1613549 (Refugee)

1613549 (Refugee) [2019] AATA 1059 (8 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1613549
COUNTRY OF REFERENCE:                  India
MEMBER:Nora Lamont
DATE:8 January 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 January 2019 at 2:18pm
CATCHWORDS
REFUGEE –protection visa – India – imputed political opinion – religion – catholic – fears forced conversion to Hinduism – lack of evidence – time gap between incident and protection application – credibility – delay in applying for protection – prefers Australian lifestyle – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 36, 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth) Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of India, applied for the visa on 14 April 2016. The delegate refused the visa on 17 August 2016.
The applicant appeared before the Tribunal on 11 December 2018 to give evidence and present arguments. There was no interpreter in the hearing. The Tribunal was concerned about the applicant’s ability to provide evidence and arguments without an interpreter, however the applicant himself insisted on speaking English and not using an interpreter.
The applicant was not represented by a legal representative or a migration agent.
Criteria for a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
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).
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.
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
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
According to information on the Departmental file and confirmed at the Tribunal hearing the applicant is a [age] year old Christian male born in [Kerala] India. The applicant has [several] sisters one of whom lives in Australia. The applicant completed high school and spent two years [in vocational studies] however he did not complete the course.
The applicant’s immigration history is as follows:
·Arrived in Australia [date] October 2013 on a [temporary visa 1]
·19 January 2014 the [temporary visa 1] ceased
·20 January 2014 the applicant applied for a [temporary visa 2]
·18 February 2014 the [temporary visa 2] was refused
·22 October 2014 the Migration Review Tribunal (MRT) affirmed the decision to refuse the visa
·21 November 2014 lodged judicial review at the Federal court
·13 April 2016 Judicial review outcome the applicant withdrew
·14 April 2016 the applicant applied for a Protection visa
The applicant’s claims as submitted on his protection visa application are as follows:[1]
·I left the country on a [temporary] visa and arrived in Australia on [date] October 2013. But on reaching here I was informed by my father that RSS group of people are looking for me as I was involved with them in stopping them from converting Christian people to Hindu
·I have a great fear of my life and well-being they might eliminate me or involve me in some serious false case
·Some people in the village approached the police to stop them doing so but the police didn’t intervene at that stage
·They recently harmed 2 of my friends and they will also try to locate me
·As BJP is the ruling party and RSS is a part of that party they will protect their people as they are trying to convert the minority people to Hinduism
·They have a strong group and they can easily relocate me
[1] Home Affairs [file number deleted] Folio pages 18-20
In addition the applicant provided a statement to the Department with his protection visa application. The statement can be summarised as follows: [2]
·From childhood the applicant has had a strong Christian faith and lived in [Kerala] where 75% of the people are Christian.
·The applicant joined the Kerala Catholic Youth Movement (KCYM)
·Since the BJP came into power they started promoting Hinduism in populated areas with their group the Rashtriya Swayamsevak Sangh abbreviated as RSS. They started coming to the village and pushing people to convert to Hinduism. Due to this there were a lot of tensions.
·They started taking poor youth and converting them
·The applicant along with 15-20 boys from our area decided to stop them from entering the village. They made posters and started guiding people that they should not change their religion due to fear
·In March of 2013 in the evening we got news that a group of 15-20 RSS people were coming to the area and they decided to stop them. They gathered 30 to 40 boys and tried to stop them. They were armed and started beating the applicant and other boys. The police did not intervene because the RSS head of the region told them not to intervene
·Last week the applicant’s father told him that the RSS picked up two boys who were associated with the applicant and the whereabouts of the 2 boys is still unknown.
·To avoid such a fate the applicant with the consent of his family has decided to see asylum
[2] Home Affairs [file number deleted] Folio pages 42-43
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to his receiving country of India, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant travelled to Australia on a valid Indian passport and states that he is an Indian national. The delegate had no concerns about the applicant’s identity. Therefore the Tribunal has assessed the applicant’s claims against India as his country of nationality and receiving country.
At the Tribunal hearing the applicant said he liked Australia as he could meet people and they would not ask what his caste was or what his religion was, yet in India it is a real problem. The applicant discussed his education and family background.
