1609873 (Refugee)

1609873 (Refugee) [2018] AATA 4610 (18 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1609873
COUNTRY OF REFERENCE:                  India
MEMBER:Nicholas McGowan
DATE:18 October 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 October 2018 at 11:32am

CATCHWORDS
REFUGEE – protection visa – India – particular social group – inter caste relationship – family disapproval – claimed fear of violence – credibility issues – fabricated evidence – applicant admitted to providing incorrect information at hearing – declined the opportunity to elaborate on claims – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
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 15 June 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 15 October 2015.The delegate refused to grant the visa on the basis that the applicant will not face a real chance of serious harm if she relocates to another state in India and has no real risk of significant harm pursuant to s.36(2B)(a). That decision was provided to the Tribunal by the applicant with her review application.
The issue in this case is whether the applicant has been a reliable witness and whether the Tribunal has sufficient credible and probative evidence to be satisfied her claims are true.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
An applicant for a protection visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c) of the Act, that is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ or ‘complementary protection’ criteria, or is a member of the same family unit as such a person who holds a protection visa of the same class. In the case of persons who have a nationality, the refugee criterion is that they are outside their country of nationality and, owing to a ‘well-founded fear of persecution’, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). If a person does not meet the refugee criterion in s.36(2)(a), he or she may meet the criteria for the grant of the visa if he or she is entitled to complementary protection. The complementary protection criterion requires that 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). Additional requirements relating to the criteria are extracted at the end of 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 - Refugee Law Guidelines and PAM3 Refugee and humanitarian - Complementary Protection Guidelines. It has also taken into account the relevant country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, Country Information Report - India dated 15 July 2015, to the extent that it is relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia [in] July 2009 as the holder of a [temporary visa].
On 24 April 2012 she was refused a further stay [on her temporary visa] , a decision which was affirmed by this Tribunal (differently constituted) on 22 January 2014.
On 4 March 2014 the applicant’s associated bridging visa ceased and she became unlawful until she lodged this protection visa application and was granted an associated Bridging E visa.
The applicant told the Tribunal that she is an Indian citizen and has one brother. Her parents, who live in Punjub, paid for her to come to Australia to study. They paid around AU$5,000 as well as other costs of between AU$7,000-8,000.
The applicant and her boyfriend have been living together in Australia for the past five years.
Nationality
On the basis of the evidence before it the Tribunal finds that the applicant is a citizen of India, that India is her receiving country for the purposes of both the refugee and complementary protection criteria, and that she is outside her country of nationality for the purposes of s.5H(1)(a) of the Act.
There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Claims and Evidence
The applicant’s claims are contained in her protection visa application form and a written statement that accompanied her application form.
On 28 November 2015 the delegate wrote to the applicant giving her the opportunity to arrange an interview within seven days to discuss her claims. She did not take the opportunity to have an interview with the delegate.
The applicant attended a hearing with the Tribunal on 9 April 2018 to give evidence and present arguments. Where relevant the evidence from that hearing appears in this decision. It does not necessarily appear in the order in which it was given. She was assisted at the hearing by an interpreter in the Punjabi and English languages.
Protection Visa Application
In her application the applicant claimed that her Sikh family have disowned her due to her relationship in Australia with a non-Sikh (Hindu) boy. Her family and her boyfriend’s ‘family do not allow the relationship’ as they are from different religions and castes.
The applicant claimed if she returns to India her family may ‘house-imprison’ her and her boyfriend’s family have threatened her with ‘dire consequences if she does not end the relationship’. She claimed to know of cases where people have been killed just for falling in love with the opposite caste.
The application states that the police do not intervene and relocating in India is difficult as there are not ‘suitable avenues for livelihood’ and there are ‘over 20 languages spoken across India’.
Hearing
The applicant provided no new claims to those contained in her protection visa application. The applicant told the Tribunal she used to get on well with her parents and brother, but does not get on well with them now because the boy she wants to marry is not the same the religion. She is Sikh and her boyfriend is Hindu. She said that both her parents and his parents agree that the couple should not get married.
The applicant told the Tribunal that she does not want to return to India because if she goes back her parents will not ‘keep’ her and she does not have ‘enough education that she is able to survive on her own over there’. She claims to the Tribunal that she fears she maybe ‘house-imprisoned’ by her own parents or brother, in addition to fearing they may not ‘care’ for her, and that further, her boyfriend’s parents have warned of ‘dire consequences’ should she return to India. They feel she wishes to marry against their wishes, she claims. She would be told she cannot marry her boyfriend.
The applicant claimed she last spoke to her parents in 2015 and she has never spoken to her boyfriend’s parents. Her boyfriend last spoke to his parents a year ago when he wanted to sort of their ‘matters’, but it did not work out. The applicant was not present when he made the phone call, she claims, but when her boyfriend spoke to his parents he could not resolve their difference. The applicant told the Tribunal categorically that she has never met her boyfriend’s parents and he has never met her parents.
In response to its question, the applicant told the Tribunal that she has not spent time apart from her boyfriend even for a few days. After going through her previous claims and highlighting a period when she did in fact spend time apart from her claimed partner, the applicant was able to recall that she did go to [another city] in December 2017 to see her friend who had a baby girl (this evidence was contained in the documentation the applicant had previously provided).
The Tribunal asked the applicant where she would go to in Indian if she was required to return, but she did not have any idea. She said that even if she went to another part of India ‘how am I going to live, I do not have any savings, how am I going to survive?’
Findings and Reasons
The Tribunal has serious concerns about whether the applicant is a truthful witness. She gave inconsistent evidence on such a major matter that it significantly undermines her core claims for protection. The applicant has also declined the opportunity to provide any meaningful details about her claims despite being given a number of opportunities to do so during the public hearing.
Credibility
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[1] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[2]
[1] MIMA v Rajalingam (1999) 93 FCR 220.
[2] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The applicant gave inconsistent evidence about a matter that goes to the heart of her protection claims - the true nature of her relationship with her boyfriend’s parents. The Tribunal confirmed with the applicant that she has never met her boyfriend’s parents, though she ‘fears’ them because of their claimed ‘threats’ against her should she return to India. However, having confirmed the above knowledge of her boyfriend’s parents and her fears as articulated, the Tribunal then referred to and read aloud the applicant’s original claim signed on 14 October 2015, in which she details how her boyfriend’s parents came to Australia ‘last year’, that is, in 2014, and stayed with her and her boyfriend for ‘about a year’. Not only had the applicant met her boyfriend’s parents (and spoken with them almost daily) but they had actually lived together with the couple (living as a couple) for around and entire year, with no claim of any incident or objection whatsoever.
When this inconsistency was put to the applicant at the hearing she initially declined to respond at all, sitting silently n the Tribunal hearing room. When asked again whether the evidence she had provided was truthful, the applicant conceded it was not. Her boyfriend’s parents had lived with them for around one year. She did not make any claim of any incident or objection by his parents to the relationship. When the Tribunal asked the applicant if she had lied to the Tribunal when she said she had never met them, she admitted she had lied. The Tribunal outlined to the applicant that in circumstances where she lied to the Tribunal in her evidence it becomes increasingly difficult to make a favourable decision where it relies so heavily upon her credibility. At this point the Tribunal looked to explore how the applicant might reasonable provide any further detailed oral evidence which might assist in presenting her best case, specifically looking to further document in detail the applicant’s fears as they related to her protection claim/s. Unfortunately, the applicant declined all other invitations by this Tribunal to confirm, explain, or elaborate whatsoever on any aspect of her protection claim. The Tribunal provided numerous opportunities to allow the applicant to do so, though all were declined as the applicant refused to give further oral evidence at the public hearing.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either ‘well-founded’ or for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[3] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a 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 the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance.[4]
[3] 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
[4] Sun v MIBP [2016] FCAFC 52 at [69].
Although she was given the chance to provide details of the harm she fears, the applicant did not provide sufficient evidence to establish the claim. The applicant was offered an opportunity to give evidence to the delegate, but chose not to do so. In these circumstances the Tribunal finds that the applicant, despite being given several opportunities, has failed to adequately advance her claims such that the Tribunal can be satisfied she has been telling the truth.
In light of the fact that the applicant admits that she is willing to lie to the Tribunal to achieve her preferred immigration outcome, and given that she was untruthful about such a central tenet of her claims, it finds that she has tried to mislead the Tribunal. The Tribunal finds that none of her evidence can be considered credible in these circumstances specifically when the applicant herself has declined the opportunity to continue to enunciate them in presenting her review at a public hearing.
Findings of Fact on Relevant Matters
The Tribunal has found that the veracity of the information provided in support of the applicant’s claims has been so weakened that it cannot believe any of the material provided by the applicant. As such it finds she has fabricated her story in order to stay in Australia indefinitely. The Tribunal rejects all applicants’ claims, including the claimed objection her family or her boyfriend’s family have to their relationship given the evidence provided by her. The Tribunal also rejects all the claims of harm that flow from her claim about her and her boyfriend and their parents.
The Tribunal has also considered the applicant’s claims that her family will not ‘keep’ her and she does not have the means to support herself either in the Punjab or elsewhere in India. Given the Tribunal has found the applicant is not a credible witness it rejects these claims
The applicant will not suffer any harm in the foreseeable future if she returns to India.
Refugee Criteria
Under s.5J(1), a person has a ‘well-founded fear of persecution’ if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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 is taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-5LA.
In determining whether an asylum seeker has a ‘well-founded fear of persecution’ s.5J(1)(a) contains a subjective requirement that an applicant, in fact, holds a fear of being persecuted. Further, s.5J(1)(b) imposes an objective standard that there be a real chance the applicant will be persecuted if returned to his or her receiving country. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. However, a person can have a well-founded fear of persecution even if the possibility of the persecution occurring is well below 50 per cent.[5]
[5] Chan Yee Kin v MIEA (1989) 169 CLR 379.
For all the reasons above, and in light of the fact that the Tribunal has rejected all the various claims made by the applicant, it finds that she does not have a real chance of any harm, let alone persecution, in the foreseeable future for any of the reasons put forward. The applicant does not meet the requirements in s.5J(1)(b).
The applicant does not have a well-founded fear of persecution as defined in s.5J of the Act. Therefore, he does not meet the meaning of ‘refugee’ set out in s.5H of the Act.
Complementary Protection Criteria
Section 36(2)(aa) requires an applicant to have a ‘real risk’ of suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[6]
[6] MIAC v SZQRB [2013] FCAFC 33.
Therefore, for the reasons above the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk he will suffer significant harm.
Conclusions
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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
…

[2018] AATA 4610

18 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction

Standing