1614035 (Refugee)

[2017] AATA 2649

1614035 (Refugee) [2017] AATA 2649 (21 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1614035

COUNTRY OF REFERENCE:                  India

MEMBER:Mr S Norman

DATE:21 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 21 November 2017 at 11:45am

CATCHWORDS

Refugee – Protection visa – India – Political opinion – Insufficient evidence – Failed to attend tribunal hearing

LEGISLATION
Migration Act 1958, ss 36, 65,426A

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
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275 288

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 [in] 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 [in] May 2016.

   CRITERIA FOR A PROTECTION VISA

2. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. The issue in this case is the applicant fears harm in India for reason of his political opinion. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

4. By letter dated 3 October 2017, the Tribunal wrote to the applicant (by email), advising that it had considered all the material before it relating to his 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 21 November 2017. 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.  Two SMS hearing reminder texts were also sent to the applicant (on 14/11/2017 & 20/11/2017 – however, the first text was recorded as ‘delivery failed’).

5. The applicant did not appear before the Tribunal on the day and at the time and place at which his hearing was scheduled. The Tribunal also notes the applicant did not attend a Department interview. Neither did he reply to the Tribunal’s hearing invitation letter (as he was requested). Nor did the applicant respond to the hearing reminder text sent by the Tribunal. In these circumstances, and pursuant to s.426A of 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.

   Assessing the applicant’s claims:

6. The [age] Hindu[1] applicant said he lawfully departed India [in] November 2013; and he arrived in Australia on a “[temporary] visa”, [in] November 2013.[2] However, he only applied for the Protection visa (PV) [in] May 2016.   The Tribunal has seen a photocopy of the face-page of the applicant’s passport on the Department file[3] and I accept he is a citizen of India as claimed. I accept that India is the applicant’s receiving country for the purposes of assessing refugee protection claims and complementary protection claims.

   [1] DIBP – folio 23 (reverse side).

   [2] DIBP – folio 20.

   [3] DIBP – folio 5.

7. That being said, 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). After considering his claims, the applicant did not provide sufficient evidence to satisfy the Tribunal (ie) that he belonged to a political organisation in India; or that he did any work for same in India; or that even if he did, why he could not safely and reasonably relocate within India.

8. 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, I am satisfied it is materially applicable to the assessment of complementary protection claims.

9. Based on the claims provided the Tribunal is not satisfied all the statutory elements for the grant of protection are made out. Accordingly, I do not accept the applicant has a well-founded fear of persecution for reasons of the ‘refugee criterion’ in the Act; or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk he will suffer significant harm.

10. Neither is there any issue, squarely raised by the evidence though not articulated, that has satisfied the Tribunal the applicant has a real chance of serious or significant harm in India.

    Finding:

11. For the reasons set out above, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee criterion’ in the Migration Act. The applicant does not satisfy the criterion set out in s.36(2)(a) or (b) of the Act.

12. For the reasons set out above, the Tribunal is also not satisfied the applicant is a person in respect of whom Australia has protection obligations under the complementary protection criterion in the Migration Act. The applicant does not satisfy the criterion set out in s.36(2)(aa) or (c) of the Act.

    DECISION

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

    Mr S Norman
    Member