1613753 (Refugee)

1613753 (Refugee) [2020] AATA 517 (26 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1613753
COUNTRY OF REFERENCE:                   India
MEMBER:Catherine Carney-Orsborn
DATE:26 February 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 February 2020 at 2:22pm
CATCHWORDS
REFUGEE – protection visa – India – mental health – anxiety and depression – previous student and partner visa applications refused – marriage and divorce in Australia – treatment in Australia and availability, access and quality of treatment in India – country information – study and work in Australia – relationship with family in India and cousin in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
GLD18 v MHA [2020] FCAFC 21
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 and Border Protection on 11 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, arrived in Australia [in] January 2009 as the holder of a [student visa 1]. The applicant’s visa was extended [in] April 2011, and he departed Australia [in] January 2012. The applicant returned to Australia [in] February 2012. The applicant applied for a [student visa 2] [in] June 2012, which was refused [in] March 2013. The applicant applied for a [partner visa] on [Date 1] August 2013, which was deemed invalid on [Date 2] August 2013. The refusal to grant the [student visa 2] was affirmed by the Tribunal on [Date 3] August 2013. The applicant applied for a [partner visa] on [Date 4] August 2013, which was refused on [in] July 2015. The Tribunal affirmed the refusal [in] January 2016. The applicant sought ministerial intervention [in] February 2016, which was denied [in] March 2016.
The applicant applied to the Department of Home Affairs (the Department) for a Protection visa on 14 March 2016. On 11 August 2016, the delegate refused to grant the visa on the basis that there was insufficient evidence that the applicant would suffer harm due to his mental health. The applicant applied to the Tribunal for review of the decision on 29 August 2016.
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
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 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).
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.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
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has before it the Department file and the Tribunal file. The Department file contains the application for protection forms, a psychological report for the applicant, a written statement regarding the provision of mental health care in India, a copy of the applicant’s passport, a copy of the delegate’s decision record in regards to the refusal of the UK 820 visa on 24 July 2015, and a copy of the delegate’s decision record in regards to the protection visa application. The Tribunal file also contains a copy of the delegate’s decision record.
The applicant claims that he will be persecuted if he returns to India due to his mental health issues.
The following information is provided by the applicant in his application for protection forms.
The applicant was born on [Date] in [Location], Punjab, India. The applicant is a Hindu who speaks, reads, and writes both Hindi and Punjabi. The applicant is separated, and his relationship began [in] July 2013 and ended [in] November 2015. The applicant’s mother, father [and siblings] all live in India, and his cousin lives in Australia. The applicant is rarely in contact with his relatives, and he is estranged from them due to his marriage to an Australian woman.
The applicant states that he returned to India from [January] 2012 until [February] 2012 for a family discussion.
The applicant completed a [Qualification 1] in [Subject 1] at [Institution 1], [Suburb] from February 2009 until May 2010. The applicant then completed studies in [Subject 2] at [Institution] from March 2010 until February 2011. The applicant completed a [Qualification 2] of [Subject 3] from [Institution 2], [Suburb 2] from March 2011 until March 2012.
The applicant worked as [an Occupation 1] at a [Workplace 1] in Australia from March 2009 until May 2010. The applicant worked as [an Occupation 2] for a [Workplace 2] in Australia from May 2010 until July 2011. The applicant began working as [an Occupation 3] from July 2011 until the present.
The applicant claims that, if he returned to India, then he would be estranged from his family and unable to access appropriate mental health care, which would cause his mental health to deteriorate. The applicant states that there is still social stigma in India regarding mental illness, and his family will not help him. The applicant states that the authorities cannot help his situation, and states that mental health care is inadequate in India.
The applicant provided country information produced from a google search on “India mental health lack of hospitals and psychiatrists and mental health workers.”
Two psychiatric reports from the same psychiatrist were provided dated [December] 2018 and [December] 2019. An earlier report dated [February] 2016 was provided to the Department.
The applicant appeared before the Tribunal on 12 February 2020 to provide oral evidence and present arguments. The applicant’s representative attended the hearing.
A summary is set out below.
The Tribunal explained the process and the definition of refugee and complementary protection. The Tribunal explained that the hearing was the applicant’s opportunity to discuss relevant issues with the Tribunal.
