1614938 (Refugee)
[2021] AATA 1010
•8 March 2021
1614938 (Refugee) [2021] AATA 1010 (8 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1614938
COUNTRY OF REFERENCE: India
MEMBER:Mila Foster
DATE:8 March 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 8 March 2021 at 7:48am
CATCHWORDS
REFUGEE – protection visa – India – family land dispute – farm reforms – a supporter of the creation of a Khalistan state – credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 36, 65, 438, 499
Migration Regulations 1994, 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 and Border Protection on 26 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 21 April 2016. The delegate refused to grant the visa on the basis that the applicant was neither a refugee nor owed complementary protection.
The applicant appointed a migration agent on review.
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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. DFAT published such a report in relation to India on 10 December 2020 (the DFAT Report).
CONSIDERATION OF CLAIMS AND EVIDENCE
In summary, the applicant claims to fear being killed by his uncle if he returns to India due to a land dispute and by Hindus in a protest about government proposed farming reforms.
The evidence before the Tribunal includes:
a.the Department file[1] relating to the applicant’s protection visa application,
b.a pre-hearing written submission made by the applicant’s migration agent on 11 December 2020, and
c.oral evidence the applicant gave at a Tribunal hearing on 17 December 2020.
[1] Department file [number].
The issue in the case is whether the applicant was a credible witness and whether he has a well-founded fear of persecution or would suffer significant harm if he returned to India for the reasons he has claimed. For reasons given below, the Tribunal has concluded that the decision under review should be affirmed.
Outline of claims and evidence
Non-disclosure certificate
The Department’s file contains a purported s.438 certificate dated 19 September 2016. The certificate states that disclosure of information contained in two folios on the file would be contrary to the public interest because the information related to an internal working document and business affairs. One folio is an internal Department checklist and the other is a movement record relating to the applicant’s arrivals to and departures from Australia. The former document was signed and dated by the delegate but the answers on the form not completed. The information in the latter document was reproduced in the delegate’s decision record.
A valid s.438 certificate requires the Tribunal to disclose the existence of the certificate to the applicant concerned and inform the applicant how the Tribunal intends to deal with it.[2] For the certificate to be valid, a public interest reason for the non-disclosure of the information must be specified in the certificate. However, the reason given for the non-disclosure in this case is not the basis of a claim for public interest immunity and thus the certificate is not valid. Further, the Tribunal has not disclosed the information to which the purported certificate refers to the applicant because the information is not relevant to the issues in his case or have already been provided to and by the applicant.
Applicant’s visa and travel history
[2] MZAFZ [2016] FCA 1081 (Beach J, 7 September 2016) and MIBP v Singh [2016] FCAFC 183, The (Kenny, Perram and Mortimer JJ, 19 December 2016).
The applicant’s migration history provides background to his claims for protection. The migration agent’s written submission contains the following chronology of that history (which is consistent with the history in the delegate’s decision record):
[July] 2006 Applicant first arrived in Australia on Subclass 572 student visa [September] 2008 Applicant departed Australia [October] 2008 Applicant arrived in Australia on Subclass 572 student visa 14 July 2010 Applicant granted Subclass 485 (Skilled) visa[3] [December] 2012 Applicant departed Australia [March] 2013 Applicant arrived in Australia on a Bridging Visa B 12 March 2014 Applicant was refused Subclass 885 (Skilled) visa[4] 6 June 2014 Migration Refugee Division (MRT) affirmed the Subclass 885 visa refusal. [February] 2015 Applicant departed Australia [March] 2015 Applicant arrived in Australia on a Bridging Visa B 30 March 2016 Applicant withdrew his Federal Circuit Court application for judicial review (of MRT decision) [3] A visa which allows recently graduated international students to live, study and work in Australia temporarily.
[4] A permanent residence visa.
Protection visa application
The Department file contains the protection visa application the applicant lodged on 21 April 2016. That application includes a protection visa application form completed by the applicant and a photocopy of the biodata pages of an Indian passport issued to the applicant [in] 2014. The form was completed by hand and is signed but not dated. Some questions on the form have not been answered but there is substantial compliance with the form. The questions asking the applicant’s reasons for seeking protection were not answered on the form but accompanying the form was a document titled ‘Application for protection visa’ (hereafter referred to as the applicant’s ‘written statement’) in which the applicant gives an account of events which occurred in India and that led his family to advise him not to return to India.
The Department file contains a second protection visa application form received from the applicant on 27 April 2016. There is nothing on the Department file to explain why a second form was lodged. The information provided on the form is to a large extent identical to the information provided on the earlier form. The second form was also completed by hand and the handwriting appears to be the same as the handwriting on the first protection visa application form. The second form is signed and dated by the applicant and is accompanied by a photocopy of the entirety of the applicant’s Indian passport.
Asked at the Tribunal hearing why he lodged the second protection visa application form, the applicant said he could not recall doing so but that he may have done so in response to a request for documents by the Department. The second protection visa form and the photocopy of the applicant’s passport received on 27 April 2016 is thus additional information and evidence submitted in support of the protection visa application the applicant made on 21 April 2016.
