1613191 (Refugee)

Case [2019] AATA 5750

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…

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AGLC
1613191 (Refugee) [2019] AATA 5750
Case
[2019] AATA 5750
Decision Date

CaseChat Overview and Summary

This decision concerns an application for a protection visa by an individual from India. The applicant claimed to have been attacked by members of the Jatt community due to his affiliation with the Congress Party and his perceived status as a "non-Indian." The dispute centred on whether these claims constituted a well-founded fear of persecution, engaging Australia's protection obligations. The matter was before the Tribunal.

The Tribunal was required to determine whether the applicant had a well-founded fear of persecution based on his political opinion or membership in a particular social group, specifically as a member of the Congress Party or as a "non-Indian." Additionally, the Tribunal considered whether there were substantial grounds for believing that the applicant faced a real risk of significant harm, including deprivation of life, torture, or cruel, inhuman, and degrading treatment or punishment, should he be removed from Australia to India, under the complementary protection provisions.

The Tribunal found that the Jatt community's protests in February 2016 were a broad demand for OBC status and not specifically directed at the Congress Party or its supporters. It noted that the Congress Party was not in power at the time of the protests, diminishing the likelihood of targeted persecution. Crucially, the Tribunal found the applicant's evidence regarding the attack upon him and his father to be vague, lacking in detail, and therefore not credible. The absence of supporting documentation further undermined his claims. Consequently, the Tribunal concluded there was no real chance the applicant would suffer serious harm upon return to India, either from the alleged attack or by reason of being considered "non-Indian," as the latter did not amount to persecution. The Tribunal also found no real risk of significant harm under the complementary protection provisions, for the same reasons regarding the lack of credible evidence.

Accordingly, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under section 36(2)(a) of the Act, nor did he satisfy the criterion under section 36(2)(aa). The decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 protectionIn 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.CONCLUSIONFor 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).

Ratio Decidendi

Legal Principle Established

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