1613191 (Refugee)
[2019] AATA 5750
•23 April 2019
1613191 (Refugee) [2019] AATA 5750 (23 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1613191
COUNTRY OF REFERENCE: India
MEMBER:Jason Pennell
DATE:23 April 2019
PLACE OF DECISION: Melbourne
DECISION: The Tribunal affirms the decision not to grant the applicant a protection visa
Statement made on 23 April 2019 at 10.01am
CATCHWORDS
REFUGEE – protection visa – India – political opinion – Congress Party – attacked by members of the Jatt community – particular social group – non-resident Indian – credibility concerns – vague and lacking in detail – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 36, 499
Migration Regulations 1994, schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
MIMA v Y [1998] FCA 515
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Saliba v MIMA (1998) 89 FCR 38
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 3 August 2016 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).
2.The visa applicant applied for the visa on 20 May 2016. The delegate refused to grant the visa on the basis that she was not satisfied that the applicants were people to whom Australia has protection obligations as outlined in s. 36(a) or (aa) of the Migration Act 1958 (the Act).
3.The applicant appeared before the Tribunal on 6 March 2019 to give evidence and present arguments.
4.For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
RELEVANT LAW
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 themselves of the protection of that country.[1] 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[2].
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.
[1] s.5H(1)(a) of the Migration Act 1958
[2] s.5H(1)(b) of the Migration Act 1958
An applicant is considered not to be at a real risk of suffering significant harm in a country if:
·it is reasonable for the applicant to reallocate to different area of that country where there is no real risk that the applicant will suffer significant harm;[3] or
·the Tribunal is satisfied that the applicant could obtain protection from an authority of that country such that there would not be a real risk that the applicant would suffer significant harm. That is, the level of protection must be such that the risk that the applicant will suffer significant harm is something less than a 'real risk.'[4]
[3] Migration Act 1958 s36(2B)(a) . SZATV v MIAC (2007) 233 CLR 18; SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
[4] Migration Act 1958 36(2B)(b) MIAC v MZYYL [2012] FCAFC 147.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants meet the criteria set out in either of s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicants’ migration history
According to the delegates decision dated 3 August 2016, the applicant’s migration history is as follows:
[June] 2009
Arrived in Australia as the holder of a [temporary] visa. Departed Australia on 5 occasions.
15 May 2012
Refused a Skilled Graduate Subclass 485 visa – Section 48 barred
[July] 2014
Migration Review Tribunal affirmed the department’s decision.
31 March 2016
Judicial Review result – Client withdraw
2 May 2016
Section 351 Ministerial Intervention outcome – inappropriate to consider.
20 May 2016
Applied for a Protection (Class VA) visa; associated Bridging visa granted.
Country of Reference
The applicant claims to be citizen of the Republic of India. The applicant provided the department with a copy of his Indian passport which was placed on the applicants file.[5] In addition the applicant provided his facial image and fingerprints as personal identifiers to the department.[6]
[5] Delegates decision dated 3 August 2016 @ p.3 [information deleted]
[6] Ibid
Accordingly, based on the applicants oral evidence to the Tribunal and the documentation provided to the department, the Tribunal accepts and finds that the applicant was born on [date] in [City 1], Haryana, India and that his nationality is Indian. There is no evidence to suggest that he has a right to enter and reside, whether temporarily or permanently, in any other country. Therefore, based on the applicants passport, the Tribunal finds that he is an Indian citizen and accordingly the applicant’s protection claim will be assessed against India as the country of reference and as the 'receiving country'.
The Tribunal is therefore satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that he is not excluded from Australia's protection obligations under s36(3).
The applicant’s protection claims
The applicant’s claims are detailed in the applicant’s application for a protection visa dated 20 May 2016and are summarised in the delegate’s decision dated 3 August 2016as follows:
(a)The applicant claims that he left India to Study in Australia. He claims he cannot return to India as he is likely to ‘get serious injuries leading to death.’
(b)The applicant claims when he returned to India in February, he ‘supported his father’s political party office where there was a protest involving members of the Jatt community.’ He claims ‘the Jatt community became violent towards the community especially towards the political party he belong to.’ He claims sixty to a hundred people attacked the office the applicant was in and he was beaten up as he ran towards his home.