According to information the applicant provided on the forms, he is [age] years old and was born in [Village 1] in the Punjab state of India. He has been a national of India since birth and is not a national of any other country. He said his ethnicity and religion was Sikh. He had never married or been in a de facto relationship. According to information provided in the first form, his close family consists of his parents. In the second form he said he also has a brother and sister. According to information in the first form he lived at one address in [City 1] (in the Punjab state). He completed [education level] in [City 1] in March 2004 and [a qualification] at the [College 1] in Sydney from June 2006 until June 2008. He had worked as [various occupations] in Australia since July 2006. In the first form he stated that he returned to India on two occasions since arriving in Australia - the first time from [December] 2012 until [March] 2013 for a cousin’s marriage and the second time from [February] 2015 to [March] 2015 because his mother was sick. On the second form the applicant referred to only one occasion that he returned to India [from] February 2014 until [March] 2014 because his mother was sick. (At the hearing he said he returned to India three times which is consistent with the migration history in the pre-hearing submission and delegate’s decision record).
In the second form, the applicant responded to some of the questions about why he was seeking protection. He said that he left (India) due to a ‘(L)and dispute within our family and uncle’. He said ‘(T)hey will try to kill me if returned to home because, they think I got too much money in my ac, and I have to(sic) much property on my name’. He indicated that he tried to move to another part of India for safety but ‘they’ chased him. He said ‘I moved in capital state, live their of(sic) month, and move to Mumbai’. In relation to whether he thought the authorities in India can and will protect him if he returned, the applicant said that no-one can can protect you in India. He indicated that he did not think he could relocate within India.
In the written statement the applicant stated the following:
I came to Australia in 2006 as a student [from] [College 1] and completed in 2008. After completion my study I went back to home to see family. Everyone was nice and happy within my family and relative.
Early 2009 I find out there was land dispute within my dad and uncle. Which my dad sort it out nicely and easy way. But my relative keep pushing my uncle to get more land from us. Which was unacceptable. They said to my family your son [in] Australia, you shouldn't have any problem to give more land to my uncle. In mid-2009 my uncle sold our village house without any permission from us.
My father start asking for his money to all relative which they borrowed from my dad and from uncle for the house he sold without permission. Later on my relative and my uncle get and come to our home every week and start argument on money and land. They start picking me for without any reason.
When last time I visit to my home to see family they come over and start argument again in front of me. Which was unacceptable front of me and i start shouting on them and said keep away from us. I find out one of my friend they spying on me and family. They want me to come over their side and used me against my family. That's why I always try stay away from my home, spent much time at friend's places. But they keep chasing me.
My family suggest me to keep away from them and don't even think to come back. Because they find out they have plan to attack on us even on me if I get back to home. My mother was very sick last year. Day by day she is getting week because of land matter.
Invitation to attend interview with delegate
According to the delegate’s decision record, the applicant was informed on 9 May 2016 that he should contact the Department within 7 days if he wished to discuss his protection claims in an interview but that the applicant did not do so.
Identity documents
The Department file contains certified copies of the applicant’s Indian passport, an Indian driving licence and NSW heavy vehicle driver licence which he presented for the purposes of confirming his identity. The Indian address in the passport is the same as the address the applicant provided in his protection visa application. The address on the Indian driving licence is an address in Patiala (in the Punjab state).[5]
Review application
[5] Department file, f.119.
The applicant’s review application included some documents but not any new evidence supporting his claims.
On 18 October 2018 the Tribunal wrote to the applicant requesting that he provide any supporting evidence as soon as possible. No response to that letter was received.
The applicant was subsequently invited to a hearing which was cancelled due to an error on the part of the Tribunal. Before the Tribunal realised its error, the applicant informed the Tribunal that he consented to the Tribunal deciding his application ‘on the papers’. To avoid confusion, the Tribunal sought confirmation of that consent from the applicant and advised that if no confirmation was received it would proceed to invite the applicant to a new hearing. No confirmation was received but the applicant appointed his migration agent. The Tribunal thus proceeded to issue a new hearing invitation.
Pre-hearing written submission
In response to the second hearing invitation, the Tribunal was informed that the applicant would attend the hearing and received a written submission from the applicant’s migration agent. The submission included supporting documents, namely, the DFAT Report, news reports of land disputes which were said to be evidence that land disputes can be life threatening in India, and news reports relating to protests by farmers in India and the creation of Khalistan (a separate Sikh state).
