1611294 (Refugee)

[2019] AATA 1762

1611294 (Refugee) [2019] AATA 1762 (31 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1611294

COUNTRY OF REFERENCE:                  India

MEMBER:Paul Noonan

DATE:31 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 31 January 2019 at 10:23am

CATCHWORDS

REFUGEE – protection visa – India – particular social group – married for love against the wishes of respective families – religion – Dera Sacha Sauda – credibility issues – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5J, 36
Migration Regulations 1994 (Cth), Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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.

[MS A]

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 is a [age] year old male who travelled to Australia on an apparently genuine Indian passport, a copy of which is contained on the Departmental file. The applicant has always represented himself to be an Indian citizen in his dealings with the Department. The Tribunal finds the applicant is an Indian citizen and has assessed the applicant’s claims against India as his country of nationality.

3. According to the Department records before the Tribunal the applicant arrived in Australia [in] March 2009 as the holder or a [student] visa. The applicant departed Australia [in] May 2011 and arrived back in Australia [in] July 2011 on a [student] visa. On 20 September 2011 the applicant’s student visa expired and the applicant became an Unlawful Non-Citizen. On 26 May 2015 the applicant applied for a Protection (Class XA) visa and an associated bridging visa was granted.

4. The applicant seeks to invoke Australia's protection obligations so that he does not have to return to India, where he claims to fear harm on the basis that he is a member of a particular social group being people who have married for love against the wishes of their respective families.

5. The applicant appeared before the Tribunal on 19 December 2018 and gave evidence on oath. The applicant’s spouse [Ms A] also appeared before the Tribunal on 19 December 2018 and gave evidence on oath. Both the applicant and [Ms A] participated in the entire hearing together. The applicant was unrepresented. The Tribunal was assisted in the hearing by an interpreter in the Punjabi language.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.  

10. 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.

11. 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.

12. For the following reasons, the Tribunal has concluded that the decision of the delegate should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The applicant’s written claim for a protection visa is made (in summary) on the basis that he was in a relationship in India with [Ms A] which her parent’s objected to. [Ms A]’s parents threatened that if he chased [Ms A] they would kill him. He was also beaten by [Ms A]’s brother and his friend. For his safety the applicant’s parents sent him to Australia to study. He then travelled to India in 2011 and proposed to [Ms A] that she travel to Australia to join him. [Ms A]’s parents believe he is in [Country 1]. [Ms A] subsequently travelled to Australia to study. The applicant and [Ms A] have now married in Australia. If he went back to India [Ms A]’s parents will kill him.

    Australia’s Protection Obligations - Refugee Criterion

    Credibility

14. In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear; that the fear is “well-founded”; or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-170.)

15. In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.

16. On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

17. At hearing the applicant stated that [Ms A]’s parents still oppose his relationship with [Ms A] and he fears harm from them because of this reason. They are very strict and traditional in their thinking and disagree with relationships formed through love as opposed to relationships arranged by the respective families of the couple.

18. The Tribunal discussed with the applicant [Ms A]’s parents attitude to himself and [Ms A]. When questioned about [Ms A]’s status in respect to her family the applicant noted that she was not under any threat from her parents. When asked why this was the case the applicant stated that that this was because she is their daughter and boys are mostly targeted in such matters. The Tribunal asked [Ms A] if she feared harm from her parents or family as a result of her relationship with the applicant. [Ms A] confirmed to the Tribunal that she held no fear of harm from her parents or family. She confirmed that their young son was currently residing in India with the applicant’s parents. She had been back to India with their son and had left him there to enable her to concentrate on her studies. She did not leave the child with her parents as she is not talking with her family. The Tribunal questioned the applicant in respect to any threat to his child by [Ms A]’s parents or family. He stated there was no threat to their son. His confirmed that his parents know [Ms A]’s parents but only vaguely and that they live in the same area. The Tribunal accepted the applicant’s evidence in respect to the lack of a threat to [Ms A] or their son from either his or her families. The Tribunal considered the established lack of threat to [Ms A] from her family, and her willingness to leave their child in close proximity to her family in India, with no fear of harm from them for an extended period of time, significantly undermined the applicant’s credibility in respect to his claim to fear harm from [Ms A]’s parent’s and family due to threats to kill him. Further, when asked, the applicant confirmed that his parents had not received any threats from [Ms A]’s family. The Tribunal found it implausible that the applicant would be harmed when his parents and his child who live in the same area as [Ms A]’s family haven’t received any threats and there is no animosity between them. Further, in circumstances where [Ms A] is under no threat of harm from her family, the Tribunal found it implausible that the applicant would be harmed should he return to India. The Tribunal also noted that [Ms A] had recently returned to India done without suffering any harm.

19. The applicant confirmed that both he and [Ms A] are of the same [caste] and religion. The Tribunal put to the applicant that country information states that families of intending marriage partners may perpetrate violence against people in inter-religious or inter-cate marriages.[1] The Tribunal put to the applicant that the applicant’s circumstances do not reflect these circumstances cited in country information that are generally reflective of a situation in which violence against love marriages such as his can arise. The country information before the Tribunal does not suggest that boys involved in love marriages in India are targeted for harm and the girls are left unharmed and that generally women are at some risk of discrimination and violence.[2] On the basis of the country information and evidence before it the Tribunal also did not accept the applicant’s claim as plausible that [Ms A]’s parents and family would only seek to harm him and not [Ms A] due to his relationship with [Ms A].

    [1]     Department of Foreign Affairs Information report – India, 17 October 2018 at 19.

    [2] Department of Foreign Affairs Information report – India, 17 October 2018 at 18.

20. The applicant also raised that potentially it may also be that animosity from [Ms A]’s parents may be religious based due to his following of Dera Sacha Sauda. The Tribunal noted this claim had not previously raised by the applicant and expressed doubt to the applicant as to this claims credibility in circumstances where he had not raised it as a claim before. Further when asked the applicant confirmed that this reason for resistance to his relationship with [Ms A] had never been raised with him or expressed by [Ms A]’s family.

21. The Tribunal considered it implausible that the applicant’s relationship with [Ms A] was opposed by her family on the basis of his religion in circumstances where the applicant could only speculate that this may have been the case and this had never been raised as an issue with him. The Tribunal would expect the applicant would have a clear understanding of this as a reason for [Ms A]’s parent’s and family’s opposition to his relationship with her if that was the case. Further the applicant had not raised this as a claim at any stage prior to the hearing and this caused the Tribunal to further doubt this claim as plausible.

22. The Tribunal also noted a significant inconsistency between the applicant’s written claim for protection and his evidence to the Tribunal. In his written claim he stated he was beaten up by [Ms A]’s brother and his friend. In his verbal evidence he claimed he was beaten up by [Ms A]’s cousin and three of his friends because of his affair with [Ms A]. When this inconsistency was put to the applicant he stated that the cousin is considered a brother by [Ms A]’s family. The Tribunal considered the applicant’s explanation for this significant inconsistency in regard to the perpetrator of harm upon him to be lacking in plausibility. The Tribunal would expect that the applicant would clearly recall and identify with consistency and precision the perpetrator(s) of a past beating that he suffered in circumstances where he has always claimed to know the identity of his assailant(s) and their motivations. The Tribunal considered the applicant’s lack of detail and vagueness in respect to his assailant(s) identities and numbers to undermine his credibility in respect to this claimed serious harm. The Tribunal did not accept that the applicant was beaten by members of [Ms A]’s family due to his relationship with [Ms A].

23. On the basis of the above considerations the Tribunal did not accept that [Ms A]’s parents or her family still oppose the relationship between the applicant and [Ms A] and will seek to kill him or otherwise harm him upon his return to India nor that they have made threats to kill him in the past or beaten him in the past.

24. Overall the Tribunal did not accept on the evidence before it that there is a real chance that, should the applicant return to India, that he will be harmed. The Tribunal did not accept there to be a real chance he will be targeted for harm now or in the reasonably foreseeable future by any member of [Ms A]’s family if he returns to India due to him being a member of a particular social group being people who have married for love against the wishes of their respective families.

    Conclusion

25. It follows that the Tribunal does not accept the applicant has a well-founded fear of persecution for any reason claimed if he returns to India.

    Complementary Protection

26. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm. In this case, the Tribunal has found that the applicant is a national of India and the Tribunal therefore finds that India is the ‘receiving country’ for the purposes of s.5(1) of the Act.

27. For the reasons set out above, the Tribunal found that the applicant has not been threatened with harm or harmed on the basis of him being a member of a particular social group being people who have married for love against the wishes of their respective families or for reason of his religion. The Tribunal has not accepted there to be a real chance that if the applicant returns to India, [Ms A]’s parents or family will seek to harm him due to his relationship and subsequent marriage to [Ms A].

28. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee definition.[3] Further there were no other reasons advanced as to why the applicant would face harm should he return to India. For the same reasons the Tribunal does not accept there to be a real risk that the applicant would face significant harm on this basis. 

    [3] MIAC v SZQRB [2013] FCAFC 33 per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297] and Flick J at [342]

29. For these reasons the Tribunal does not accept there to be a real risk that the applicant would face significant harm as a necessary and foreseeable consequence of being removed from Australia to India.

    CONCLUSIONS

30. 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).

31. 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).

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

    DECISION

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

    Paul Noonan
    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.

    …