The applicant said in 2013 the Rashtriya Swayamsevak Sangh (RSS) arrived and forced people to covert from Christianity to Hinduism. When the Tribunal stated that there was a big difference between spreading the word about Hindu and actually forcing someone to convert the applicant said that they use castes as a way to convert people. The applicant then stated that he met a guy named [Mr A] who was leading them to fight off the RSS but he was only using the applicant as it turned out [Mr A] was only in it for political reasons. The applicant met [Mr A] when he was working on the streets. [Mr A] told him that they would be doing charity work. He had posters and brochures about Christianity and the applicant and 15-20 boys distributed them in Hindu areas. The applicant said that [Mr A] made out that he was helping people but really he was only helping himself.
Then the applicant said they heard a group was coming to convert people to Hinduism and so the applicant and a group of 15 -20 people went to meet them and to stop them from converting people. The Hindu’s had weapons and bashed him and his group. The Hindu’s thought the applicant and the group were political because they worked for [Mr A]. After that the applicant spoke with his parents and they said not to get involved. After a few days [Mr A] came and met with the applicant and the group about what had happened. Then the RSS picked up two boys and kidnapped them. However, by the time of the hearing these 2 boys had been released.
The Tribunal read out what the applicant had claimed that everyone in the village was fearful and that he himself may be eliminated. The applicant stated that was 2 years ago and everything is fine now in the village. They don’t have a problem with him anymore. The Tribunal notes that the applicant stated the 2 boys were kidnapped after the fight with the group of Hindu’s with weapons. However, in his written claims the applicant said his father told him that the boys had been kidnapped whilst he was in Australia.
The Tribunal accepts that the applicant is a Christian (Catholic) who practices his faith. The Tribunal asked several questions of the applicant in regards to his religious beliefs and was satisfied that the applicant is a Christian. Further, the Tribunal accepts that the applicant was involved in some way with the Kerala Catholic Youth Movement (KCYM) when he was younger. According to the applicant himself all people aged 15-35 years of age are involved in the KCYM. However, the Tribunal notes that the applicant’s description of the KCYM in his statement provided to the Department was a cut and paste from Wikipedia. [3]
[3] >
The applicant told the Tribunal that he wants to work in Australia and if he got the chance to work it would be good for his family in India. The applicant said his family is poor and his parents are old and they have been working a long time. The applicant went on to explain that he owes money to people and needs to work to pay it off. When asked what he was doing in Australia he said he was not working, that sometimes his sister helps out but that he likes to be on the street learning English.
The Tribunal has also taken into consideration the fact that the applicant arrived in Australia in October 2013 yet did not apply for protection until April 2016 after having [his temporary visa 2] refused and affirmed at the MRT. The applicant claimed at the Tribunal hearing that at the time of his application he did want protection but now he really wants a chance to work in Australia. The applicant said after he withdrew his judicial application he planned on going back to India, however his parents told him to stay in Australia so the next day he applied for a protection visa. The Tribunal considers that if the applicant was seeking asylum and had fear he would have applied when he first arrived he would not have waited three years.
The Tribunal however considers that the applicant has come to Australia for purposes other than seeking protection. It does not arise from any of the evidence presented that the applicant fears return to India, rather he plainly told the Tribunal he would like to stay to work. Further the applicant told the Tribunal that he feared he would not be able to get a job in India. Further the applicant said that he borrowed money to come to Australia and needs to pay it back. The applicant when asked what he feared about going back to India stated maybe [Mr A] or people like him. However, given the above discussion around [Mr A] the Tribunal does not accept that the applicant actually has a fear of [Mr A] or any of his associates.
Given these concerns, the Tribunal does not accept the applicant is a credible witness. For the reasons set out above the Tribunal does not accept the applicant’s claims to fear harm by the RSS, [Mr A], or anyone trying to convert him to Hinduism. It follows that the Tribunal does not accept that the applicant was assaulted by the RSS or their followers.
Given these findings the Tribunal does not accept that if the applicant returns to India he will face a real chance of persecution from the RSS, or anyone else who tries to convert Christians to Hindus. The Tribunal finds that the applicant does not face a well-founded fear of persecution as per s.5J(1) of the Act and therefore the applicant is not a refugee within the meaning of s.5H(1).
Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to India, there is a real risk that the applicant will suffer harm from the RSS or anyone associated with them. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).
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).
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.
Nora Lamont
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 1059

8 January 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice