1609870 (Refugee)
[2019] AATA 6212
•23 August 2019
1609870 (Refugee) [2019] AATA 6212 (23 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1609870
COUNTRY OF REFERENCE: India
MEMBER:Jason Pennell
DATE:23 August 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 23 August 2019 at 1.06pm
CATCHWORDS
REFUGEE – protection visa – India – social group – property dispute – inheritance – fear of harm from Uncle – no evidence provided regarding inheritance – mental health – unsatisfactory IELTS – fear of losing friends – no fear arising from property dispute – Ministerial intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Subramanium v MIMA (1998) VG310 of 1997
Zhang v RRT & Anor [1997] FCA 423
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 3 June 2016 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 3 July 2015. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.
The applicant was represented in relation to the review by his registered migration agent.
By a letter dated 11 June 2019 the Tribunal invited the applicant to attend a hearing of his application for review on 16 July 2019 at 10.30am. By a notice dated 8 July 2019 the applicant advised the tribunal that he waived his entitlement to a Tribunal hearing in relation to his application for review. The Tribunal, having reviewed the applicant’s application for review and in light of the notice received by the applicant, has exercised its discretion to determine the matter on the information and material currently before it.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the 'refugee' criterion, or on other 'complementary protection' grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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 themselves of the protection of that country.[1] 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[2].
[1] s.5H(1)(a) of the Migration Act 1958
[2] s.5H(1)(b) of the Migration Act 1958
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.
An applicant is considered not to be at a real risk of suffering significant harm in a country if:
·it is reasonable for the applicant to relocate to different area of that country where there is no real risk that the applicant will suffer significant harm;[3] or
·the Tribunal is satisfied that the applicant could obtain protection from an authority of that country such that there would not be a real risk that the applicant would suffer significant harm. That is, the level of protection must be such that the risk that the applicant will suffer significant harm is something less than a 'real risk.'[4]
[3] Migration Act 1958 s36(2B)(a) . SZATV v MIAC (2007) 233 CLR 18; SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
[4] Migration Act 1958 36(2B)(b) MIAC v MZYYL [2012] FCAFC 147.
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.
THE APPLICANT’S IDENTITY AND CLAIMS
The issue in this case is whether the applicant meet the criteria set out in either of s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicants’ migration history
According to the delegates decision dated 22 June 2016[5] the applicant’s migration history is as follows:
[5]AAT File No1610404 @ f.17
[In] March 2007 The applicant arrived in Australia on a Vocational Education and Training Sector (TU‑572) visa. 16 March 2009 The applicant applied for a Temporary Graduate (VC-485) visa 24 May 2010 The applicant was granted a Temporary Graduate (VC-485) visa [In] November 2010 The applicant departed Australia [In] December 2010 The applicant returned to Australia 24 November 2011 The applicant’s VC-485 visa ceased and he became an unlawful non-citizen. 6 July 2015 The applicant applied for a Protection (XA-866) visa 6 July 2015
The applicant was granted a Bridging (WC-030) visa on, with no work rights, which is still in effect.
6 June 2016 The applicant’s Protection visa application was refused
Case history
The applicant’s history before the Tribunal is as follows:
1 July 2016
The application for review was lodged by the applicant with the Tribunal
28 March 2018
The case was listed for hearing before the Tribunal
27 March 2018
The applicant advised that he would like to waive his right to a hearing and that it was his intention to make a request for Ministerial intervention (MI). The representative requested the member hold on their decision until a psychologist’s report was submitted.
23 April 2018
A medical report together with the applicant’s submissions were received by the Tribunal
13 June 2019
The applicant was invited to a hearing before the Tribunal on 16 July 2019
8 July 2019
Applicant made a Freedom of Information (FOI) request.
8 July 2019
The applicant advised the Tribunal that he waived his right to a hearing
Country of Reference
The applicant claims to be citizen of the Republic of India. The applicant provided the Department and the Tribunal with his Indian passport,[6] a copy of which has been placed on the Department and the AAT files. Accordingly, based on the documentation provided to the Department, the Tribunal accepts and finds that the applicant was born on [date] in Patiala, India[7] and that he is a citizen of the Republic of India.