The applicant provided his Indian passport. He stated that he could not return to India as he suffered from anxiety and depression.
The applicant provided some background to the Tribunal. He was born in India; he has parents [and siblings] in India. He first came to Australia on a student visa in 2009 over ten years ago.
He studied [Subject 1] and then a [Qualification 2] of [Subject 4]. He has returned once to India in 2012. He is divorced. The divorce certificate indicates that his divorce was in May 2017.
He has worked continuously while in Australia. He first worked as [an Occupation 4] in a [Workplace 3].
Since 2011 he has worked as [an Occupation 3], he has been employed at the same firm since 2011 and has been promoted to [a managerial position]. He manages the stock and continues to [do a work task].
The Tribunal asked the applicant to list what treatment he is receiving for his anxiety and depression. He responded that he sees his psychiatrist every one and a half months and takes medication which is prescribed to him. The Tribunal asked whether any other Mental Health providers were involved in his care. He responded no-one else was providing any treatment.
The Tribunal discussed country information it had before it and put to the applicant that he could return to India and take medication and that there were psychiatrists in India.
He responded that due to the huge population there was no easy access to doctors.
The applicant indicated that his family had funded his study in Australia. His family have a [business] in India, his [Sibling 1] is studying [Subject 4] and his [Sibling 2] is studying a [Qualification 3] in [Subject 3].
The applicant said that he sometimes talks to his brother and sister in India. The applicant said that his relationship with his family was ok however they were annoyed when he married an Australian wife. The Tribunal pointed out that they were now divorced.
He agreed they were however he stated that whenever he speaks to his parents they will berate him for going against their wishes and tell him he has messed up his future.
The Tribunal put to him pursuant to s424AA that information on the Department file relating to his application for a spouse visa indicates that a close friend of his father’s attended his wedding. He indicated that this was not correct. The Tribunal allowed further time for a written response to be provided.
He claims that he is part of a particular social group due to his depression and anxiety. He claims that in India he would face discrimination and that in India he would feel even more depressed due to the way he would be treated.
The Tribunal pointed out that he had worked continuously in Australia and had been promoted. The Tribunal asked why he could not work in India. He responded with words to the effect that he did all his tertiary study in Australia; he claimed he would not be able to find work and he cannot access medical care.
He claims that people who are mentally disordered are cut off from society; he said they are put on the street by their families. He claims that he witnessed this before he left India.
The Tribunal then discussed whether his anxiety has been caused by the visa refusals he had suffered. He responded with words to the effect that he agreed that he came to Australia for a bright future. He first developed his symptoms when he applied for a spouse visa and found out he had to return to India in 2014.
The Tribunal discussed that he appeared to have support in Australia from his cousin. He responded that his cousin had in the past helped him but they do not talk much now.
The Tribunal again discussed country information and that it appeared he could see a doctor and receive medication in India. He responded that there is no support in India, the doctors are very expensive and he would find it hard to get a job. He claims he has chronic mental illness and will be unable to get a job in India and unable to get the money to pay for his medication.
Further submissions were received after the hearing. The submissions in the relation to the s424AA issue state that there was a photograph of him at his wedding captioned a “close friend of his father” which could indicate that his family were supportive of the wedding. The submission responded that the photograph provided in relation to the applicant’s spouse application was the marriage celebrant and not a close friend of the applicant’s father. He claims that although it was captioned as such on the photograph it was not his handwriting on the photograph. No information was provided on whose handwriting was on the photograph or why it should have been incorrectly captioned.
Submissions were made that the Department had prejudiced the applicant as they had invited him to contact the Department within 7 days if he wished to have the opportunity to discuss his claims with the delegate. The delegate did not provide a date and an invitation for an interview. The Tribunal cannot comment on the procedure before the Department however the applicant has been given an opportunity to discuss his claims before the Tribunal.
The submissions responded that the applicant’s employer could not sponsor him on a work visa as [Occupation 3] is not on the skilled occupation list and further that his immigration history would result in him not being granted any further visa. The Tribunal accepts he may have difficulties securing a further visa to Australia.
The submissions provided further information on mental health services in India and provided a redacted copy of a person who was able to secure a ministerial intervention on the grounds of mental illness. The Tribunal notes that the person referred to was an inpatient in a large public hospital.