(c)The applicant claims the police stations were shut down due to the violent protests and police members were beaten to death and a curfew was declared in Harayana.
(d)The applicant claims ‘the same political party people who harmed him last time will harm him again.’ He claims the authorities cannot protect him at all times.
(e)The applicant claims he would be located by the political party in any state.
The Applicant’s evidence.
The first applicant’s evidence was that he was born on [date] in [City 1], Haryana, India. He states that he is a citizen of India and of the Hindu faith. His evidence is that he speaks, reads and writes Hindi and English. The applicant is not married.
The applicant’s evidence was that his father passed away in or about June 2016 and that his mother remains living in [City 1]. His father worked for [the government] and his mother was engaged in home duties. The applicant stated that he has [number of siblings who] live in Australia.
The applicant attended completed both primary and secondary school in [City 1]. The applicant attended a number of schools in his local area including primary school at [School 1] and [School 2] and secondary school at both [School 3] and [School 4].
On 19 May 2009 the applicant was granted a [temporary] visa valid until July 2011. [In] June 2009 the applicant arrived in Australia and completed a [specified] course at [Institute 1] in or about 2011. The Tribunal was not able to find any reference to [Institute 1] in Australia but nevertheless it accepts the applicant’s evidence for the purposes of this decision.
Since September 2011 the applicant has been employed as a [Occupation 1] at various businesses in Melbourne. He is currently works at [Company 1] as a [Occupation 2].
Between 2011 and 2016 the applicant returned to India on five occasions for the purposes of attending certain family reasons including his sister’s wedding and the health of his father.
The applicant claims that in or about February 2016 he returned to India for approximately one month to visit his father who’s was critically ill. He claims that his father was actively involved in the Congress party having held a high position in the party for approximately eight to ten years. He said that his father held his position with the party on a full time basis, after leaving the [government], until he was around [age] years old. As a result when he returned to India to visit his father, he went to the local Congress Party offices located on [a street] in [City 1] to visit some of the party members. The applicant did not provide the Tribunal with any evidence of his father’s involvement in the Congress Party. In addition, he did not provide any evidence in relation to his local Congress party branch such as its address and size, including the number of staff and members.
The applicant claims that as a result of his father poor health he visited the party branch offices his father belongs to as a display of support. He says that he was at the party’s office, with four other party members, when he was attacked by members of the Jattcommunity. He states that at that time they were protesting all over the state.[7] The applicant said that he and his associates were attacked at approximately 4.00pm in the afternoon when they were leaving the office. The applicant in his protection visa applicant claims that approximately 60 to 100 people attacked him. However, when asked by the Tribunal how many people were involved in the attack, the applicant was not able to say. He said that the attackers came at them from across the street. When that moved toward them, the applicant said that he ran but was caught and beaten with a stick. As a result he says he received injuries to both his head and back. He said that after the attack he was bleeding from the face and received medical treatment at the hospital. As a result of his injuries he said that his return home was delayed by two weeks while he recovered. However, the applicant did not provide any medical report in relation to his alleged injuries. In addition, the applicant did not provide any independent information in relation to the attack such as local press reports or statements by people who may have witnessed of the attack.
[7] Applicant protection vis application dated 26 May 2016 @ p.21;Department file [number] [@ f19]
The applicant says that [in] June 2016 his father was attacked by the same people for political reasons. He says that his father passed away approximately 2 days after the attack.
While the applicant’s evidence was that he does not know the identity of the people who attacked him, he says that he was attacked because of his political view and his support for the Congress Party and that he is seen as a non-resident Indian. The applicant states that he cannot return to India as the same people, who are opposed to his political party, will try to harm him in the event he returns to India.[8]
[8] Op Cit @p.22; Department file [number] [@ f18]
THE COUNTY INFORMATION
The Department of Foreign Affairs and Trade (DFAT) Country Information Report – India dated 17 October 2018 (‘the DFAT Report’) states:
‘Sikhs[9]
3.16 Sikhism is a monotheistic religion founded in the Punjab region (now part of both India and Pakistan) in the 15th century. Sikhs consider themselves disciples of the Ten Gurus, beginning with Guru Nanak (1469-1539) and ending with Gobind Singh (1666-1708). According to the 2011 census, the Sikh population of India was approximately 19 million, 1.7 per cent of the total population at that time. Most Sikhs (75 per cent) live in Punjab, where they comprise around 55 per cent of the population.