[6] Passport, Department file, [deleted], f. 56.
[7] Form 866C, Department file, [deleted], ff. 8-20.
There is no evidence to suggest that he has a right to enter and reside, whether temporarily or permanently, in any other country. Therefore, based on the applicant’s passport, the Tribunal finds that he is an Indian citizen and accordingly the applicant’s protection claim will be assessed against India as the country of reference and as the 'receiving country'.
The Tribunal is therefore satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that he is not excluded from Australia's protection obligations under s36(3).
The applicant’s protection claims
The applicant’s claims for protection are expressed in his protection visa application, dated 6 July 2015, as follows:[8]
[8] Form 866C dated 6 July 2015 @ questions 90-97; Department File [deleted] @ ff.9-10
Why did you leave that country(s)?
‘I left that country because I use to live in a joint family and there’s always fights between my father and his brother due to the property rights so my father told to stay away from all this mess and send me here while I was there I fear threatened and been in fight with my uncle and my grandfather pass away in 2009 after that it’s been more serious.’
What do you think will happen to you if you return to that country(s)?
‘After my grandfather passed away my father got most of the right to property coz he was the oldest son and my uncles are not happy from that and I am the only son to my dad so to get the property rights they can harm me as I been threatened before and it can get ugly.’
Did you experience harm in that country(s)?
‘I have been attacked few times when I was there by my uncle and his son I am very scared since my grandfather passed away.’
Did you seek help within that country(s) after the harm?
‘Yes. Yes I and my family seeked help from police but my uncle got lot of contacts in politics there so we didn’t get much help from them they told us to solve family matters between family, which is not good for us.’
Did you move, or try to move, to another part of that country(s) to seek safety?
‘No. Because it was all happening because the property from my granther and we didn’t want to leave property without any guardian.’
Do you think you will be harmed or mistreated if you return to that country(s)?
‘Yes. As I’ve been attacked before but since my grandfather passed away the can do anything to get that property and its not only gonna be fight with hand anything can happen that’s why I am very scared and my parents don’t want me to get involved in all this.’
Do you think the authorities of that country(s) countries can and will protect you if you go back?
‘No. We seeked help from police before and we didn’t get any help because my uncles link in politics.’
Do you think you would be able to relocate within that country(s)?
‘No. I won’t be able to relocate there because my father and I got rights on property which is not gonna get solved easy it’s been going on from very long time If I go back anything can happen to me it’s a big threat for me.’
The applicant’s claims are also summarised in the delegate’s decision dated 3 June 2016 as follows:
a) The applicant left India because he used to live in a property shared with his uncle’s family. His father was always fighting with his uncle over property rights.
b) While the applicant was there he was threatened and has been in fights with his uncle.
c) The situation became worse in 2009 when his grandfather passed away
d) After his grandfather passed away his father gained most of the property as he was the eldest son and his uncles were not happy about it
e) He is an only son and therefore a target for his uncles
f) They went to the police who didn’t help because his uncle has contacts in politics
g) They didn't move from the property as it belongs to them
The Applicant’s evidence.
By his application for a protection visa the applicant claims that he was born on [date] in Patiala, India[9] and that he is a citizen of the Republic of India. The applicant states that he speaks, reads and writes English, Hindi and Punjabi.[10]
[9] Form 866C, Department file, [deleted], ff. 8-20.
[10] Form 866C, Department file, [deleted], f. 19.
The applicant states that his father and mother continue to live in Patiala, India and that he has a sister who was born on [date]. However, the applicant does not provide any information as to where she was born or where she now lives.
