1613303 (Refugee)

[2019] AATA 5883

1613303 (Refugee) [2019] AATA 5883 (30 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1613303

COUNTRY OF REFERENCE:                   India

MEMBER:Linda Symons

DATE:30 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 30 June 2019 at 9:00am

CATCHWORDS

REFUGEE – protection visa – India – political opinion – Congress Party – particular social group – criminal gangs – physical violence – refusal to use and sell drugs – fear of killing – state protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65
Migration Regulations 1994, Schedule 2

CASES

MZAFZ v MIBP [2016] FCA 1081

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 29 July 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of India, arrived in Australia [in] June 2009 as the holder of a subclass 572 Student visa. On 24 November 2010, he was granted a subclass 573 Student visa. He departed Australia [in] June 2011 and returned [in] July 2011. He departed Australia [in] February 2012 and returned [in] March 2012. On 5 November 2012, he applied for a subclass UC 457 (Temporary Work – Skilled) and was granted an associated Bridging visa. On 25 February 2013, his visa application was refused by the Department of Home Affairs (the Department).

3. On 12 March 2013, the application lodged an application for review with the Migration Review Tribunal (MRT) and on 11 April 2014 the MRT affirmed the decision made by the Department. On 6 May 2014, he made a request for Ministerial intervention. His Bridging visa expired on 9 May 2014 and he remained in Australia as an unlawful non-citizen. On 3 June 2014, he was granted the first of a series of Bridging visas the last of which was valid until 22 May 2015. His request for Ministerial intervention was declined on 8 April 2015.

4. The applicant applied for a Protection visa on 18 May 2015. The delegate refused to grant the visa on 29 July 2016 on the basis that he is not a person in respect of whom Australia has any protection obligations. On 22 August 2016, he lodged an application for review with the Tribunal.

5. The applicant appeared before the Tribunal on 17 May 2019 to give evidence and present arguments.  

6. The issues that arise on review are whether the applicant is owed Australia's protection under the refugee criterion or under the complementary protection criterion.

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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.  

11. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

12. 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 AND FINDINGS

13. The applicant’s claims in his application for a Protection visa are summarised as follows:

    ·He was born on [date] in Punjab Province in India. He belongs to the Jatt Kikh religion “with the political background”. His father was [an official of] the Congress party in the [named] region of Tarn Taran district.

    ·In 1984, there were anti-Sikh riots against Sikhs in India following the assassination of Indira Gandhi by her Sikh bodyguards. His father was in the Congress Party and other Sikhs in his district tried to kill them. They moved to Amritsar and commenced a new life there.

    ·His father was shot during that period and was able to recover after spending several weeks in recovery. His mother started working as an [occupation 1] at a [work] in Amritsar. His father was unemployed and spent his time at home. He became depressed and started taking drugs and alcohol.

    ·His mother sent him to Australia in 2009 after he completed High School for a better future. His father became addicted to drugs. He obtained drugs from his friends who were drug dealers. His father passed away in 2011.

    ·He went to India to visit his mother. During his visit, he was tortured by the people who supplied drugs to his father. They asked him to use and sell drugs. When he refused, they warned him that if he did not do as they say they would kill him or cause trouble for his mother. If he returns to India, he will be abused by these people and if he refuses to do as they ask they will kill him.

    ·Punjab is in the grip of drugs and his mother has told him not to return to Punjab Province. If he tries to move to another part of India he will be discriminated against for being a Punjab Sikh.

14. The applicant has provided to the Department copies of the biodata page of his Indian passport and his NSW Driver’s Licence.

15. The applicant attended an interview with the Department on 15 June 2016. During that interview, he made the following new claims:

    ·About 80% of the population of Amritsar are on Heroin or other drugs. Two of his maternal uncles attacked him. They sell drugs.

    ·His father was in the Congress Party. He fears being targeted by people from the Shiromani Akali Dal Party, even though he is not in a political party, because of his father’s political position. 

    ·In 2008, he was threatened by drug dealers. He and his father went to the Police Station. The Police said they would investigate the matter but did not do much because of the “system”. The Punjab political system and the Punjab establishment support drug dealing in Punjab. He does not want to return to India as he does not feel safe there. He will be forced to join a drug gang. He is afraid of his relatives who are drug dealers and if he refuses to join them they will torture him and “put a false case” against him. Other gangs may also try to recruit him.

    ·If he relocates within India, his uncle and cousin’s gang will follow him. He does not know anything about other Indian States and does not feel safe in other States as his relatives will find him. He has never taken or sold drugs.