COUNTRY INFORMATION
The Department of Foreign Affairs and Trade (DFAT) Country Information Report – India, dated 17 October 2018, provides the following information on health in India:
India’s health system faces a number of challenges including a diverse health profile, an acute shortage of infrastructure and lack of skilled health sector workers. A large disparity exists between the services and health outcomes of each state and between urban and rural areas. Low public health investment has led to heavy reliance on a weakly regulated private sector. With the majority of health care expenditure in the private sector, a large proportion of the population is vulnerable to poverty in the event of catastrophic illness. Total spending on health was 4.7 per cent of GDP in 2014, about half the total expenditure of Australia, according to the WHO. Government expenditure on health in the same period was just 1.13 per cent of GDP. Nevertheless, according to the World Health Organisation (WHO), India’s health indicators and government per capita spending on health have improved steadily in the past two decades. Life expectancy is 67 for males and 70 for females. According to the United Nations Children’s Fund (UNICEF), the under-five mortality rate is 43 deaths per 1,000 live births.
Since 2017, the Indian government has turned its attention to increasing health spending, improving the availability and efficiency of services and allowing individual states (which are responsible for health care delivery) more autonomy to implement health programs. In its new National Health Policy 2017, the government set a goal of increasing public health spending to 2.5 per cent by 2025. More recently, the government launched a revamped national insurance scheme, Ayushman Bharat, and a program to improve the primary health care system, as part of a commitment to move India towards universal health care. The scheme incorporates state-run schemes and an existing national scheme, and aims to provide coverage of up to USD 10,000 for over 100 million lower income families.
Access to mental health care is difficult and patients are subject to stigma and discrimination. Recently, the government has begun to take positive steps to address this issue. Parliament passed the Mental Health Care Act (2017), and it came into effect on 7 July 2017. This Act rescinds the previous Mental Healthcare Act (1987), which had been widely criticized for not recognizing patient rights. The new Act defines mental illness as ‘a substantial disorder of thinking, mood, perception, orientation, or memory that grossly impairs judgment or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs.’ The Act also repealed section 309 of the Penal Code (1860), which criminalised attempted suicide by a mentally ill person.
Access to mental health care is not uniform across the country, with availability significantly more limited in rural areas compared to urban cities and large towns. This reflects the situation for access to general health care. In practice, mental health programs suffer from severe constraints in technical, human and material resources, and remain a low priority on the public health agenda.
According to the National Mental Health Survey, conducted by the National Institute of Mental Health and Neuro Sciences in 2015-16, many drugs identified as critical in mental health care were not continuously available at most of the facilities surveyed in 12 districts.[1]
[1] DFAT, Country Information Report – India, 17 October 201, pp. 7 – 8, paras [2.16] – [2.20].
A 2017 COISS Report also notes the following (footnotes omitted):
Chapter V of India’s Mental Healthcare Act, 2017 sets out the rights of persons with mental illness, including the right under Section 18 of the Act to access mental healthcare. Section 18(1) of the Act states that ‘[e]very person shall have a right to access mental healthcare and treatment from mental health services run or funded by the appropriate Government’. Section 18(2) of the Act indicates that this right ‘shall mean mental health services of affordable cost, of good quality, available in sufficient quantity, accessible geographically, without discrimination on the basis of gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class, disability or any other basis and provided in a manner that is acceptable to persons with mental illness and their families and care-givers’. Under Section 18(3) of the Act, ‘[t]he appropriate Government shall make sufficient provision as may be necessary, for a range of services required by persons with mental illness’. Also, under Section 18(7), ‘[p]ersons with mental illness living below the poverty line whether or not in possession of a below poverty line card, or who are destitute or homeless shall be entitled to mental health treatment and services free of any charge and at no financial cost at all mental health establishments run or funded by the appropriate Government and at other mental health establishments designated by it’.
As previously mentioned, the April 2017 Scroll.in article indicates that there was not sufficient expenditure on mental health care in India to finance the objectives of the Mental Health Bill. According to the article, with India’s low level of investment on health, ‘it will be nearly impossible to realise the objectives of the Bill, considering that mental health is usually allocated only around 0.06% of the health budget. In other words, the noble objectives of the Bill, will remain just a wish list’.
The August 2017 article in the International Journal of Mental Health Systems states that:
Despite the large burden of mental illness only 10% of Indians with mental health problems receive evidence-based treatments. Treatment gaps greater than 70% exist due to insufficient funding of mental, neurological, and substance use disorders. India’s spending on mental health care has consistently been inadequate. In 2011, India spent 4.16% of its gross domestic product on health; 0.06% of this was allocated at a national level for outpatient psychiatric care. India’s number of mental health beds is well below average with only 2.15 beds per 100,000 compared to the global figure of 6.5.
The article also notes that ‘[a]s the burden of mental illness is increasingly recognized, funding is being increased with the hope of ensuring more people receive high quality health care. India is implementing a variety of initiatives to address this large need, close the treatment gap, and reduce the DALYs lost to mental, neurological and substance misuse disorders’. The article further states that ‘[f]ailure to invest financially or politically in the realisation of’ the new Mental Healthcare Act ‘on the ground could see the IMHA similarly fail the people it seeks to protect’.
The August 2017 article in the Economic & Political Weekly indicates that ‘[i]nadequate infrastructure and the scarcity of healthcare professionals in India contribute to wide treatment gaps in mental healthcare… Statistics suggest that there are fewer psychiatrists than the requirement for the Indian population’.
The US Department of State (USDOS) report on human rights practices for 2016 notes that of the individuals with mental disabilities in India, ‘25 percent were homeless, and many in rural areas did not have access to modern mental health-care facilities. Disability rights activists estimated there were 40 to 90 million persons with disabilities. There were three mental-health institutions run by the federal government and 40 state-operated mental hospitals’. An April 2017 article in The Hindu also states that ‘[t]here are only 43 government-run mental hospitals across all of India’. The 2016 report of the technical committee on mental health constituted by India’s National Human Rights Commission lists 47 government psychiatric institutions in India, while a May 2016 article in The Indian Express indicates that there were 443 public mental hospitals in India, although there were none in six states, mainly in the northern and eastern regions of the country.
The USDOS report also states that ‘[m]ost persons with mental disabilities depended on public health-care facilities, and fewer than half who required treatment or community support services received such assistance’. The October 2016 article in the Hindustan Times mentions the findings of the National Mental Health Survey by the National Institute of Mental Health and Neuro Sciences, Bengaluru, that only one in five Indians who need mental health care services were receiving them, and this accounted ‘for 30 million of nearly 150 million who have mental health problems’.
The editorial in The Hindu in August 2016 in relation to the passing of the Mental Health Care Bill, 2016 by the Rajya Sabha notes that ‘[t]he situation today is a far cry from what is promised. While the bill says mental health services should be available at the district level, even States with well-functioning district hospitals do not offer regular psychiatric outpatient services, leave alone in-patient facilities. In government hospitals, medication to treat even the more common psychiatric disorders is not always available’.
The May 2016 article in The Indian Express, which refers to a report in medical journal, The Lancet, indicates that India’s District Mental Health Programme (DMHP) covered 200 districts, although the effectiveness of the programme varied ‘across states because of restricted funding, shortages of human resource, and low motivation among service providers at all levels’. The DMHP was designed to decentralise India’s National Mental Health Programme, which advocated integration of mental health into primary health care. The May 2016 article notes that ‘[i]n practice, DMHP is largely limited to psychiatric outreach clinics in a few primary healthcare centres, and more than 60 per cent of people with mental disorders access care directly at a district hospital, rather than the primary healthcare centres’. Also, ‘[a]ccess to mental health services in India continues to be a major challenge as up to 40 per cent of patients travel more than 10 km to access DMHP services’.
A January 2017 article on the Pulitzer Center on Crisis Reporting website provides information on the use of lay counsellors to provide mental health care for poor people in India, which is available in two states in India.
Country information located shows that mental health sufferers may experience ongoing difficulties in accessing appropriate services, that there is a lack of appropriate community-based support, and strengthening, its implementation would be incomplete and the issue of former mental health patients will continue to exist’.