3.17 One of the points of difference between Sikh groups is the extent to which they support the creation of an independent Sikh state known as ‘Khalistan’. The 1966 creation of the Punjabi-speaking Sikh majority state of Punjab went some way to addressing these demands. During an internal struggle within the Sikh community in 1982, separatist leader Jarnail Singh Bhindranwale and his followers moved into the Golden Temple complex in Amritsar. In June 1984. The Indian government ordered the army to eject Bhindranwale and his followers from the complex in an offensive known as ‘Operation Blue Star’. The army bombarded the Golden Temple complex, inflicting serious damage. Bhindranwale and many of his supporters were killed during the operation.
3.18 In retaliation for Operation Blue Star, two of then-Prime Minister Indira Gandhi’s Sikh bodyguards assassinated her at her home in New Delhi in October 1984. In the days that followed, mobs seeking revenge for the assassination attacked Sikh homes and businesses, including in New Delhi. Approximately 3,000 people, mostly Sikhs, were killed in the violence. Security forces carried out further operations to suppress Sikh separatism during the late 1980s, during which allegations emerged of torture, extrajudicial killings and deaths in custody carried out by security forces.
3.19 Sources agree that, since the late 1980s and early 1990s, Sikhs have lived peacefully in India and the majority of Sikhs do not experience societal discrimination or violence. Sikhs who advocate for an independent ‘Khalistan’ may be subject to attention by authorities. DFAT assesses that Sikhs in India generally face a low level of official and societal violence and discrimination.’
[9] the DFAT Report @ p.15
The country information[10] notes that the Jatts are traditionally rural ethnic group of northern India and Pakistan. In the early 21st century the Jatts constituted about one-fourth of the populations of Punjab and Haryana; nearly 10 percent of the population of Balochistan, Rajasthan, and Delhi; and from 2 to 5 percent of the populations of Sindh, Khyber Pakhtunkhwa, and Uttar Pradesh. The Jatts of India are mostly divided into two large communities of about equal size one Sikh, concentrated in Punjab, and the other Hindu.
[10] >
The Reservation Riots by Jatts was a series of violent protests in February 2016 by Jat people of North India, especially those in the state of Haryana, which ‘paralysed the State for 10 days.’[11] The rioters sought inclusion of their caste in the Other Backward Class (OBC) category, which would make them eligible for affirmative action benefits. Besides Haryana, the protests also spread to the neighboring states, such as Uttar Pradesh,[12] Rajasthan,[13] and the National Capital.
[11] Jats stage ‘jail bharo’ protest in Jind. The Hindu (New Delhi) 2 May 2016, 'We are prepared to fight for our rights': Jat agitation spreads to UP. (Meerut) Hindustan Times 20 February 2016
[13] ‘Jat bodies blame Haryana govt.’ The Times of India 27 May 2016 >
Police and onlookers describes the initial phase of the protests as "peaceful" but it later transformed into violent riots lead by Jatt community, especially in the city of Rohtak.[14] Starting on 12 February, the Jatts organized non-violent protests for reservation by blocking railway lines and roads, while non-Jats opposed to their demands organized counter-protests. On 18 February, a group of non-Jatts protesters clashed violently with a group of lawyers protesting against 2016 JNU sedition controversy, mistaking the lawyers for Jatts. Later on, they also came into conflict with the Jat students.[15] On the same day, the police allegedly beat up some Jat students in Rohtak, while trying to open a blockade. Police also raided a Boy's hostel, and reportedly assaulted the Jat students, an occurrence which was "captured on camera and circulated over social media". Following these incidents, several incidents of inter-caste violence took place across Haryana.[16]
[14] Jat quota stir: How violence started; a protest on JNU row, hostel raid by cops (New Delhi). The Indian Express. 15 April 2019, ibid
[16] ibid
The government of Haryana had approved the Haryana Backward Classes (Reservation in Services and Admission in Educational Institutions) Bill on March 29, 2016, and notified the Act on May 13, 2016.[17] The enacted Bill enlists the Jatts of Hindu, Sikh and Muslim faiths, Bishnois, Tyagis, and Rors in the recently sculpted Backward Classes (C) category, making them eligible for 10% reservation in class 3 and 4, and 6% reservation in class 1 and 2 jobs. On May 26, 2016, the Punjab and Haryana High Court ruled out against the Bill.[18]
[17] ‘Jat reservation: Haryana govt set to notify new quota law.’ Hindustan Times (Chandigarh) 16 April 2016. ‘HC stay on quota for Jats in Haryana.’ The Tribune (Chandigarh) 27 May 2016 type="1">
An article dated 20 February 2016[19] in relation to the Jatt protests demanding reservation in jobs and education in Haryana notes that in the course of their demonstrations the protestors unleashed a reign of violence across the state. The article notes that the Jatt quota agitation crippled Haryana for the second time in less than a year but states that the protest in February 2016 were more violent. The article states that:
(a)This quota issue goes back to the 1990s.
(b)The Jatts are primarily farmers. Traditionally, they are not considered backward. They are economically and politically well off. Jatts are 29 per cent of Haryana's total population.
(c)Jatts are demanding to be declared OBC (other backward class), which will help them secure the 27 per cent OBC reservation in government jobs.
(d)Jatts have rejected the Special Backward Class quota offered by the Khattar government on the basis of their economic status.
(e)the Supreme Court had made it clear at a plea hearing of the Jatts, that caste alone cannot be the reason to approve reservation for a certain community. The court said that to determine backwardness of a community, social backwardness should be the prime concern. The Supreme Court capped caste based reservation up to 50 per cent and if the Haryana government succumbs to Jatt pressure and add Jatt quota to the present OBC reservation (27 per cent plus SC, ST quota of 22.5 per cent) it will be flouting Supreme Court's rules.
[19] India Today ‘Why Jats are protesting in Haryana: All you need to know’ dated 20 February 2016; >
The article[20] detailed a brief history of the Jatt claim and noted that ever since the implementation of Mandal Commission report in 1991, Jatts have been opposing mention in the OBC list of the Union government and other states. It stated that:
(a)In 1997, Jatts in Haryana, Uttar Pradesh and Madhya Pradesh demanded them to be included in the central OBC list. It was reject by the National Commission for Backward Classes.
(b)In 2012, a survey was conducted in six states on the directives of the commission to review the economic and social status of the Jatts. States like Haryana and Uttar Pradesh were also included in the survey. In Haryana, the survey conducted compared the Jatts to higher castes.
(c)During 2004 Haryana Assembly election campaign, Congress's Bhupinder Singh Hooda promised Jatts a quota. Hooda won the election.
(d)Ahead of Assembly election in 2014, Hooda included Jats and four other castes in Specially Backward Class (SBC) quota.
(e)However, in July 2015, the Punjab and Haryana High Court rejected the Hooda government's plan to give 10 per cent reservation to the Jatts after the Supreme Court refused the state government's quota recommendations.
(f)Centre's decision to include Jatts from 9 states - Haryana, Uttar Pradesh, Madhya Pradesh, Rajasthan, Gujarat, Himachal Pradesh, Uttarakhand and Bihar - in OBC list rejected by the Supreme Court in March, 2015.
ASSESSMENT OF CLAIMS AND FINDINGS
[20] ibid
Credibility
When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[21]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[22]
[21] s.5AAA Migration Act 1958.
[22] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[23] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
[23] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482
If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[24] However, such a benefit 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.
Accepted facts
[24] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196
Having considered the applicant’s evidence the Tribunal accepts and finds that the applicant:
(a)was born on [date] in [City 1], Haryana, India.
(b)is a citizen of India and of the Hindu faith.
(c)speaks, reads and writes Hindi and English.
(d)is not married.
(e)his father passed away in or about June 2016 and worked for the [government]. His mother remains living in [City 1].
(f)has [number of siblings] who live in Australia.
(g)attended completed both primary and secondary school in [City 1].
Applicants Relevant Convention Grounds
The applicant submits that his claim falls within the scope of s.5J(1)(a) of the Act by reason of his actual or imputed political opinion as a person as a member of the Congress Party. A political opinion need not be an opinion that is actually held by a refugee. It is sufficient that such an opinion is imputed to the applicant by the persecutor.[25] In Saliba v MIMA[26] the Court held:
... for Convention purposes, a claimant’s political opinion need not be expressed outright. It may be enough that a political opinion can be perceived from the claimant’s actions or is ascribed to the claimant, even if the claimant does not actually hold the imputed opinion.
[25] MIEA v Guo (1997) 191 CLR 559 at 571 referring to Chan v MIEA (1989) 169 CLR 379 at 416 per Gaudron J and at 433 per McHugh J.
[26] (1998) 89 FCR 38 at 49.
In MIMA v Y[27], the Court, when considering the ‘political opinion’ under the Refugee Convention stated that ‘[t]he words ‘political opinion’ are ordinary words of the English language and have not been the subject of judicial exposition limiting their meaning in the context of the Refugees’ Convention’.[28] The Court considered the Tribunal’s finding that the applicant’s stance against criminal activity by police was an expression of a political opinion and held:
‘In the context of the Refugees’ Convention, an opinion could be thought to be a political opinion if it were such as to indicate that its holder ... held views which were contrary to the interests of the State, including the authorities of the State. A person may be regarded as an enemy of the State by virtue of holding and propounding views which are contrary to the views of the State or its Government, or which are antithetic to the Government and the instruments which enforce the power of the State, such as the armed Forces, Security Forces and Police Forces or which express opposition to matters such as the structure of the State or the territory occupied by it and like matters.’
[27] MIMA v Y [1998] FCA 515 (Davies J, 15 May 1998) at 5.
[28] [1998] FCA 515 (Davies J, 15 May 1998) at 4.
In circumstances where the applicant claims he fears being harmed as a result of his political views and that he and his family support the Congress Party, the applicants claim does fall within the scope of s.5J(1)(a) of the Act.
In addition, the applicant submits that his claim falls within the scope of s.5J(1)(a) of the Act by reason of his membership of a particular social group. To be a member of a social group the applicant must shares a certain characteristic or element that unites him with a particular group and enables the group to be set apart from society at large. That is, not only must the applicant with his group exhibit some common element, it must unite them, making them a cognisable group within their society.[29] In this case the applicant states that, having lived in Australia since 2009, he is seen in India as a non-resident Indian. The Tribunal has some reservations that the mere fact he has lived overseas since 2009 constitutes a characteristic or element that unite him with a particular social group nevertheless for the purposes of this decision the tribunal is prepared to accept that the applicant is a member of a particular social group.
Applicant’s well-founded fear.
[29] Applicant A v MIEA (1997) 190 CLR 225 per Dawson J at 241, McHugh J at 264-266 and Gummow J at 285.
In Chan v MIEA[30] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[31]
[30] (1989) 169 CLR 379 at 396.
[31] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case based on the evidence of the applicant the Tribunal accepts that the applicant has a subjective fear of being harmed of being persecuted in the event that he returns to Iran.
However, to hold a ‘well found fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J [32]stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.’
[32] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397
In MIEA v Guo, the Court stated that: [33]
‘Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’
The Jatt Protest and Attack.
[33] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.
Based on the available country information the Tribunal accepts that there were protests by the Jatt community in Haryana in February 2016 as claimed by the applicant. However, DFAT assesses[34] that leaders and members of opposition political parties do not face official or societal discrimination. It reports that while the risk of political violence between rival supporters increases during parliamentary and state elections, in general, elections in India are peacefully conducted.
[34] DFAT Report @ p.16
In this case the Jatt protests were not directed specifically toward the Congress Party or its supporters. Rather, the protest by the Jatt community was a demand that they be declared OBC so that they can secure the 27 per cent OBC reservation in government jobs. That it was a broad protests again the community at large and not directed toward any one particular group or individual. The Congress party was not even in power at the time of the protests. The Bharatiya Janata Party (BJP) is currently in power in Haryana with Manohar Lal Khattar as its current Chief Minister. In fact it is reported that the Congress Party are unlikely to gain power in the near future due to it having difficulty in fielding candidates for many seats in the lead up to coming elections.[35] As such there appears little or no reason for the applicant or other Congress members to be persecuted as claimed by the applicant.
[35] The Big Battle, ‘Problem for Congress in Haryana, senior leaders reluctant to fight LS polls’ 21 March 2019 by Aurangzeb Naqshbandi Hindustan Times, New Delhi, >
The applicant’s evidence in relation to the attack upon him and his colleagues was so vague and lacking in any detail that the Tribunal found it to be unbelievable and lacking in credibility. The fact that the applicant did not provide any documentation to support his evidence in relation to both the attack and his alleged injuries and as a result of the unreliable nature of his oral testimony, the Tribunal does not accept that the attacked occurred and that he was injured as claimed. Accordingly, the Tribunal finds that there is no real chance the applicant will be seriously harmed in the event that he returns to India.
In addition, the applicant did not provide any supporting evidence or provide any specific details in relation to the alleged attack upon his father. In addition, his evidence in relation to the attack on his father was so vague and lacking in detail that the Tribunal found it to lack any credibility. As a result the Tribunal also does not accept the applicant’s evidence in relation to the alleged attack upon his father. Accordingly, the Tribunal finds that there is no real chance the applicant will be seriously harmed in the event that he returns to India by reason of any attack upon his father as claimed.
In the event, if the Tribunal was to accept that the applicant was attacked as claimed (which it specifically does not), the Tribunal notes that the available country information that refers to the fact that the Jatt community protest in February 2016 was in relation to their demand to be declared OBC and not against the applicant or the Congress Party or any of its members as claimed by the applicant. As such, the applicant was not targeted by the Jatt Community by reason of his membership or association with the Congress Party or by reason of the fact that he is considered a non-Indian as claimed. Rather, the attack, if it did occur as described by the applicant, was as a result of the applicant being in the wrong place at the wrong time and not as a result of him being persecuted as claimed. Accordingly, the Tribunal finds that the attack was not specifically directed toward the applicant and as a result there is no real chance the applicant will suffer serious harm in the event he returns to India.
Finally, the applicant’s evidence was that he was not able to identify any of the members of the Jatt Community who attacked him and was not able to inform the Tribunal how he would be identified by his attackers in the event that he returns to India. Give the passage of time and the fact that the protest by the Jatt community was not specifically against the Congress party of the applicant himself, the Tribunal finds it unbelievable that he would be identified and persecuted by members of the Jatt community in the event that he returns to Indian.
Finally, the applicant claims that he suffered persecution by reason of being identified as a ‘non-Indian.’ That is as person who has lived away for his community for a relatively long period of time. The applicant did not specifically say how he was persecuted as a result of being considered non-Indian other than he felt isolated for the rest of the community. While the Tribunal accepts that a person may suffer some discrimination as a result of him not being present and involved in his local community, it does not constitute persecution. In this case the applicant did not provide any evidence of persecution as a result of being considered non-Indian. As such the Tribunal finds there is no real chance he will suffer serious harm in the event he returns to India.
Accordingly, in all the circumstances the Tribunal finds that the applicant does not have well-founded fear of persecution based on his claim that he fears being harmed as a result of the attack on him by the Jatt community as a member of the Congress party and as a result of his political views or as a non-Indian person in the event he returns to India. As such, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
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 the applicant will suffer significant harm.
The applicant claims that he satisfies the requirements under s.36(2)(aa) by reason that he faces a real risk of significant harm including deprivation of life, torture, cruel, inhuman and degrading treatment or punishment. In particular, the applicant claims that there is a real risk he will suffer significant harm in the event he is returned to India by reason that he will be the victim of an honour killing.
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 Convention definition.[36]
[36] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].
Therefore, for the reasons provided above the Tribunal does not accept the evidence of the applicant, as such there is no real risk that the applicant will suffer significant harm in India and as such he does not satisfy s.36(2)(aa) in this regard.
At no stage did the applicant advance any other reason, such as his race and nationality in his written or oral claims that he is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.
CONCLUSION
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 the Act for the reasons mentioned in s.5J(2) Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
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).
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
Jason Pennell
Senior Member
‘Jat agitation finds echo in western UP’ The Times of India 21 February 2016,
Key Legal Topics
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Immigration
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Administrative Law
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Statutory Interpretation
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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Citations1613191 (Refugee) [2019] AATA 5750
Cases Citing This Decision0
Cases Cited13
Statutory Material Cited0
MIAC v MZYYL [2012] FCAFC 147SZATV v MIAC [2007] HCA 40SZFDV v MIAC [2007] HCA 41