Despite claiming that at the time of his application he was unemployed and noting that the applicant was granted a Bridging visa without any work rights, the applicant claims that he has been working [in Occupation 1] since ‘2009 to current’ in his application.[11] The applicant has previously completed [Course 1], graduating January 2009.[12]
[11] Form 866C, Department file, [deleted], f. 27
[12] Ibid, ff. 12-13. AAT file, 1609870 @ f.45
By the applicant’s submission dated 23 April 2018, the applicant claims that he arrived in Australia at the age of [age] years of age to study [Course 1]. He states that he made his choice to study in Australia as a means to better his and his family’s lives. The applicant obtained a [qualification], followed by [another qualification].
On 24 May 2010 the applicant was granted a Skilled Graduate (subclass 485) visa.
The applicant claims that while he was studying he obtained part time employment working in a [business] and enjoying his experiences studying and [working]. He planned to obtain permanent employment and eventually apply for a Skilled visa.[13] The Tribunal accepts the applicant’s evidence in relation to his studies in [Course 1] and intention for permanent employment in Australia. It indicates to the Tribunal that the applicant’s real intention upon his arrival in Australia was to complete his course and to remain in Australia without any intention of returning. Nevertheless the applicant states that he was unable to obtain a satisfactory IELTS result by failing to achieve the required score in the written component on the test.
[13] Applicant’s submission dated 23 April 2018 @ p.2
The applicant claims that his inability to obtain a satisfactory IELTS result and full time employment had a devastating effect on him emotionally. However, there does not seem to be any rational reason for his alleged emotional breakdown as he would have known that it was always a condition of his student visa that upon completion of his course he was required to return to India.
Rather than retuning to India, the applicant remained in Australia beyond the expiry of his Student visa in search of fulltime employment. The applicant claims that he was unaware that his visa had expired while he continued to search for full time employment. However, in his application for a protection visa, the applicant states that he has been working in [Occupation 1] since 2009, almost two years prior to his visa being cancelled. Nevertheless, the applicant claims that his significant anxiety and depression was exacerbated by the realisation that he had become unlawful. The applicant states that he felt paralysed and could not take steps to rectify his status.
The applicant states that he is embarrassed and ashamed of his actions that the he experiences fear and anxiety at the thought of returning to India with nothing to show for his time spent in Australia studying and working. He states that he has been in Australia for 11 years and now considers it his home. [14]
Delay
[14] Applicant’s submissions dated 23 April 2018; AAT file 1609870, ff. 44-46.
Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[15] Even a three month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution.[16]
[15] Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.
[16] Subramanium v MIMA (1998) VG310 of 1997.
In this case, the applicant arrived [in] March 2007 on a Vocational Education and Training Sector (TU‑572) visa and became unlawful on 24 November 2011. The applicant has offered no reasonable explanation for the delay in making his application for protection. From the applicant’s evidence it seems that his claim relating to a property dispute with his uncle was evident and real at the time he entered into Australia and had escalated in 2009, prior to the applicant becoming an unlawful non-citizen. The applicant did not make any application for protection prior to 6 July 2015. In such circumstances there seems to be no reasonable explanation for the delay in making his application for protection.
Accordingly, given the extensive delay of approximately eight years in making his application for a protection visa, the Tribunal has given some weight to this consideration against the applicant in arriving at its decision in its review of the delegate’s decision.
COUNTRY INFORMATION
Along with other publications, the Tribunal has considered the reports into India and Punjab prepared by the Department of Foreign Affairs and Trade. In particular, it has considered the DFAT Country Information Report India dated 17 October 2018 (‘the DFAT Report’) and the DFAT Thematic Report India State of Punjab dated 12 October 2018 (‘the DFAT Report (Punjab)’).
Health[17]
[17] The DFAT Report @ p.8
2.16 India’s health system faces a number of challenges including a diverse health profile, an acute shortage of infrastructure and lack of skilled health sector workers. A large disparity exists between the services and health outcomes of each state and between urban and rural areas. Low public health investment has led to heavy reliance on a weakly regulated private sector. With the majority of health care expenditure in the private sector, a large proportion of the population is vulnerable to poverty in the event of catastrophic illness. Total spending on health was 4.7 per cent of GDP in 2014, about half the total expenditure of Australia, according to the WHO. Government expenditure on health in the same period was just 1.13 per cent of GDP. Nevertheless, according to the World Health Organisation (WHO), India’s health indicators and government per capita spending on health have improved steadily in the past two decades. Life expectancy is 67 for males and 70 for females. According to the United Nations Children’s Fund (UNICEF), the under-five mortality rate is 43 deaths per 1,000 live births.
2.17 Since 2017, the Indian government has turned its attention to increasing health spending, improving the availability and efficiency of services and allowing individual states (which are responsible for health care delivery) more autonomy to implement health programs. In its new National Health Policy 2017, the government set a goal of increasing public health spending to 2.5 per cent by 2025. More recently, the government launched a revamped national insurance scheme, Ayushman Bharat, and a program to improve the primary health care system, as part of a commitment to move India towards universal health care. The scheme incorporates state-run schemes and an existing national scheme, and aims to provide coverage of up to USD 10,000 for over 100 million lower income families.
Mental Health
2.18 Access to mental health care is difficult and patients are subject to stigma and discrimination. Recently, the government has begun to take positive steps to address this issue. Parliament passed the Mental Health Care Act (2017), and it came into effect on 7 July 2017. This Act rescinds the previous Mental Healthcare Act (1987), which had been widely criticized for not recognizing patient rights. The new Act defines mental illness as ‘a substantial disorder of thinking, mood, perception, orientation, or memory that grossly impairs judgment or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs.’ The Act also repealed section 309 of the Penal Code (1860), which criminalised attempted suicide by a mentally ill person.
2.19 Access to mental health care is not uniform across the country, with availability significantly more limited in rural areas compared to urban cities and large towns. This reflects the situation for access to general health care. In practice, mental health programs suffer from severe constraints in technical, human and material resources, and remain a low priority on the public health agenda.
2.20 According to the National Mental Health Survey, conducted by the National Institute of Mental Health and Neuro Sciences in 2015-16, many drugs identified as critical in mental health care were not continuously available at most of the facilities surveyed in 12 districts.
Police in Punjab[18]
[18] DFAT Report (Punjab) @ p.20
5.1 The Punjab police force is a state-run force with around 76,000 personnel. Multiple credible sources—including from civil society representatives, journalists, lawyers and members of the diplomatic corps—told DFAT that Punjabi police capacity is very low, particularly in investigative capacity, and the police have a poor reputation, with high 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’ (see ‘Arbitrary Deprivation of Life’, above). There are also perceptions of political interference in policing, with reports of large scale movement of senior officers following changes in government.
5.2 Several credible sources told DFAT of the widely held perception that police in Punjab are able to act with impunity. Under Section 197 of the Indian Criminal Procedure Code 1973, no judge, magistrate or public servant (including police officers) can be convicted of an offence committed while acting in their official capacity without the permission of the relevant government—in the case of the Punjab Police Force, the ‘relevant government’ being the state government. Permission for a police officer to be convicted is rarely given, particularly when the person in question is a senior officer. As a result, few senior police have been convicted of crimes committed during the period of separatist militancy in Punjab.
5.3 Progress on police reform has been slow. The Punjab Police Act 2007 has reportedly had little impact in changing police culture or implementing structural reforms. Secondary legislation in the form of a guide to policing has been developed but not yet introduced. Police service delivery has improved in some areas, including by the introduction of community policing programs. Some police investigative training has also been conducted, including training run by the UK, but overall capacity remains low, as does public confidence in the police.
Internal Relocation[19]
5.14Sections 19(1)(d) and (e) of the Constitution guarantee citizens the right to move freely throughout the territory of India and the right to reside and settle in any part of the territory of India, subject to reasonable restrictions in the interests of the sovereignty and integrity of India and the security of the state. The interpretation of ‘reasonable restrictions’ is left to the government and courts. It enables laws and regulations that can restrict movement (for example, where there is unrest or in some border areas) and residence (non-residents cannot buy land in Jammu and Kashmir or in Uttarakhand).
5.15 India’s internal migration flows are substantial. Migration data from the 2011 census has been collected, but not yet released. The 2001 census recorded an estimated 307 million internal migrants in India, defining as a migrant anyone who lived in a place different to their place of birth or place of last residence. This figure represents approximately 30 per cent of India’s total population. The numbers may include people who had moved over very short distances within the same district, and may have missed a significant number of seasonal migrants, many of whom work in the informal sector without papers.
Limits to internal relocation
5.16 Several factors may limit options for internal relocation. These include language barriers, a lack of documentation, lack of familial or community networks, lack of financial resources and employment opportunities, and discrimination based on ethnicity, religion, caste or gender.
5.17 India is a multi-lingual and multi-ethnic nation. Language barriers prevent internal migrants from obtaining access to health or educational opportunities. Bilingual or multilingual internal migrants have better opportunities for internal relocation.
5.18 A lack of identity documents and proof of local residence can restrict internal migrants’ access to public services and social security programs or even banking facilities. As a result, they often face barriers in obtaining subsidised food, housing and banking services until they can establish identity and local residence. Ethnic, religious or caste identity may lead to anti-migrant sentiment and limit options for internal relocation. Requirements to provide details of a husband’s or father’s name can exclude single women, women with children and domestic violence survivors from government services and accommodation.
5.19 DFAT assesses that individuals seeking protection from discrimination or violence have a wide range of viable internal relocation options, although these may be more limited for some individuals depending on their personal circumstances.
CONSIDERATION OF CLAIMS AND EVIDENCE
[19] DFAT Report @ p.27
Credibility
When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[20]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[21]
[20] s.5AAA Migration Act 1958.
[21] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[22] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
[22] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482
If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[23] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
Accepted Facts
[23] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196
Based on the evidence provided by the applicant, the Tribunal accepts and finds that:
a)The applicant was born on [date] in Patiala, India[24]
b)The applicant is a citizen of the Republic of India.
c)The applicant speaks, reads and writes English, Hindi and Punjabi.[25]
d)The applicant’s Father and Mother continue to live in Patiala, India and that he has a sister who was born on [date].
e)The applicant has been working [in Occupation 1] since 2009.[26]
f)The applicant completed [Course 1], graduating January 2009.[27]
[24] Form 866C, Department file, [deleted], ff. 8-20.
[25] Form 866C, Department file, [deleted], f. 19.
[26] Form 866C, Department file, [deleted], f. 27
[27] Ibid, ff. 12-13. AAT file, 1609870 @ f.45
Applicant’s Refugee Claims
Relevant Grounds
The applicant did not specifically identify how his claim falls within the scope of s.5J(1) of the Act. However, it was open to the applicant to claim that, as a result of his fear of persecution by his uncle as a result of a family property dispute, he falls within ss.5J(1), 5K and 5L of the Act by reason of being a member of a particular social group.
Pursuant to s.5L of the Act, it is necessary that as a result of the applicant’s membership of a social group that he shares a certain characteristic or element which is innate or immutable and so fundamental to the identity or conscience of the members of the particular group that it distinguishes the group apart from society at large.[28] In addition, pursuant to s.5K of the Act, where a person claims that they are persecuted by reason of their membership of a particular social group that consists of their family, the fear of persecution or persecution that any other member or former member (dead or alive) of the family has ever experienced, if the fear of persecution is not a reason mentioned in s.5J(1)(a) of the Act, is to be disregarded.[29]
[28] Section 5L of the Act
[29] Section 5K of the Act.