16. The applicant has lodged with the Tribunal a copy of the Department’s Decision Record dated 29 July 2016.and a copy of his Indian passport.

    Receiving country

17. The applicant claims to be a citizen of India and has provided a copy of his Indian passport to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of India. The Tribunal finds that India is his receiving country for the purpose of assessing his claims for protection.

    Third country protection

18. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Assessment of claims

19. The applicant gave evidence that his application for a Protection visa was prepared by him and the information in his visa application is true and correct. He stated that he is satisfied that his application for a Protection visa is accurate and complete.

20. During the hearing, the Tribunal discussed with the applicant his family, education, employment, where he lived in India, events that occurred in India and why he fears returning to India. His oral evidence to the Tribunal was significantly different to his written claims in his visa application and his evidence at his interview with the Department. He made new claims before the Tribunal. The Tribunal formed the view that he was manufacturing his evidence as he was giving it. The Tribunal finds that he is not a witness of truth for the following reasons:

21. First, in his visa application, the applicant claimed that in 1984 there were anti-Sikh riots against Sikhs in India following the assassination of Indira Gandhi. He claimed that his father was in the Congress Party and other Sikhs in his district tried to kill them.  He claimed that they moved to Amritsar and commenced a new life there.

22. During the hearing, the applicant gave a different version of events that was inconsistent with his written claims. He initially stated that he lived in Amritsar with his family from 1990 to 2009. He then stated that he was born in a village in [year] and his family moved to Amritsar after his birth. In his visa application, in response to question 82 – Previous addresses, he stated that he lived at Amritsar from [his birth year] to June 2009.

23. Irrespective of whether the applicant moved to Amritsar in [his birth year] or in 1990, it was not following the riots in 1984. The Tribunal would expect that if Sikhs in his district tried to kill them in 1984 they would have left the village as soon as possible and not wait 4 to 6 years to do so. He made no mention, during the hearing, of his father being a member of the Congress Party or of Sikhs trying to kill his family despite being asked a number of questions and being given a number of opportunities to do so. These issues raise concerns in relation to his credibility and the veracity of these claims

24. Second, in his visa application, the applicant claimed that after moving to Amritsar his father was shot and was able to recover after spending several weeks in recovery. He claimed that his mother worked as [an occupation 1] and his father was unemployed and spent his time at home. He claimed that his father became depressed and started taking drugs and alcohol. He claimed that his father obtained drugs from his friends who were drug dealers and became addicted to drugs. His claimed that his father passed away in 2011.

25. During the hearing, the applicant gave a different version of events that was inconsistent with his written claims. He stated that his father was [also an occupation 1] and worked (in Amritsar) until 2004 or 2005. He gave evidence that his father was suffering from a mental illness including [two conditions] and did not want to leave the house. He stated that he did not seek treatment for his mental health problems. When ask why his father stopped working, he initially stated that his father was tortured by family members and could not make it to work. When asked why family members tortured his father, he stated that there was a long history of conflict between his father and his mother’s [brothers] and they always created problems for his father. He then changed his evidence and stated that his mother wanted his father to stay at home and not leave the house and that is why he stopped working.  

26. The applicant gave evidence that his father was tortured physically and mentally. He stated that sometimes when his father was outside the house a group of people would come up to him and beat him. He stated that they tortured him mentally, abused him, asked him for money and threatened to kill him. When asked why people would do that to his father, he responded that it was a family problem that started from the time his father married his mother. He stated that his mother’s family did not like his father and his family.

27. The Tribunal asked the applicant whether his father reported these incidents to the Police. He responded that his father went to the Police many times. He stated that his maternal uncles have connections with the Ministers so the Police Officers did not listen to his father. When asked if his mother did anything to stop her brothers from abusing his father, he responded that his mother tried to speak to them but they did not listen to her. He stated that they tried to harm his mother. He stated that they “thrash them to kill them and harm them”.

28. The Tribunal asked the applicant whether his father had any other problems besides his problems with his mother’s family members and his mental health problems. He responded that the local Police would always go to his house and threaten his father. He stated that they sometimes took his father to the Police Station and detained him for one or two weeks for no reason. When asked why they did that, he responded his mother’s brothers told them to do that.

29. When asked whether he had told the Tribunal about all the problems his father had, the applicant answered yes. He then stated that in 2005 his father was stabbed by someone in the back six or seven times. He stated that he was in hospital for 2 or 3 months. He stated that his father said he was stabbed by his mother’s brothers when he was returning home from work at night. When asked why he was working at night time if he was [an occupation 1], he responded that he was at [work] at that time and that is what he heard. He stated that he did not know why his father was coming home at night time.  

