1611213 (Refugee) - [2019] AATA 5825

1611213 (Refugee) [2019] AATA 5825 (12 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1611213
COUNTRY OF REFERENCE:                   India
MEMBER:Anne Grant
DATE:12 June 2019
PLACE OF DECISION:  Melbourne

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

Statement made on 12 June 2019 at 4:20pm
CATCHWORDS
REFUGEE – protection visa – India – dowry dispute with former wife’s family – former wife’s family’s harassment of applicant’s family and threats against applicant – legal procedings – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 65
Migration Regulations (Cth), Schedule 2
CASES
EZC18 v MHA [2019] FCCA 464
MIAC v SZQRB [2013]FCAFC 33
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 29 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 on 30 June 2015. The delegate refused to grant the visa, finding, in summary, that she was not satisfied that the applicant’s fear of harm was for any of the reasons in section 5J(1)(a) of the Act. The delegate also found that there was not a real risk that the applicant would suffer significant harm if he were to return to India.
A hearing was conducted on 2 May 2019 and the applicant attended and gave evidence, in English. At the conclusion of the hearing, the applicant requested and was granted time to provide additional information about legal proceedings commenced against him and his parents soon after the end of his marriage by his former wife’s family and finalised in around 2011. On 29 May 2019, he provided a document said to be a Copy of an FIR dated [October] 2008, (in English only) against the applicant and other people, including his parents.
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…

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 1611213 (Refugee)

Details

AGLC: 1611213 (Refugee) [2019] AATA 5825
Case: [2019] AATA 5825
Decision Date: 12 June 2019

CaseChat Overview and Summary

The applicant, an Indian national, sought a protection visa, claiming a well-founded fear of persecution and significant harm if returned to India. The dispute arose from a dowry harassment case initiated by his former wife's family following their separation. The applicant alleged that his former wife's family, who are well-connected locally, threatened to lodge false criminal charges against him and potentially cause him harm, including death, due to their vengeful nature and influence with local politicians and police. The applicant also claimed his elderly parents were being harassed by the former wife's family through frivolous complaints to local authorities. The decision under review affirmed the refusal of the protection visa.

The primary legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution for one or more of the five prescribed reasons under section 5J(1) of the *Migration Act 1958* (Cth), and if not, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to India, he faced a real risk of suffering significant harm. The Tribunal was also required to consider the provisions of section 36(2B) of the Act, which outline circumstances where a real risk of significant harm is not taken to exist, such as the availability of reasonable relocation within the country or the possibility of obtaining protection from national authorities.

The Tribunal considered the applicant's evidence, including news articles suggesting that false dowry harassment claims can be made against men in India and have severe consequences. While acknowledging that the dowry harassment law can be abused, the Tribunal cautioned against relying on unverified reports and statistics. The Tribunal noted a Supreme Court of India report indicating that arrests should not be made on dowry complaints without verifying the allegations, and that such complaints should be referred to a family welfare committee. However, the Tribunal found no reliable country information with verified statistics to substantiate the applicant's specific claims of a high number of false dowry claims or that he would personally face such a risk. The Tribunal was not satisfied that the applicant met the criteria for a protection visa.

