Australian citizens, and yet remaining without a normalised immigration status. This has occurred despite sincere efforts on his part and that of his family to do so.
I find that there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit where at least one member of the family is an Australian citizen or Australian permanent resident.
I find the applicant has had a long length of time in Australia, for the better part of two decades. The formative period of his secondary school and university years were spent in Australia.
From the glowing references and remarks made by declarants and witnesses and the applicant’s straightforward evidence in the hearing I find the applicant is held in high esteem by those who know him, and is law-abiding. He was worked in Australia, has not sought unwarranted benefits from Australian society and appears to have paid his taxes. He is involved a faith community and contributes to society. He plays a caring role for his mother who is an older lady with considerable health challenges. If he could not perform these duties they might have ultimately to taken up by the state. From [Ms I]’s evidence I conclude that the applicant does a great amount to support his mother who needs a good deal of physical care.
I find the applicant to be highly integrated into the Australian community, and could be taken by the casual observer to be a regular or even typical Australian.
His being removed from Australia through the application of relevant legislation would lead to unfair or unreasonable results in a particular case in the view of the Tribunal based on the extensive evidence before it.
The applicant’s family have endured separation from one another, and an abusive situation in their former household in [Country 1]. Though great effort they relocated at different stages to Australia and remain close and supportive.
From questioning the applicant, I am left with the impression of a vulnerable person, who despite his fighting qualities needs support around him more than most.
I find that the applicant was unlawful in Australia 15 March 2002. He and his family made a number of attempts to resolve his status. For reasons that are not entirely clear the applicant’s mother did not know that she might have been able to include the applicant in her application for a Contributory Parent visa. From the oral evidence I conclude that the parties were not well advised at that time.
Even on 18 October 2005 the applicant was in fact still listed as a dependent on his father’s visa application. Correspondence to the department from the applicant’s father dated 25 October 2005 stated that the applicant was not a dependant any more as he was employed and [age] years old. The father asked the department to withdraw him from the application unbeknownst to the applicant. The applicant remained on the application until 12 June 2006 when the application was refused on 12 June 2006 because the applicant’s father [Mr A] failed to provide a new sponsorship form signed by the applicant’s mother [Ms C].
I accept that the applicant was under the impression that he could resolve his status through successfully by remaining attached to the earlier parent visa sponsored by his sister [Ms C]. I find that he believed that his father would not remove him from such an application because of blood ties.
There was a period where the parties in the early 2000s appeared frozen because the applicant’s mother would eventually divorce her abusive husband but for a variety of understandable reasons did not want to instigate or precipitate the divorce.
I find the applicant was caught in this dilemma and then was unfortunately left off a later successful application of his mother. In hindsight this was a fateful mistake but appears to have been made in good faith.
I find the applicant honestly sought better professional advice in the form of an acknowledged professional law firm specialising in migration matters, a firm which now acts for him. This occurred at his own instigation in 2015, and was not done as a result of encounters with the department or other authorities. He acted in good faith by taking this step.
The Tribunal was impressed by the evidence of both witnesses, [Ms B] and [Ms I]. They corroborated the applicant’s version of events and they impressed upon the Tribunal the bona fides of the applicant and his pressing need to care for his mother. The applicant’s mother clearly has a psychological diagnosis that makes her vulnerable, and is reliant on care from her son and other family members. A good deal of harm would be caused to the applicant and his family if he were removed.
It is also difficult to contemplate how the applicant would cope with being returned to India – he was not born in India, does not speak any Indian language and has virtually no connection with India. His employment prospects would be minimal, judging by his less skilled employment experience in Australia, and he would struggle to be assisted by government in what is still a developing country. [Dr D’s] remarks that despite not making a full assessment of him, the applicant would not cope well with having to live independently from his mother – he would be struggling to cope in a country he does not know. I am inclined to agree with this judgment. I do not have any indication of wider family being able to support him there. The family are not people of means in any event. He does not appear to have a right to go to his former home in [Country 1] nor does he have the right to live anywhere else.
I find that the public interest would not be served if the applicant were removed from Australia.
Recommendation
This matter should be referred to the Minister for Home Affairs (the Minister) with a recommendation that, pursuant to section 417 of the Migration Act 1958, the Minister intervene on public interest grounds to grant him a permanent residence visa.
Decision for protection application
In regards to the protection application, 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).
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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Justin Meyer
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.
…

[2019] AATA 3605

18 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal