1610987 (Refugee) - [2019] AATA 4212

1610987 (Refugee) [2019] AATA 4212 (31 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1610987

COUNTRY OF REFERENCE: India
MEMBER:Nora Lamont
DATE:31 May 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 May 2019 at 12:42pm
CATCHWORDS
REFUGEE – protection visa – India –social group – membership of a family – fear of harm due to father’s business dealings – Ponzi scheme – did not apply for protection visa until in country for seven years – delay in lodging protection visa serious concern – lack of evidence – credibility issues – no well-founded fear of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth) Schedule 2

CASES
MIMA v Rajalingam (1999) 93 FCR 220
MIMA v Sarrazola (No 2) (2001) 107 FCR 184
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Selvadurai v MIEA & Anor [1994] 34 ALD 346

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 1 July 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of India, applied for the visa on 4 March 2016.
The applicant appeared before the Tribunal on 14 March 2019 to give evidence and present arguments. The applicant did not require an interpreter for this hearing.
The applicant was represented by a registered migration agent.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1610987 (Refugee)

Details

AGLC: 1610987 (Refugee) [2019] AATA 4212
Case: [2019] AATA 4212
Decision Date: 31 May 2019

CaseChat Overview and Summary

The applicant, an Indian national, sought a protection visa in Australia. The dispute arose from the applicant's claim that he feared harm upon return to India due to his father's involvement in a Ponzi scheme, which had led to the seizure of his father's company and attacks on his family's property. The applicant had arrived in Australia in 2009, overstayed his student visa from March 2011, and only applied for a protection visa in March 2016. The decision under review was made by Nora Lamont, a member of the Tribunal.

The primary legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, as required by section 36(2)(a) of the Migration Act 1958, or whether he met the criteria for complementary protection under section 36(2)(aa) by facing a real risk of significant harm upon removal from Australia. The Tribunal was also required to consider the applicant's delay in lodging his protection visa application and any evidence of effective protection measures available in India.

The Tribunal considered the applicant's claims in light of the relevant policy guidelines and country information. It noted the significant delay in the application and found credibility issues with the applicant's account, particularly regarding his activities after his studies ceased. The Tribunal also considered the definition of "significant harm" and the circumstances under which a person might not face a real risk of such harm, including the availability of relocation or state protection. Ultimately, the Tribunal found that the applicant had not established a well-founded fear of persecution and affirmed the delegate's decision not to grant the protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 applicant was born on [date] in a village just outside of Ludhiana Punjab India. The applicant’s parents live in India and he has one [sibling] who currently lives in [Country 1]. The applicant claims to be a citizen of India. The applicant provided identity documents to the Department and to the Tribunal. The Tribunal finds that the applicant is a citizen of India and that India is his country of nationality and his receiving country for purposes of complementary protection. 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. The applicant’s migration history is as follows: [1] ·[January] 2009 Arrived in Australia on a Subclass 573 Student Visa. ·15 March 2011 the applicant’s student visa expired and he became unlawful.·4 March 2016 the applicant applied for a Protection Visa. [1] [Footnote deleted] The applicant’s claims as summarised by the delegate are as follows: [2]·He left India to study but while here his father’s company, [Company 1], has been seized by the government and the accounts frozen. His father has not been able to pay his clients the money he owes then. His grandfather’s house has already been attacked and his property damaged. ·He has [Footage] of a huge mob attacking his family’s house.·The mob are after all of his family including himself.·If he returns to India he will be harmed as a result.·There is no state protection –the police are corrupt.·He cannot relocate-his father’s business is located all over India. [2] [Footnote deleted] The applicant was invited to contact the department within 7 days to arrange an interview but did not and the delegate made a decision on the papers. Tribunal Hearing The applicant said that his father is in hiding due to the ongoing business issues, and his mother still lives at home and operates a [business]. The applicant said that due to his father’s business they moved around a lot. [The] applicant came to Australia as he wanted to study [a specific subject] as he likes [undertaking associated activities]. The applicant went to [an] Institute and studied [the specific subject]. He said he didn’t finish because all of the things that started happening with his dads business. The Tribunal queried this as it appeared that all the trouble did not start until 2014. The applicant only went to school for 6 months then he had to stop. The Tribunal asked what he did after that and he said he did nothing, he did not work, he did nothing. He was living with his Auntie and his parents said do not come back. He did not go to school and he did not tell his Auntie. When the Tribunal asked where he got the money from, he said his father. He gave money to his Auntie for him.

Decision

Reasons for decision

The Tribunal affirms the decision not to grant the applicant a protection visa.Nora LamontMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

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 applicant was born on [date] in a village just outside of Ludhiana Punjab India. The applicant’s parents live in India and he has one [sibling] who currently lives in [Country 1]. The applicant claims to be a citizen of India. The applicant provided identity documents to the Department and to the Tribunal. The Tribunal finds that the applicant is a citizen of India and that India is his country of nationality and his receiving country for purposes of complementary protection. 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. The applicant’s migration history is as follows: [1] ·[January] 2009 Arrived in Australia on a Subclass 573 Student Visa. ·15 March 2011 the applicant’s student visa expired and he became unlawful.·4 March 2016 the applicant applied for a Protection Visa. [1] [Footnote deleted] The applicant’s claims as summarised by the delegate are as follows: [2]·He left India to study but while here his father’s company, [Company 1], has been seized by the government and the accounts frozen. His father has not been able to pay his clients the money he owes then. His grandfather’s house has already been attacked and his property damaged. ·He has [Footage] of a huge mob attacking his family’s house.·The mob are after all of his family including himself.·If he returns to India he will be harmed as a result.·There is no state protection –the police are corrupt.·He cannot relocate-his father’s business is located all over India. [2] [Footnote deleted]