In this case, the applicant claims that as the only son in his family he is to inherit the property. As a result, as the only son, he fears harm from his uncle as a result of a property dispute between his family and his uncle’s family. Accordingly, it is open to the applicant to claim that he is a member of a particular social group as a family member who fears persecution by his uncle and specifically as the only son of that family. While the Tribunal is not totally convinced that the state in India would refuse to protect the applicant against the uncle’s actions, for the purposes of these reasons, the Tribunal is prepared to accept that the applicant is part of a particular social group and as such falls within the scope of s.5J(1) of the Act.
Applicant’s well-founded fear
In Chan v MIEA[30] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[31]
[30] (1989) 169 CLR 379 at 396.
[31] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case, based on the evidence of the applicant, the Tribunal accepts that the applicant has a subjective fear of being harmed in the event that he returns to India.
However, to hold a ‘well found fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J[32] stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.’
[32] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397
In MIEA v Guo, the Court stated that: [33]
‘Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’
[33] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.
Accordingly, the applicant’s claim that he is a person who has a well-founded fear of persecution, pursuant to s.5J(1) of the Act by reason of his membership of a particular social group as a result of a property dispute between his family and his uncle’s family.
Based on the applicant’s claims, the Tribunal accepts the applicant has a subjective fear of being persecuted for a reason mentioned in s.5J(1) of the Act. However, as detailed in these reasons, the Tribunal finds that on an objective basis there is no real chance the applicant will suffer serious harm in the event he returns to India.
The Applicant’s Property Dispute
The applicant claims that he lived in a property shared with his family and his uncle’s family and that his father and uncle were continually fighting over their respective rights to the property. The applicant claims that after his grandfather’s death in 2009 the situation between his father and uncle became worse.
Property disputes are a common occurrence in India. Since greed is a great leveller, wars over wealth take place across the strata, from low-income households to ultrarich families. Even an iron-clad will may be challenged by unhappy beneficiaries. It is reported that the most obvious solution for most squabbling relatives is to take the matter to the courts.[34]
[34] ‘Property disputes: Family settlement better option than approaching a court’ by Sakina Babwani >
However, that is a time-consuming, tedious and expensive process, which in no way guarantees a satisfactory resolution. It is reported that there are examples of property disputes that have taken decades to get resolved,[35] including one case in New Delhi in which it took 30 years to be finally disposed of by the courts.[36] It is reported that in January 2018, the Rajasthan High Court finally disposed of a 59 year old land dispute. The case was considered to be the longest unsolved civil matter of the country. Three generations of the litigating family passed away during the proceedings in the case.
[35] NAYA DISHA ‘Six Property Disputes that Show Snail’s Pace of Justice in India’
[36] Ibid
The applicant did not claim and there was no evidence that any court proceedings had been issued in relation to the property.
Despite claiming that he and his father have right in relation to the property, the applicant did not provide any details of the property. For example no ‘Patta’[37] or title of the property was provided to the Tribunal. There was no evidence before the Tribunal as to the identity, location and ownership of the property.
[37] A Patta is a crucial document which tells about the ownership of a particular property.
In addition, despite claiming that his uncle and father were in a dispute over the property, the applicant did not provide any supporting evidence of the dispute between his father and uncle. In particular, no evidence was provided as to the nature of the uncle’s claim on the property. For example no court document, police report or statement by any member of the applicant’s family evidencing the dispute was provided to the Tribunal.
The applicant arrived in Australia in 2007 and returned to India briefly from [November] 2010 to [December] 2010.The applicant claims that as the only son in his family he is the person who will inherit the property. As a result, he says that was attacked a ‘few times’ by his uncle and his son. The applicant appears to claim that he was attacked during his visit to India in 2010. However, the applicant did not provide any evidence of such attacks. There was no evidence as to where and when the alleged attacks occurred or in what circumstances. In addition, there was no evidence of the applicant having been injured during the attacks as claimed.