A May 2017 Human Rights Watch submission for the Universal Periodic Review of India also comments that many people with disabilities ‘are locked up in overcrowded and unsanitary state mental hospitals and residential institutions, without following existing legal procedures that allow them to challenge such institutionalization, in part due to stigma and the absence of adequate community-based support and mental health services’. The submission indicates that India’s new mental health bill passed by the upper house of parliament in August 2016 failed ‘to fully comply with the UN Convention on the Rights of Persons with Disabilities and does not recognize that people with disabilities enjoy legal capacity on an equal basis with others in all aspects of life with appropriate measures to provide access to support they require in exercising their legal capacity’.
Nationality

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 and that he is outside his country of nationality. As such, the Tribunal finds that India is the applicant’s receiving country for the purpose of assessing his claims for protection.
There is no evidence before the Tribunal to suggest that the applicant holds any other citizenship or has any third country visas.
Does the applicant have a well-founded fear of persecution?
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. This involves assessing the credibility of the applicant’s claims. The Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.
The applicant claims that he will suffer persecution if he is returned to India due to his mental health issues. He provided reports from Dr [A] who identifies himself as a psychiatrist. In those reports Dr [A] states that he first saw the applicant when he treated the applicant’s wife for anxiety and provided a statement to assist with the spouse application that the wife suffered from severe depression. The doctor states that the stress of applying for the spouse visa and its subsequent refusal, divorce and the uncertainty of his visa status has caused such stress that the applicant now requires medication. The Doctor states that the applicant suffers from Generalised Anxiety Disorder and Panic Disorder. He states that the applicant is on medication.
The doctor then goes on to give an opinion on matters outside his area of expertise including repeating the history given to him by the applicant and stating that he believes that the applicant would be an asset to Australia as he has worked and is of good character.
In his most recent report Dr [A] states over the past year he has seen the applicant on five occasions. He states that the applicant is on medication.
Dr [A] states that the applicant is suicidal due to the stress and uncertainty of his visa status and the failure of his previous attempts to secure residency in Australia. The Dr states in relation to the applicant returning to India “it would seem a major disservice to place him in what is now for him an alien and socially rejecting environment”.
The Tribunal accepts that the applicant has been diagnosed by Dr [A] with a depressive illness and anxiety disorder. The Tribunal accepts that this is unfortunately due to his own sustained efforts to remain in Australia and his previous applications for a visa which have been unsuccessful.
The applicant’s history as outlined by Dr [A] and the applicant at hearing is that there is no history of mental illness before the stress of failing to secure the visa he needed to stay in Australia.
The evidence is that there is no family history of any mental illness.
The applicant claims that he has had a falling out with his family over his decision to marry a non-Hindu woman in Australia. The marriage failed soon after the Department declined to allow the applicant to stay in Australia while his spouse application was being processed.
The applicant was divorced in May 2017. The applicant at hearing stated that he spoke to his brother and sister in India. He claims that he at times has spoken to his parents however it was unpleasant and they made him feel bad as they constantly berated him for marrying an Australian woman.
The applicant states that his parents financed his student visa and study in Australia. The Tribunal discussed Independent Country Information which shows that there are medical services and a commitment from the Indian government to improve access for persons with mental illness.
The Tribunal has read the information provided by the applicant and country information which indicates there are problems with the delivery of services however that relates to persons with severe psychotic and mental health issues that need hospital admission and intensive interaction. It also relates to the poor and disadvantaged.
The applicant’s evidence is that he sees the doctor every one and half months. The doctor’s report states that he saw the applicant five times in the past year and that the applicant has been prescribed medication.
His evidence is that there have not been any other mental health services involved in his care.
There is no evidence before the Tribunal that he has needed the assistance of the acute care team, has been admitted to hospital or needed any other intensive acute treatment for any mental illness.
The Tribunal has considered the applicant’s submissions and evidence provided. The Tribunal accepts that his parents may not have been supportive of his marrying a non-Hindu woman however that relationship has ended some years ago and the applicant is now divorced. His evidence at hearing is that he speaks to his siblings and also his parents. His parents may express parental concerns about their son in Australia and actions he has taken however this does not amount to them being hostile or rejecting of their son.
His evidence is that they funded his student visa. The Tribunal only has the applicant’s own assertions and the history he provided to his doctor that his family would not support him if he returned to India. On the evidence before it the Tribunal does not accept that he has been rejected by his family in India.
