1609943 (Refugee)

1609943 (Refugee) [2016] AATA 4611 (25 October 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1609943
COUNTRY OF REFERENCE:                  India
MEMBER:Peter Vlahos
DATE:25 October 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 October 2016 at 12:47pm

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 [in] 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 [in] September 2015. The delegate refused to grant the visa [in] June 2016.
The applicant appeared before the Tribunal on 23 September 2016 to give evidence and present arguments.
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 Australia has protection obligations in respect of the applicant.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed
Country of nationality and identity
Based on the copies of the applicant’s passport, which was provided to the Department of Immigration and Border Protection, the applicant’s oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of India and have assessed claims against that country in relation to ss. 36 (2) (a) and 36 (2) (aa) of the Act.
On the basis of the above-mentioned evidence, the Tribunal further accepts the applicant’s identity as claimed.
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to material referred to in the delegate’s decision. The applicant did not attend the departmental interview scheduled for [a date in] November 2015. He provided a copy of the departmental record of decision to the Tribunal with the review application.
Background
As referred to in the decision under review [in] September 2008 the applicant arrived in Australia as the holder of [a] Student visa to study [Subject 1].
[In] September 2011 the applicant applied for a [different temporary] visa, and [in] November 2011 the Department refused the applicant’s visa [application].
[In] February 2013 the Department’s refusal of [that temporary] visa was affirmed by the Migration Review Tribunal.
[In] October 2014 the applicant’s Student visa was cancelled by the Department because the applicant failed to maintain his enrolment current.
[In] March 2015 the Department’s decision to cancel the applicant (2^nd) Student visa was affirmed by the Migration Review Tribunal.
[In] September 2015 the applicant applied for a Protection visa and he has remained in Australia since that date. [In] June 2016 the Department refused to grant him a Protection visa.
On 5 July 2016, the applicant applied to the Migration and Refugee Division of the Administrative Appeals Tribunal (the Tribunal) for a review of the Department’s decision.
The Applicant’s claims
The applicant’s claims can be summarised as follows:
vHe came to Australia to study but when he returned home his father had issues with [his Relative A] over a “…big amount of land”
v[Relative A] tried to harm his father and other members of his (applicant’s) family
vAs he is the only son of his father, the land is automatically his on his father’s death and his life is in danger, if he returns
vHe believes the authorities cannot protect him if he returns to India because his [Relative A] has “…good relations with politicians and there is a bribe culture in India and his father is not in a position to pay a bribe”
The Tribunal asked the applicant whether he wished to add or change his claims and the Tribunal was told that he had no further claims to make.
Evidence at the Hearing
The applicant comes from a rural background and originates from [his home town], a rural town, in the State of Punjab, India. He told the Tribunal that he has lived there all of his life and that his mother and father also live there. Though, his father currently resides in [Country 1], where he works as [an occupation 1] and has done so for the past [many] years. The applicant’s father returns every year to India to see his wife.
The applicant arrived in Australia in 2008 with the intention to study [Subject 1] and then return to India. He was enrolled at the now defunct [Education Provider 1], at [Suburb 1]. His course was for a three year duration commencing as a Certificate III and progressing later to a Bachelor’s Degree.
In 2011, the Tribunal was told that while in India on a holiday to see his parents, the applicant’s educational provider went bankrupt and he was unable to complete his studies. He told the Tribunal that all he managed to complete was a Certificate III in [Subject 1] but he was unable to provide the [qualification] as he had not received it from the Department as other students had done so. The applicant did not tell the Tribunal why he was unable to receive his [qualification], if he had completed his studies for it. Following this issue, the applicant enrolled at [another provider], at [Suburb 2] to study a three year [course] in [Subject 2].
At the end of 2011, the applicant told the Tribunal that he decided to visit his family in India and he stayed there for two months.
It was while he was in India that the applicant told the Tribunal that his troubles with his [Relative A] commenced. The applicant described his [Relative A] as a “…drunk”, a “…violent person”, “…a drug addict” and a person with a lot of local political clout in the Punjab. He also told the Tribunal that his [Relative B] had divided the family’s farm holdings before his death and both his aggrieved [Relative A] and his father were allotted their individual inheritances. The only difference between the two, according to the applicant, was that his father maintained his holding of pastoral land, while his [Relative A] squandered it on drink and drugs.
The Tribunal asked the applicant how he became involved in a dispute over a parcel of land which largely concerned his father and his [Relative A]. The applicant’s response was to tell the Tribunal that at a family gathering, discussions had gone on between his father and his [Relative A] over the issue. The discussion became heated and his [Relative A] tried to hit his father and the applicant intervened to protect him. What resulted, according to the applicant was a major altercation between rival members of the family, resulting in ‘others’ in the village to intervening to separate the parties in dispute.
After this altercation, the Tribunal was told that the issue seemed to “…die down. Later, his father returned to [Country 1] but the applicant chose to stay on in India, for a further “…10-15 days” and during one evening the applicant’s [Relative A], who was “…drunk and high on drugs…” came outside the applicant’s parents’ home and threw “stones” and “verbal abuse…” and left the scene.
On another occasion, the Tribunal was told that the applicant’s [Relative A] returned (in the afternoon) with his “friends” and continued with their abuse as on a previous occasion. The applicant got out of his home to confront them about their actions and was hit. On that occasion a neighbour intervened and stopped matters from developing into something serious (according to the applicant).
According to the applicant “quiet returned…” Then, one day (late evening), the applicant decided to take in the sights of his village and visit his father’s farm holdings by bicycle. As he was bike-riding, he saw a group of people on the side of the road ahead of him. They stopped the applicant and told him to get off his bicycle and they began hitting him, yelling at him and verbally abusing him. After 10 – 15 minutes of beating him, the Tribunal was told they warned him “…no to stay here” and that “his father was selfish…” The applicant also told the Tribunal that they asked “…what are you going to do with the land…” and “…convince your father to give the land to [Relative A]…” From this, the applicant understood that these persons were friends of the applicant’s [Relative A] and were sounding a warning about what could happen in the future.
Faced with a direct threat, the applicant told the Tribunal that he reported the incident to the local police. According to the applicant, they noted the incident but took no further steps and he did not know why an ‘FIR’ was not done. However, the applicant did surmise that no action was possible because of “…political pressures which could be brought to bear on the local police not to act as they should by his [Relative A] via his political connections.
The applicant then left India to return to Australia. However, his mother continued to endure mocking and abuse and his father was constantly the target of threats. Moreover, the applicant told the Tribunal, that this ‘land dispute’ between his father and his estranged “drunk and drug taking” [Relative A] affected his studies in Australia and the applicant was unable to complete them.
The Tribunal asked the applicant why a dispute between his father and his [Relative A] over a parcel of land caused him to fear his life. The applicant told the Tribunal that he was his family’s “…first born son” and was to inherit the land if and when his father died. He was of the belief that his [Relative A] would do everything in his power and influence according to the applicant, to prevent him as his father’s heir from claiming his rightful inheritance.
Indeed, the Tribunal asked the applicant had his father instituted legal proceedings in the Courts to ensure that his rights and those of his family were protected. The applicant told the Tribunal that “…yes, this can happen. I know that others have done this, but this can take 10-15 years to go through the courts…” However, it was an option which the applicant acknowledged was open to his father to take to protect both of them, his interests in the land he had inherited from his father and provide protection to the applicant, if, and when he was to return to India.
The applicant also told the Tribunal that even if an FIR issued against his [Relative A] it would not assist the situation, because his [Relative A] had enormous political clout within influential political circles in the state of Punjab. When asked by the Tribunal to name some of these influential politicians his [Relative A] knew, the applicant provided the name of one, ‘[Mr A]’ who he claimed was a person his [Relative A] “knew well.” The Tribunal was then told that ‘[Mr A]’ was no longer in the state legislature (having retired) and he did not know whether “…he was still alive.”