The Tribunal notes the contents of the Psychological Report by [Dr A] dated [April] 2018 (‘the report’) which records the applicant’s account for his claimed mental health condition. The report notes that the applicant recounted that he had missed a number of significant events in India such as his grandfather’s funeral, his sister’s wedding and the birth of her child and that he had not seen his parents for eight years. The report records the applicant as saying that he didn’t do anything about going back because he was in fear of going back and losing everything.[38] The applicant does not mention any fear of returning to India due to the property dispute or any fear of being harmed by his uncle. Rather, the fear expressed by the applicant in the report refers to the fact that he feared ‘losing the things and friends’ in Australia, which he claimed had become like family[39], rather any fear of arising for the property dispute as claimed.
[38] [Dr A] dated [April] 2018 @ p.2; AAT file No 1609870 @ f.42
[39] ibid
In addition, the applicant claims that the police were called in relation to the attacks but did nothing due to his uncle’s political influence. The applicant did not provide any evidence in relation to the police having been called in response to the attacks. In addition, there is no evidence that his uncle held any political position by which it may be suggested that he could influence the police in such circumstances. As such, the Tribunal does not accept the applicant’s claim and finds that the applicant’s uncle did not hold any political influence as claimed.
Therefore, given the lack of evidence in support of the applicant’s claim the Tribunal does not accept that his father or uncle were in dispute in relation over a property in India. As a result, the Tribunal does not accept the applicant’s evidence and finds that he was not attacked by his uncle and son and consequently finds that the police were not called in response to the attacks and that the applicant’s uncle did not have any influence over the police as claimed.
Accordingly, the Tribunal does not accept the applicant’s evidence that as the son he was threatened by his uncle as a result of property dispute. As a result, it finds that there is no real chance that the applicant will suffer serious harm by his uncle or his uncle’s family in the event he returns to India as a result of a property dispute between his father and his uncle.
Applicant’s Mental Health
The applicant claims that as a result of his medical conditions there is a real chance he will suffer serious harm in the event that he is returned to India, and that they will become more debilitating if he forced to return to India. The applicant claimed that he is suffering from severe depression and anxiety. As a result, the applicant claims that in the event he is returned to India there is a real chance that he will suffer serious harm by reason of his mental illness. The applicant provided the report in support of his claimed mental health condition. Based on the report, the Tribunal accepts that the applicant suffers from major depressive disorder and panic disorder.
The report notes that the applicant recounted that he arrived in Australia on a student visa. The applicant recounted that he undertook an International English Language Testing System (IELTS) exam in which there are four modules and that in order to pass a person must score seven or above to become a permanent resident. The applicant states that he failed the writing section, having scored five and a half. The applicant recounted that when his visa came to an end he got ‘scared and depressed’ and that he had ‘a lot of sleepless nights’. He said that he was scared and just wanted things to go the way they were going. In addition, as referred to above, the applicant expressed that he feared ‘losing the things and friends’ in Australia,[40] and did not refer to any fear arising from the property dispute as claimed.
[40] ibid
Therefore, it appears from the report that his depression and anxiety is derived not from any fear of returning to India arising from a property dispute as claimed but rather from having failed the IELTS and having failed to obtain permanent residence status in Australia.
The Tribunal notes that, despite the applicant claiming that he become anxious and depressed when failing to pass the IELTS in 2010, he was able to continue to work, at least up until the time that he made his protection visa application in 2015. The applicant states in his application that he has been working [in Occupation 1] from ‘2009 to current’. In addition, in the report it notes that the applicant started suffering panic attacks in 2015 when Immigration called on him at work.[41] It is understandable that the applicant may experience anxiety and panic attacks as a result of him having been identified by the Department as an unlawful non-citizen, particularly after being in Australia for such a long period of time. Nevertheless, any depression or anxiety he claims to have suffered has not prevented the applicant from working for much of the period that he remained an unlawful non-citizen in Australia. That is, it has not been so severe as to have prevented him for continuing to work.
[41] [Dr A] dated [April] 2018 @ p.6; AAT file No 1609870 @ f.41
In the report, the applicant claims that he identifies himself as an Australia and that he has become disconnected from his place of birth.[42] It’s noted that in the report he does not claim any fear of returning to India as a result of threats from his uncle as claimed. In fact it was the applicant’s submission that he is embarrassed and ashamed of his actions that the he experiences fear and anxiety at the thought of returning to India with nothing to show for his time spent in Australia studying and working.