The applicant has, since 2011, been continuously employed with the same company and has secured a promotion to a responsible position. The Tribunal does not accept that someone with a severe mental illness would be able to hold down a responsible position.
The applicant’s doctor has provided a report in support of the applicant’s desire to stay in Australia. The same doctor provided a report to attempt to assist the applicant in the spouse application by stating that the spouse had severe depression. The Tribunal accepts that the doctor may want to assist the applicant to achieve his desired migration outcome however the doctor states that he has only seen the applicant on five occasions over a year and prescribed medication. The Tribunal accepts that the stress of the applicant’s continuing attempts to stay in Australia and failure of several visa avenues would cause him anxiety and stress however is not satisfied that he is suffering from a severe mental illness. The Tribunal does not doubt that the applicant has been working in Australia and could be an asset to his employer however does not accept that if he returned to India he would be in an “alien and socially rejecting environment”.
The independent country information provided points to conditions in hospitals in India being inadequate and services to persons suffering from severe mental illness being sub-standard. The country information also indicates that the Indian authorities are moving to improve the situation for persons suffering from a mental illness. The impact of the lack of services is on the poor and disadvantaged. The Tribunal finds that the applicant comes from an educated family who have supported his siblings and himself to study. The Tribunal is satisfied that they would support the applicant if he were to return to India. The Tribunal does not accept the applicant’s assertion that they would reject or alienate him.
The submission provided in relation to another person who secured a ministerial intervention indicates that the person was in psychiatric care as an inpatient. The applicant’s circumstances are very different as his evidence is that the only assistance and treatment he has received is visits to his doctor and medication.
The Tribunal is satisfied that if the applicant returns to India he would have an established network and community to support him and he would be able to secure the services of a doctor and medication if this was needed. The Tribunal is satisfied that, with the skills he has acquired in Australia, the applicant would be able to secure employment.
After considering all the evidence the Tribunal finds that the applicant has exaggerated the extent of any mental illness symptoms he may have experienced due to his failure to secure his desired immigration outcome in Australia.
Overall the Tribunal is not satisfied that the applicant suffers from a severe life threatening mental illness or that he would not be provided with medical care and services for any anxiety disorder or depression. Accordingly it is not satisfied the applicant genuinely fears serious harm if he returns to India in the foreseeable future. It is not satisfied the applicant is a person who has a well-founded fear of persecution. Nor is it satisfied there is a real chance of persecution for any of the reasons set out in the Act relating to all areas of India.
Accordingly, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Does the applicant meet the complementary protection criteria?
As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, it has considered whether he may nevertheless meet the criterion for the grant of a protection visa under the complementary protection criterion.
As indicated above, the applicant claims he suffers from severe depression and anxiety disorder. The medical evidence in support of those claims is from one doctor who states that he has seen the applicant five times over a year and prescribed medication. The Tribunal notes the applicant been able to secure paid long term employment in Australia and has been promoted to a responsible position within the company. The Tribunal has considered his claim that he will not receive adequate medical care in India. As set out above the Tribunal has considered the evidence and found that he comes from an educated family with resources available to them. The applicant’s evidence is that he is in contact with his family and they expressed concern about him. The Tribunal does not accept the applicant’s assertion that they will reject him and ostracise him if he returns to India. The independent country information which indicates problems with the Indian mental health system also indicates that it is the poor and disadvantaged who have difficulty accessing care. The Tribunal also notes that the Indian authorities are seeking to address any lack of acute services. The applicant’s evidence is that he has never had to access any acute services; there is no evidence of any hospital admissions or mental health services being involved in his care. The Tribunal is satisfied that he would be able to access the care of a doctor in India if he needed treatment and a prescription for medication.
The Tribunal has considered GLD18 V MHA[2]which confirms that the judgments in CHB16 and CSV15 were correct in finding that significant harm does not encompass self-harm or harm arising from mental illness.
[2] GLD18 v MHA [2020] FCAFC 2, Federal Court of Australia, Allsop CJ, Mortimer and Snaden JJ, VID 835 of 2019, VID 1276 of 2019, 5 February 2020
On the evidence before it, 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, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Catherine Carney-Orsborn
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.
(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.
…
36     Protection visas – criteria provided for by this Act
…
(2)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.
…

[2020] AATA 517

26 February 2020

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Immigration

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