Nevertheless, the applicant expressed serious concerns about returning to India where he believed his life would be placed in jeopardy because of his [Relative A’s] threats. That being the case, when asked by the Tribunal if he had received any direct threats to his person while being in Australia, the applicant told the Tribunal he had not received any threats. Indeed, he told the Tribunal that the only threats that have been expressed were levelled at his mother and father. He also told the Tribunal that sometime in 2015 his mother had to flee her home because of his [Relative A’s] threats. His mother fled [distance] away to his [relative’s] home where she stayed for two weeks and then returned to the family’s home.
The Tribunal also discussed with the applicant his possible relocation if he believed his own life was in jeopardy if he was to return to India. The Tribunal presented to the applicant the option of choosing to live away from his village in one of the major cities of India where it would be difficult for him to be the subject of his [Relative A’s] attention. The applicant conceded that this was a possible option but it was an option that caused him difficulties. He told the Tribunal he wanted to be with his parents and wished to work the parcel of land that was the subject of dispute, as a farmer. The Tribunal was also told that the applicant’s time in Australia had not provided him with benefits as he expected when he first came to Australia in 2008 as a student. He is currently not working and is supported by his friends, at times by his father and his girlfriend. This assistance has been on-going since 2009. Otherwise, he has “…enjoyed it here and freedom…”
Tribunal’s conclusions about the applicant’s evidence
The Tribunal does not accept that the applicant is a credible witness for the following reasons.
First, regardless of the troubles and incidents of personal harm as recounted by the applicant in his evidence to the Tribunal, he remained for a considerable period of time – a further two weeks, in his village, not choosing to flee, even after having been threatened(according to the applicant’s evidence) and assaulted, while on an evening bicycle ride. The Tribunal considers it inconsistent with the applicant’s account of what happened and his claimed fears that he remained in his village for some weeks after he was beaten when on his evening bicycle ride.
Second, the applicant was asked by the Tribunal why his father had never taken any legal action to protect his and his family’s interests. The applicant told the Tribunal that his [Relative A] had political influence locally, and in the Punjab, and knew a number of political figures. He was asked to make them known to the Tribunal, and the applicant told the Tribunal the name of a former politician [Mr A] who he claimed his [Relative A] knew closely. The applicant provided no description of his ‘[Mr A]’ to the Tribunal and described him only as former politician. The Tribunal considers the vague and inconsistent nature of the applicant’s evidence concerning the reasons why his father did not institute proceedings against his [Relative A] because of his local political influence casts doubt on the applicant’s claims in this regard.
Third, the applicant feared returning to India because he would be targeted by his [Relative A] because he was the ‘heir-apparent’ to his father’s land. The applicant also told the Tribunal that the threat was ‘real’ because in 2015 his mother had to flee her home in the village and take refuge at his [relative’s] home some [distance] away. The Tribunal was also told that she took refuge at his [relative’s] home for two weeks and then returned again to the village and has lived there without incident since. The Tribunal considers it not credible and does not accept the applicant’s claim that his mother had to flee her home in the village in 2015, and that she would have been safe from the threats made against her by his [Relative A] only [distance] away nor that she would have returned to the village after only two weeks and would have continued to live there without incident since.
For the foregoing reasons, the Tribunal does not find the applicant’s evidence about the land dispute or anything resulting harm to him, his father or any other member of his family, to be credible.
For those reasons, the Tribunal is not satisfied that there has been an ongoing dispute between the applicant’s father and his [Relative A] and that as a result of this dispute the applicant experienced threats and beatings. Therefore, the Tribunal is not satisfied that the applicant, his father or mother was harmed or threatened with harm as a consequence of a property dispute from 2011 to the present.
For those reasons, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm in the reasonably foreseeable future if he returns to India for any reason. It is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason if he returns to India.
The applicant does not meet the refugee criterion (s.36 (2) (a).
Having regard to the Tribunal’s findings of fact above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed from Australia to India, there is a real risk that he will suffer significant harm.
The applicant does not meet the complementary protection criterion (s.36 (2)(aa)).
Conclusions
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) for a protection visa.
DECISION

The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Vlahos
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.
…

[2016] AATA 4611

25 October 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Standing

Natural Justice