1613662 (REFUGEE)

[2019] AATA 6480

1613662 (REFUGEE) [2019] AATA 6480 (30 SEPTEMBER 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1613662

COUNTRY OF REFERENCE:                   India

MEMBER:Linda Holub

DATE:30 September 2019

PLACE OF DECISION:  Sydney

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

Statement made on 30 September 2019 at 1:11pm

CATCHWORDS

REFUGEE – protection visa – India – particular social group – mixed caste relationships – physical violence – fear of killing – state protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65
Migration Regulations 1994, Schedule 2

CASES

Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 144 ALR 567
Prasad v MIEA (1985) 6 FCR 155 pp.169-70
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

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 and Border Protection on 5 August 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 and national of India, arrived in Australia [in] February 2016 as the holder of a [temporary] visa. Once onshore, he applied for a Protection visa. In association with his Protection application, he was granted a Bridging visa A. That visa remains in effect and he resides onshore as a lawful non-citizen.

3. The applicant applied to the Department of Home Affairs (the Department) for a Protection visa on 29 March 2016. The delegate refused to grant the visa on 5 August 2016, on the basis that the delegate was not satisfied that the applicant is a refugee as defined by s 5H(1) of the Act, as the delegate found that the applicant is able to avail himself of state protection such that there would not be a real risk of suffering serious harm.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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: 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).

4. 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.

5. 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

1. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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

10) The issue before the Tribunal is whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

11) The applicant is [an age]-year-old male born in Haryana, India and is a citizen and national of that country.

12) The applicant’s written claims for protection are contained in the application forms received by the Department of Immigration and Border Protection on 29 March 2016. At the time of application, the applicant did not provide any information or evidence in support of his claims.  The Tribunal has before it the Department’s file relating to the applicant’s application and the Tribunal’s file relation to the review application.  The Tribunal has also given consideration to the delegate’s decision record.

13) The following is a summary of claims and information provided by the applicant in his Protection visa application:

a.that he is a member of the Jatt caste and was in a relationship with a girl in India, who was from the Labana caste.

b.his girlfriend’s parents were against the relationship and did not approve of their marriage. They, along with goons and the mafia, threatened to kill him and his family.  This occurred many times.

c.his girlfriend’s parents came to the applicant’s house and severely harmed him and his family.

d.he would be killed and his house would be burned by his girlfriend’s parents if he were to return to India.

e.he sought help from the police but they are corrupt and took bribes from another party to encourage him to leave and not return.  The government is also corrupt and cannot be trusted.  Despite requesting the assistance of the police they did not assist him.

f.if he returns to India, his girlfriend will seek him out and they would both be at risk of death because her parents would find them wherever they attempt to relocate.

14) The applicant did not attend an interview with the Department.

Review application

15) Following the delegate’s decision, on 5 August 2016 the applicant applied to the Tribunal for a review of that decision on 26 of August 2016.  He provided the Tribunal will with a copy of the Department’s notification of refusal of his application but did not provide a copy of the Protection Visa Assessment. Furthermore, he did not provide any supplementary information.

16) The Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone.  The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 30 September 2019 at 10.00am.  The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.  On 23 and 27 September 2019, the applicant was also sent two SMS reminder messages to the number that he had provided to the Tribunal.  They failed to deliver.

17) The applicant did not appear before the Tribunal on the day and at the time and place at which his hearing was scheduled.  Neither did he otherwise reply to the Tribunal’s hearing invitation letter (as requested).  In these circumstances and pursuant to the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

FINDINGS AND REASONS

Nationality

18) Attached to the Department’s file are photocopies of the applicant’s passport which verify his identity and nationality.  In the absence of any information to the contrary the Tribunal accepts, for the purpose of this review that the applicant is a national of India.

19) The Tribunal has noted that having left India the applicant first went to New Zealand prior to travelling to Australia.  In his application the applicant wrote that his Student visa to New Zealand was valid from [November] 2014 until [March] 2016.  In the absence of any information to the contrary the Tribunal is satisfied that the applicant does not have a right to enter and reside in another country for the purposes of s.36(3). 

Assessing the applicant’s claims

20) The mere fact that an applicant claims to fear harm 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/s claimed. Further, the Tribunal is not required to accept uncritically any and all the allegations made by an applicant (Randhawa v MIEA (1994) 52 FCR 437, p.451).

21) The applicant did not provide sufficient detail to satisfy the Tribunal his girlfriend’s parents were against their relationship and did not approve of their marriage because of the fact that they came from different castes, or that her family, along with goons and the mafia, severely harmed harm him and his family and threatened on many occasions to kill them; or that he would be killed and his house would be burned by his girlfriend’s parents if he were to return to India.

22) In addition, no further information or evidence was provided that the applicant sought help from the police but that they and the government are corrupt and took bribes from another party to encourage him to leave and not return; or that despite requesting the assistance of the police they did not assist him; or that if he returns to India, his girlfriend will seek him out and they would both be at risk of death because her parents would find them wherever they attempt to relocate.

23) It remains for the applicant to satisfy the Tribunal that all of the statutory elements for the grant of protection are made out (MIEA v Guo & Anor (1997) 144 ALR 567 p.596); and although the concept of the onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 p.288), the relevant facts of the individual case will have to be supplied by the applicant themselves, in as much detail as is necessary to enable the decision maker to establish the facts. A decision maker is not required to make the applicant’s case for him or her (Prasad v MIEA (1985) 6 FCR 155 pp.169-70; Luu & Anor v Renevier (1989) 91 ALR 39 p.45). The Tribunal acknowledges this guidance had been developed for the purposes of considering refugee protection claims, however, the Tribunal is satisfied it is materially applicable to the assessment of complementary protection claims.

24) On the available evidence the Tribunal does not accept that the applicant’s girlfriend’s parents were against his relationship with her and did not approve of their marriage because of the fact that they came from different castes, or that her family, along with goons and the mafia, severely harmed him and his family and threatened to kill them; or that he would be killed and his house would be burned by his girlfriend’s parents if he were to return to India; the applicant sought help from the police but that they and the government are corrupt and took bribes from another party to encourage him to leave and not return; or that despite requesting the assistance of the police they did not assist him; and that if he returns to India, his girlfriend will seek him out and they would both be at risk of death because her parents would find them wherever they attempt to relocate.

25) Therefore, the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion, either now or in the reasonably foreseeable future, if he returns to India. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in India. Therefore he does not satisfy the criterion at s.36(2)(a) of the Act.

26) The Tribunal has also considered the alternative criteria in s.36(2)(a)(a) of the Act. For the same reasons already articulated, the Tribunal is not satisfied that the available evidence supports that there are substantial grounds for believing that, as are necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he would suffer significant harm in the form of, arbitrary deprivation of life, or the death penalty being carried out, or torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore the applicant is not satisfied the requirements s.36(2)(a)(a) of the Act.

CONCLUSION

27) 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).

28) 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).

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

Linda Holub
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.

…

5H    Meaning of refugee

1. For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

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 the 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.

1. 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.

2. 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.

…

1. Protection visas – criteria provided for by this Act

…

1. A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

(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.

…