30. The Tribunal has a number of concerns with the applicant’s evidence. He made no mention of his father being shot but instead made a new claim that his father was stabbed in the back by his brothers-in-law. He made no mention of his father consuming alcohol and drugs and becoming addicted to drugs. Instead he made new claims that his father was “tortured” by his brothers-in-law and groups of people would beat him, abuse him, ask him for money and threaten to kill him. He made further new claims about the Police always going to his house, threatening his father and detaining him for one or two weeks at a time for no reason other than being requested to do so by his maternal uncles.

31. The Tribunal finds these claims to be implausible. Further, the applicant’s failure to mention these claims in his visa application and during his interview with the Department raises concerns in relation to his credibility and the veracity of these claims.

32. Third, in his visa application, the applicant claimed that after coming to Australia in 2009 he returned to India to visit his mother. He claimed that, during his visit, he was tortured by the people who supplied drugs to his father and they asked him to use and sell drugs. He claimed that, when he refused, they warned him that if he did not do as they say they would kill him or cause trouble for his mother. He claimed that, if he returns to India, he will be abused by these people and if he refuses to do as they ask they will kill him.

33. During the hearing, the applicant gave a different version of events that was inconsistent with his written claims. He made no mention of his father using drugs or that he was tortured by the people who supplied drugs to his father or that drug dealers asked him to use and sell drugs or that he was threatened by the drug dealers that he or his mother would be harmed. When asked about problems he had in India, he only referred to his maternal uncles and cousins disliking his father and causing problems for that reason. He made no mention of drugs in relation to them. When asked if he had any other problems in India, he responded no. This raises concerns in relation to his credibility and the veracity of these claims.  

34. Fourth, during his interview with the Department, the applicant made a number of new claims. He claimed that in 2008 (before he came to Australia), he was threatened by drug dealers. He claimed that he and his father went to the Police Station. He claimed that the Police said they would investigate the matter but did not do much because of the “system”. He claimed that the Punjab political system and the Punjab establishment support drug dealing in Punjab. He also claimed that two of his maternal uncles, who sell drugs, attacked him.

35. During his interview with the Department, the applicant also made new claims that he does not want to return to India as he does not feel safe there. He claimed that he will be forced to join a drug gang. He claimed that he is afraid of his relatives who are drug dealers and if he refuses to join them they will torture him and “put a false case” against him. He claimed that other gangs may also try to recruit him. He claimed that if he relocates within India, his uncle and cousins’ gang will follow him. He claimed that he does not know anything about other Indian States and does not feel safe in other States as his relatives will find him.

36. During the hearing, the applicant gave a different version of events that was inconsistent with the new claims he made during his interview with the Department. When asked about the problems he had in India, he responded that since he was in High School his maternal uncles and cousins would go to his house and threaten his parents, brother and him. When asked why they did that, he responded that they did not like his father and always tried to harm him, abuse them and kill them. The Tribunal pointed out that they had plenty of time and opportunities to kill him if that was their intention. He responded that his parents sent his brother to Australia in 2006 and he stayed at a hostel until he completed his studies and then came to Australia. He stated that they tried to kill him “a lot of times”. 

1. The Tribunal asked the applicant to clarify his evidence that they tried to kill him “a lot of times”. He responded that they would sometimes pick him up from the college but they did not do it. He stated that “they cannot do it”. When asked if he had any other problems in India, he responded no.

2. The Tribunal asked the applicant what he thought would happen if he returned to India. He responded that he does not feel safe in India. He stated that he went to India in 2011 when his father passed away and his uncles and cousins would always go to his house and try to harm him or do the same things they did to his father in the past. The Tribunal asked him if there was any reason why he could not relocate somewhere else in India away from these family members. He responded that if he tries to relocate to another State they will follow him there. When asked why they would do that, he responded that they just want to harm or kill them.

3. The Tribunal pointed out to the applicant that his relatives did not harm or kill him in Amritsar and questioned why they would do so elsewhere. He responded that they tried to harm him in Amritsar but maybe they could not make it. When asked how they tried to harm him, he responded that they sometimes went to his college.

4. The Tribunal has a number of concerns with the applicant’s evidence. He made no mention in his visa application of being threatened by drug dealers in 2008 and reporting this to the Police prior to him coming to Australia in 2009. He also made no mention in his visa application that his maternal uncles and cousins were drug dealers, were in a gang and that two of his maternal uncles attacked him. The Tribunal would expect that he would have wanted to put forward his best case for protection before the Department and would have mentioned these matters in his visa application. During the hearing, the Tribunal asked him several times how his uncles harmed him and he made no mention of them attacking him.   

5. The Tribunal finds it implausible that the applicant’s maternal uncles would abuse him and his brother and want to harm and kill them just because they do not like their father. Further, his evidence that he stayed at a hostel until he completed his studies and then came to Australia is not consistent with his earlier evidence that he lived with his parents in their family home in Amritsar  until he left India [in] June 2009 to travel to Australia. These issues raise concerns in relation to his credibility and the veracity of these claims.

6. Fifth, during his interview with the Department, the applicant made new claims that he fears being targeted by people from the Shiromani Akali Dal Party, even though he is not in a political party, because of his father’s political position. He claimed that his father was in the Congress Party.

7. During the hearing, the applicant made no mention about his father being involved in any political party. He also did not raise any concerns about being targeted by people from the Shiromani Akali Dal Party. The only concern he had about returning to India was in relation to his maternal family members who did not like his father. The Tribunal would expect that if this was a genuine concern he would have mentioned it in his visa application and during the hearing. His failure to do so raises concerns in relation to his credibility and the veracity of this claim.

8. Sixth, the applicant’s conduct is not consistent with his claims. If he was threatened by drug dealers in 2008 and again when he returned to India in 2012 and attacked by his two maternal uncles and fears returning to India for these reasons or, alternatively, if he has feared harm from his maternal family since he was in High School and fears returning to India because his maternal family may harm or kill him, the Tribunal would expect him to have obtained some immigration advice and applied for a Protection visa as soon as possible after his arrival in Australia [in] June 2009. However, he did not apply for a Protection visa until 18 May 2015.

9. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 29 July 2016. It indicates that he applied for a subclass 457 (Temporary Work – Skilled) visa on 5 November 2012. This application was refused by the Department on 25 February 2013. He lodged an application for review of that decision with the Migration Review Tribunal (MRT) on 12 March 2013. The MRT affirmed the Department’s decision on 11 April 2014. On 6 May 2014, he made a request for Ministerial intervention. His Bridging visa ceased on 9 May 2014. He remained in Australia as an unlawful non-citizen between [dates in] May 2014 and [June] 2014 when he was granted another Bridging visa. On 8 April 2015, his request for Ministerial intervention was unsuccessful. He then applied for a Protection visa on 18 May 2015.

10. The applicant’s delay in applying for a Protection visa and his immigration history raises concerns for the Tribunal that he applied for a Protection visa as a last resort to extend his stay in Australia and not because he is in need of protection. The Tribunal raised this as an issue with the applicant. He responded that he does need protection.  The Tribunal does not find his response to be convincing.

11. The Tribunal raised as an issue with the applicant the significant inconsistencies in his claims and evidence between his visa application and his interview with the Department and the Tribunal hearing and its concerns in relation to his credibility and the veracity of his claims. He responded that what he told the Tribunal was the truth. He stated that his father went through a hard time and if he returns to India his maternal uncles and cousins will harm him. He stated that he does not feel safe in India. 

12. The Tribunal raised as an issue with the applicant the fact that his claims before the Tribunal, at best, was that he feared harm from family members because of a family dispute and that it did not think that he met the criteria for a Protection visa. He responded okay.

    Other considerations

13. The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility.The Tribunal has also had regard to the DFAT Country Information Report on India and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.

    Section 438 Certificate

14. The Tribunal informed the applicant that his file from the Department contained a Certificate under s.438 of the Act and it related to the non-disclosure of information contained on two pages in the file. The Tribunal informed him that the Certificate was issued on the basis that it was contrary to public interest to disclose the information because it relates to internal working documents and business affairs. The Tribunal informed him that the information subject to the s.438 Certificate relates to details of identification tests undertaken in relation to him and a checklist on whether information should be disclosed to him. The Tribunal informed him that the Certificate did not appear to be valid. 

15. The Tribunal invited the applicant to make submissions on the validity of the s.438 Certificate. He responded that he did not get the Certificate. 

16. In light of the Federal Court decision in MZAFZ v MIBP[1], which considered a s.438 Certificate with similar wording, the Tribunal finds that the s.438 Certificate is not valid as it does not specify a reason that could form the basis for a claim to public interest immunity.

    Findings

    [1] MZAFZ v MIBP [2016] FCA 1081

17. Having considered all of the applicant’s claims and all the evidence, the Tribunal finds that the applicant is not a credible or reliable witness. The Tribunal finds that he fabricated his material claims for the purpose of obtaining a Protection visa.

18. The Tribunal accepts that the applicant was born on [date] at [a named town] in the State of Punjab in India. The Tribunal accepts that his parents were [occupation 1s] in Amritsar. The Tribunal accepts that his father passed away in 2011. The Tribunal accepts that his mother lives in India. The Tribunal accepts that he has an older brother who lives in Australia and is an Australian citizen. The Tribunal accepts that his mother has visited him and his brother in Australia for extended periods of time.

19. The Tribunal accepts that the applicant’s father suffered from a mental health illness, including [two conditions], but did not seek medical treatment for his illness. The Tribunal accepts that his mother asked his father to stop working for this reason. The Tribunal does not accept that his father stopped working because his maternal uncles tortured him and he could not make it to work. The Tribunal accepts that his mother’s family did not like his father and did not get along with him.

20. The Tribunal does not accept that, following the assassination of Indira Gandhi in 1984, Sikhs in his district tried to kill them and they were forced to move to Amritsar and commence a new life there. The Tribunal does not accept that his father was shot during that period and spent several weeks in recovery. The Tribunal does not accept that his father was thereafter unemployed, spent his time at home and started taking drugs and alcohol. The Tribunal does not accept that his father became a drug addict and obtained drugs from drug dealers.

21. The Tribunal does not accept that when the applicant returned to India in 2012, to visit his mother, he was tortured by the people who supplied drugs to his father, asked to use and sell drugs and when he refused they warned him that if he did not do as they say they would kill him or cause trouble for his mother.

22. The Tribunal does not accept that two of the applicant’s uncles attacked him. The Tribunal does not accept that his maternal uncles and cousins are drug dealers and are in a gang. It follows that the Tribunal does not accept any of his claims that flow from this.

23. The Tribunal does not accept that, in 2008, the applicant was threatened by drug dealers and he and his father went to the Police Station. It follows that the Tribunal does not accept any of his claims that flow from this.

24. The Tribunal does not accept that the applicant’s father held a position in the Congress Party and was of adverse interest to the Shiromani Akali Dal Party. The Tribunal does not accept that the applicant is of adverse interest to the Shiromani Akali Dal Party.

25. The Tribunal does not accept that the applicant’s father was tortured physically and mentally by a group of people and/or his mother’s family members who would come up to him and beat him, abuse him, ask him for money and threaten to kill him. The Tribunal does not accept that his maternal uncles “thrashed” his mother and tried to thrash, harm and kill his parents. It follows that the Tribunal does not accept that his father and/or his mother went to the Police about these incidents and all his claims that flow from this.

26. The Tribunal does not accept that the local Police would always go to the applicant’s house and threaten his father and sometimes took his father to the Police Station and detained him for one or two weeks for no reason. It follows that the Tribunal does not accept any of his claims that flow from this.

27. The Tribunal does not accept that the applicant’s father was stabbed in the back by his maternal uncles in 2005. It follows that the Tribunal does not accept any of his claims that flow from this.  

28. The Tribunal does not accept that since the applicant was in High School his maternal uncles and cousins would go to his house and threaten his parents, brother and him, abuse them, try to harm them and kill them. The Tribunal does not accept that they tried to kill him “a lot of times”. The Tribunal does not accept that he was ever harmed or threatened with harm by any member of his maternal family. The Tribunal does not accept that he stayed at a hostel until he completed his studies and then came to Australia.

29. The Tribunal does not accept that the applicant is of adverse interest to any drug dealers, gangs, political parties, family members, Police or any other Indian authority.

30. The Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm for any of the reasons claimed if he returns to India now or in the reasonably foreseeable future. 

31. The Tribunal accepts that the applicant would prefer to live and work in Australia and does not wish to return to India.

    Does Australia have protection obligations to the applicant under the refugee criterion?   

32. Having considered all of the applicant's claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal finds that there is no real chance that the applicant will suffer serious harm for any reason set out in s.5J(1)(a) of the Act if he returns to India now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

    Does Australia have protection obligations to the applicant under the complementary      protection criterion?

33. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

34. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to India now or in the reasonably foreseeable future.    

35. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that he does not satisfy the criterion in s.36(2)(aa) of the Act. 

    CONCLUSION

36. 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) or s.36(2)(aa) of the Act.

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

    DECISION

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

L.Symons
          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.

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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.

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36Protection visas – criteria provided for by this Act

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(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.

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