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

1. 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).

2. The applicant, who claims to be a citizen of India, applied for the visa on 4 March 2016.

3. 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.

4. The applicant was represented by a registered migration agent.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.  

9. 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

10. 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

11. 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].

12. 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.

13. 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]

14. 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]      

15. 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

16. 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.

17. [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.

18. He started working fulltime in 2017 as a [Occupation 1]. He moved out of his Aunties house and lives on his own. When asked how often he speaks to his father he said every twenty days or so and he doesn’t know where he is located. When asked where he got his money he said he sold his house and he has land from his father’s side so he gets money from agriculture.

19. The applicant spoke with the applicant about who [Mr A] is. The applicant said it was his grandfather but in fact it is his father’s uncle not his grandfather. The applicant said that that is what they call him. [Mr A] is in prison since 2016 he was convicted of a Ponzi scheme. The applicant said that [Mr A] made his father a [Occupation 2] in some companies. The applicant claims that his father knew nothing of the pilfering of funds in these businesses.

20. The applicant gave the Tribunal a summons given to him from his father to appear before the [authorities] dated 2014 and instead the applicant’s father went into hiding. The applicant said that he would have been arrested but the Tribunal had information that showed a list of those complicit in the scheme who were arrested or involved yet somehow his father’s name was not on the list. The applicant said that his father had other companies and that is why.

21. The Tribunal could not find one single newspaper article or anything related to the applicant’s father and put this information to the applicant. The applicant responded that there were others and his father had other companies. His answer did not make sense.

22. The applicant said that his mother was living back outside of Ludhiana and has not had any issues; the applicant said that his mother is not known so no one bothers her. When asked why he thought he would be known if he went back, after all he has been in Australia for ten years, he said people will think he has been living here with all the money, that his father was sending him. He said people don’t know that he is actually working here. Again the Tribunal asked how they would know that and he said that that’s what people think.

23. The Tribunal also noted that the applicant is related to some of the people [who] are implicated in the Ponzi [scheme]. The applicant said yes they were his cousins and Aunties and that he has seen them and does speak to them but not about the business.[3]

    [3] [Source deleted]

24. The Tribunal asked about the [video] the applicant said he had. He said that it was at his grandfather’s house. The Tribunal asked for the link as they could not find it and the applicant said he would send it in but he never did. The Tribunal also asked him if by his grandfather he meant his father’s uncle to which he said yes.

25. The applicant said he was being targeted as well. The Tribunal asked how that was as he had been in Australia for ten years so who could possibly target him let alone know where he lived? The applicant said that people thought his father was sending him money and therefore he too would be a target. The Tribunal put to the applicant that he could move anywhere in India he didn’t need to go back to the Punjab. The applicant said that they could kidnap him or torture him for revenge or money. The Tribunal asked where all the money was and he said he didn’t know all the bank accounts have been frozen. The Tribunal asked if his mother knew his father was stealing money and he said she didn’t know until after and she still speaks to his father.

26. The applicant said there is no state protection and they are all corrupt. He said especially in the Punjab and they take bribes. He said that paying the police is normal and he cannot pay any money so they can’t protect him 24 hours a day. The applicant said he didn’t want to stay here he actually came here to study. The Tribunal said he did nothing for 9 years and all that time he could have been studying. The applicant said he was depressed.

27. The Tribunal put to the applicant that he could relocate as according to DFAT over 307 million people internally relocate. [4] The applicant said he can’t they will find him and he can’t sit in the house.

    [4] DFAT Country Information Report India 17 October 2018 page 27.

28. The Tribunal asked for documents that showed his father actually worked in these companies and the applicant said he would get them to the Tribunal but the applicant did not send any additional documents to the Tribunal. The Tribunal gave the applicant and his representative 21 additional days to get some more concrete documentation of his father’s dealings but there were no further submissions.