[42] Op cit @ P.7; AAT file No 1609870 @ f.40
While Punjab has better health outcomes in a number of key areas compared with other states in India[43] the Tribunal accepts that access to mental health care in India is difficult with patients suffering from a degree of societal discrimination.[44] However, there is no suggestion in the available country information that any social discrimination that the applicant may suffer as a result of his mental condition would constitute serious harm. In addition, there is no evidence that the applicant will suffer significant physical ill-treatment in the event he returns to India. There is no evidence that he will be denied medical care in India or that he would be unable to access health care in India at the same rate as other citizens. Accordingly, the Tribunal finds that there is no real chance the applicant will be seriously harmed by reason of his mental condition in the event he is returned to India.
[43] The DFAT Report (Punjab) @p.7
[44] The DFAT Report @ p.8
Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Act for the reasons mentioned in s.5J(1)(a) and 5J(1)(b). Therefore the applicant does not satisfy the criterion set out in 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).
Complementary protection
In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. In this case, the Tribunal has found that the applicant is a national of India and the Tribunal therefore finds that India is the ‘receiving country’ for these purposes.
The applicant claims that he satisfies the requirements under s.36(2)(aa) by reason that he faces a real risk of significant harm including deprivation of life, torture, cruel, inhuman and degrading and treatment or punishment. The applicant claims that he has been threatened and attacked by his uncle and his uncle’s son by reason of a family dispute over a particular property.
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[45] The Tribunal has made earlier findings that the applicant does not face a real chance of serious harm arising from the applicant’s claims. As the ‘real risk’ test is the same as the ‘real chance’ standard, for the reasons stated above in relation to each of the applicant’s claims, the Tribunal does not accept that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia.
[45] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].
It therefore follows that, for the reasons expressed above, the Tribunal does not accept the applicant’s evidence in relation to the alleged threats by his uncle in relation to the property dispute and finds that there is no real risk that the applicant will suffer significant harm in India.
In addition, the applicant made a claim that there is a real risk that he will suffer significant harm as a result of his mental condition. The applicant relied on the Psychological Report by [Dr A] dated [April] 2018 in support of his mental health claim. For the reasons detailed above, the Tribunal has found that the applicant’s mental health condition arises as a result of his failure to pass the IELTS and obtain permanent residence in Australia and not as a result of any fear of his uncle arising out of any property dispute. The applicant stated that he is embarrassed and ashamed of his actions and that he experiences fear and anxiety at the thought of returning to India with nothing to show for his time spent in Australia studying and working. While the Tribunal accepts that the applicant does suffer from depression and anxiety as claimed it notes that it has not prevented him for working while in Australia. While the Tribunal accepts that mental health services are poor in India there is no evidence that he will be denied such services upon his return and accordingly suffer significant harm pursuant to section 36(2A) of the Act. As such, the Tribunal finds that there is no real risk of the applicant suffering significant herm in the event that he is returned to India by reason of his mental health.
At no stage did the applicant advance any other reason in his written or oral claims that the applicant is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.
Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk he will suffer significant harm as required by s36(2)(aa).
The applicant has urged the Tribunal to refer his matter to the Minister for Ministerial Intervention on the basis that his case is unique and exceptional in accordance with the Ministerial guidelines. However, due to the fact that Tribunal has found that the applicant does not have a real chance or real risk of serious or significant harm it does not accept that the applicant matter is unique or exceptional as claimed by the applicant and finds accordingly. As such, the Tribunal will not refer the applicant’s matter to the Minister.
CONCLUSION
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) the Act.
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 ss.36(2)(b) or (c) on the basis of being a member of the same family unit as a person who satisfies ss.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.
Jason Pennell
Senior Member
By Manan Seth , February 11, 2018,
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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