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

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 36(2B) of the Act sets out certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm.; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally. CLAIMS AND EVIDENCE The issues in this case are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to India, there is a real risk that he will suffer significant harm.Applicant’s oral and written evidence I have before me the Department’s file which includes a copy of the applicant’s protection visa application, various news or blog articles filed in support of his claims by the applicant and the delegate’s reasons for decision. The applicant has also provided a copy of the delegate’s decision to the Tribunal with his application for review. In his written claims, the applicant lists his nationality as Indian and his faith as Hindu. He formerly lived in Amritsar, Punjab. The applicant’s claims (from his written application and his oral evidence) in summary are as follows:· In his written claims, the applicant submitted that he came to Australia to study in 2005. However, he claims that if he returns, he will be prosecuted for crimes he has not committed, because the family of his previous wife has lodged a complaint against him with the police. The complaint claims that he has taken dowry even though he did not and that he has harassed and tortured her. He has not sought help as he has not returned to India since the complaint and the police would find him anywhere to prosecute him for crimes which he did not commit. · He has provided, with his written claims, several general news articles about men being charged over dowry complaints, and the impact such claims have on men, particularly when the claims are said to be false. At hearing, the applicant said these articles were put forward to demonstrate that false dowry claims are made against men in India and that such claims can destroy a man’s life. · He returned to India from Australia in 2007 to marry. The woman was from a local family well known to his family, and was an arranged marriage. She then returned to Australia with him but very quickly, it became clear that she ‘wanted more’ in terms of better accommodation and a higher standard of living. The applicant said his family is relatively middle class as is hers, and they are from the same caste. Her family knew he was a student in Australia but when his wife came here, she seemed to expect that he was a businessman. She refused to look for work and demanded more and complained a lot and they began to fight. She returned to India and they separated within about six months of her coming here. When she returned, she told her family he had harmed and abused her. · Her family responded very badly to the separation. They have threatened to lodge a case against the applicant and in his absence did lodge a dowry harassment case against his family in 2008. They spent years defending it until it was quashed in the Supreme Court in Delhi in either 2010 or 2011. His wife’s family have not forgotten him and will lodge a dowry harassment case against him as soon as he sets foot in the country. He claims that they may even get him killed.· Her family is well connected and know prominent local politicians. They will find him throughout the country and as soon as they know he is back, they will start a false case against him which will ruin him. The applicant says that people in India do not give up their grudges. Even though a lot of years have gone past, they are still vengeful and will lodge a false case against him because they want to harm him. They harass his parents, who are old, by making false and irritating and frivolous complaints to the local authorities about them, such as about bad parking on the street. His parents have not lodged any FIR’s about this harassment because they want nothing to do with them.· The applicant claims that there was no dowry – her family just gave his family a gift of [amount], which was used to buy furniture. The applicant asserted that 1 lakh is only 1-2,000 rupees, despite my referring to and understanding that 1 Lakh was 100,000 rupees. · His [sibling] got married and for some time, his in-laws annoyed [her/him] by asking where the applicant was, even though [s/he] moved to Bangalore, far from them. She and [her/his] [spouse] work in IT. They haven’t contacted [her/him] for about one year.· The applicant claims that the family of his ex-wife know the local police and politicians in Amritsar and he would not be safe from them ‘all over India’. The local police and authorities will not protect him.· The applicant said during the hearing that he does not work in Australia and his parents and friends are supporting him. However, during the hearing when asked why his parents wouldn’t continue to support him if he moved elsewhere within India, he gave different evidence, saying that his parents are not supporting him in Australia, he is supported by friends.· The applicant agreed, as noted by the delegate, that he did not lodge his claim for protection until he had exhausted all other options for a work or skilled visa had concluded because, as he said, he was hopeful of showing that he was qualified for that visa. · The applicant said if he returns to India, he is in his [age], is not well-educated and would find it difficult to find work and re-establish himself. He has a [Qualification in Subject] and has worked in [a work sector] when he had work rights in Australia.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

Generally, these reports suggest that false dowry harassment claims are made against men by ‘disgruntled’ women in India and that men’s lives are ruined as a result. However I consider that caution must be exercised in relying on them as verifying any tangible number of such incidents. Without exception the information and statistics in the reports are unverified; and even at times contradict each other. These reports are not proof of the claims included within. I have been unable to locate reliable country information which provides verified statistics about false dowry claims, or indeed that a high number of claims lodged are in fact false. Nonetheless, I accept that there are some reports suggesting that the dowry harassment law can be abused by filing false charges, and that this has come to the attention of the Supreme court: one report I located, as discussed with the applicant, suggests that the Supreme Court has indicated that persons charged with dowry crime should not be arrested pending trial due to the risk to innocent defendants and taking into account the length of time between charging and the hearing.[1] This report includes the following information:“NEW DELHI: Expressing concern over disgruntled wives misusing the anti-dowry law against their husbands and in-laws, the Supreme Court on Thursday directed that no arrest or coercive action should be taken on such complaints without ascertaining the veracity of allegations.Acknowledging a growing trend among women involved in marital discord to abuse Section 498A of IPC to rope in their husbands’ relatives, - including parents, minor children, siblings and grandparents – in criminal cases, a bench of Justices AK Goel and UU Lalit said it was high time such frivolous cases which violated the human rights of the innocent was checked…The bench ruled that all such complaints received by the police or the magistrate must be referred to the family welfare committee and no action should be taken against the husband and the in-laws till the committee gave its report after interacting with the parties.“Report of such committee be given to the authority by whom the complaint is referred to, latest within one month from the date of receipt of complaint,” the court said. The court also said bail applications of husbands and in-laws should be decided expeditiously by trial courts, preferably the same day it is filed. [1] “Dowry: no arrest in dowry cases till charges are verified, says Supreme Court” Times of India report 27 July 2017 available here: CONSIDERATION AND FINDINGS On the basis of the applicant’s passport presented at hearing and his evidence about his nationality, I am satisfied that the applicant is a national of India. Accordingly, India is the country of reference with respect to the refugee criteria and the receiving country in respect to complementary protection criteria.Does the applicant have a well-founded fear of persecution should he return to India?