    Credibility

29. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482: -stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

30. The Tribunal also accepts that 'if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt'. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

31. The benefit of the doubt should, however, 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.

32. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

33. The Tribunal must bear in mind 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 (see MIMA v Rajalingam (1999) 93 FCR 220).

34. The applicant was in Australia for seven years prior to applying for a protection visa and does not accept as credible the applicant’s claim to have ‘done nothing’ for those seven years.

35. The applicant came to Australia in 2009 and only completed 6 months of his school program once he arrived. From 2009- 2017 when the applicant got a full time job, the applicant told the Tribunal that he ‘did nothing’. The applicant did not apply for a protection visa until he had been in the country for seven years. The Tribunal considers that the applicant has the capability to understand and deal with more complex situations such as considering their visa status in Australia. The considerable delay in lodging the protection visa is of serious concern to the Tribunal.

36. The Tribunal considers that had the applicant held a genuine fear of persecution arising out of his circumstances that the applicant would have sought to lodge a protection visa application much earlier and the delay leads to a consideration that his claims in this regard are not urgent or genuine.

37. The Tribunal refers to the decision in Selvadurai v MIEA & Anor [1994] 34 ALD 346 [5] in which Justice Heerey found that a delay in lodging a refugee application was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution. This delay in lodgement adds to the Tribunal’s concerns.

    Member of a Particular Social Group

    [5] Selvadurai v MIEA & Anor[1994] 34 ALD 346

38. The Tribunal discussed with the applicant how or if he felt he fit under a Member of a Particular social group. The Tribunal explained that the Migration Act includes certain qualifications where the social group relied upon is membership of a family. Section 5K requires that in determining whether a 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, the decision maker must (a) disregard any fear of persecution, or any persecution, that any other member or former member of the family has ever experiences where the reason for the fear or for the persecution is not for a refugee reason. (b) Further, disregard any fear of persecution, or any persecution, that: the first person has ever experienced; or any other member or former member 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 (a) had never existed.

39. As a result of these provisions, a person who is pursued because he or she is a relative of a person who is targeted for a non-refugee reason will not have a well-founded fear of persecution for this reason. (This includes criminal pursuit for repayment of debt as in MIMA v Sarrazola (No 2) (2001) 107 FCR 184.

40. The applicant’s representative responded that if the Tribunal found he was not a member of a particular social group then he fit under Complementary Protection. However, it is the Tribunals conclusion that the application of membership of a particular social group does not apply as the applicant is claiming he will be pursued based on his family’s criminal activity, and not on anything that he himself has done.

41. The Tribunal does not accept that the applicant is a member of a particular social group despite a submission from the applicants representative contending that the applicant is a member of a particular social group that being: a family member of a [Occupation 2] associated to [Company 1].

42. The applicant was asked for further documentation two times during the hearing and also at the end of the hearing, including a link to the [footage] which was in his written claims. However, there were no further submissions. The Tribunal therefore, must make its decision based on the information it has before it and not limited to the google searches made by the Tribunal. Whilst the tribunal found some documents with the applicant’s father’s name on them, there was not one item found that indicated that the applicant’s father has been implicated in the Ponzi scheme, not one bit of evidence that the applicant’s father was a wanted man, that he was being targeted or that he was on the run from the authorities. In light of this the Tribunal does not accept that the applicant’s father is the subject of any enquiry into his business dealings, nor does the Tribunal accept that the applicant’s father is wanted or is on the run.

43. Given these findings and the finding that the applicant lacks credibility it follows that the Tribunal does not believe that the applicant himself would face any harm in India based on his father’s business dealings and the Tribunal does not believe that the applicant as a necessary and foreseeable consequence of being removed from Australia to India would face a real chance of significant harm.

44. As the Tribunal does not accept the applicant’s claims of harm upon return to India for his father’s business dealings, the Tribunal does not accept that the applicant would not receive state protection due to corruption. The Tribunal finds the applicant foes not have a well-founded fear of persecution.

    Conclusion

45. 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).

1. 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).

2. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

   DECISION

3. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Nora Lamont
   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.

   …