The migration agent stated the following in the pre-hearing submission:
a.The applicant’s protection visa application was based on a family related property and land dispute which could be aggravated because the parties and family members involved were not on talking terms.
b.The applicant became aware of the family dispute relating to a joint family property on or about February 2015 when he travelled to India. The applicant was not aware of the problems regarding the family property which were brewing during his previous trips to India. The applicant only came to know about the family dispute when his parents firmly told him not to go anywhere but stay at home while he was in India during his last trip to India.
c.The applicant spent a few days of his trip at a friend’s house due to safety concerns.
d.In some circumstances where families have ongoing disputes over property, the dispute can be aggravated and result in very negative outcomes such as killings. The applicant fears the same in relation to his family situation.
a.In addition to the family dispute related fear, the applicant also has a well-founded fear of persecution in relation to the current protests concerning the farmers legislation in India. The applicant is a Sikh and the bulk of the farmers belong to the Sikh religion. Those farmers oppose the current government’s policies and legislative changes pronounced in September 2020. Being a Sikh and sharing the same sentiments as most in his community, the applicant has a well-founded fear of persecution due to his religion and political opinion (creation of Khalistan).
Tribunal hearing
The applicant attended the hearing on 17 December 2020 in-person. The applicant gave further evidence about his claims and presented arguments about the issues in the review.
He stated that he was born in [Village 1] but had lived in India at the one address referred to in his protection visa application in [City 1] and his passport. He said the land which was the subject of the family dispute was in [Village 1] which was about 15 or 16km away from [City 1]. He said his father had moved from [Village 1] to [City 1] in 1985 or 1986 to enable his father to get to his [job] in [City 1]. He said his parents had lived at the [City 1] address ever since. He confirmed that as well as his parents he had two siblings – a sister and brother in India. The applicant stated that between completing high school in March 2004 and when he left India for Australia in July 2006 he had commenced [a] degree and was trying to gain selection to the Indian [sports] team. When he was not selected, he decided to come to Australia with the aim of studying, working in a good sector and obtaining permanent residence.
Further evidence the applicant gave at the hearing is referred to in the reasons below.
Receiving country
Based on the applicant’s passport and in the absence of any evidence to the contrary the Tribunal finds that the applicant is a national of India as he claims. India is thus the receiving country for the purposes of assessing his protection claims.
The applicant’s credibility
Several aspects of the applicant’s evidence raise concerns about his credibility and the credibility of his claims.
Asked at the beginning of the hearing why he believed he was a refugee or owed complementary protection, the applicant gave a brief response. He stated that there had previously been no land dispute but on his last visit (to India) his parents told him not to go to his uncle’s house because the uncle had sold land without asking them and that he should go back to Australia. The applicant’s protection visa application contained only a brief account of the land dispute between his father and uncle and the pre-hearing submission added little further detail about the claim. The Tribunal thus asked the applicant to provide details about the land dispute. In a stumbling manner the applicant gave an account of the dispute which was not especially detailed. He indicated that his family had a big house in the village and when they moved from the village to the city his uncle remained in the house. The applicant mentioned that the uncle drank a lot and got a loan from ‘a private guy’. He said the uncle had to give the money back and so sold some land and then when there was nothing left, the uncle started selling what the applicant referred to as ‘our land’. The applicant said his father was not happy, if the uncle needed money he just had to ask and maybe they could have helped. The applicant said the uncle did not listen to them, sold their land, had a big fight and then threatened them as well. It took considerable questioning and clarification for the applicant to incrementally provide further details about the dispute. Eventually the applicant indicated that the house was located on half an acre of land in [Village 1] and the city his parents moved to was [City 1]. He indicated that his paternal grandfather had owned the house and land, the grandfather died before the applicant was born, he did not know who inherited the house after his grandfather’s death, and he did not think there was a will. However, he indicated that half of the house and land was his father’s and the other half was his paternal uncle’s, and that the uncle had sold his father’s half of the house and land. He said that was possible because there is no documentation in the village and the person who bought it must have thought it belonged to the uncle. Asked when his father’s portion of the house and land was sold, the applicant replied that the dispute started in 2013 or 2014 and then said he thought it was 2013. Before that time, the applicant said, all was fine. If these details were true then the Tribunal expects that the applicant could have provided them in are far more forthcoming manner.
Furthermore, the account is not consistent in significant respects with the applicant’s written statement. According to his written statement, the applicant found out about the land dispute in 2009, the uncle sold the house in mid-2009 and the uncle did so because a relative was pushing the uncle to get more land from the applicant’s father. There was no mention of the uncle selling the house and land to pay off his debts. Asked to explain the apparent inconsistencies, the applicant replied that he was depressed and did not know what to write. He said he was not aware of everything that had happened until his parents informed him on his last trip (to India). The applicant last visited India in 2015, before he lodged his protection visa application. Hence, he had been provided all the information about the dispute by his parents before he wrote the written statement. There is no medical evidence before the Tribunal that the applicant was depressed when he wrote his written statement. Finally, not knowing what to write might explain why the applicant failed to mention something in his written statement but does not explain the inconsistency between his written and oral evidence about when the land was sold and why the uncle sold the land (due to pressure from a relative or to repay debts). The Tribunal thus does not accept the applicant’s explanation for the inconsistencies.
The applicant indicated at the hearing that his father discovered the uncle had sold the house and land a few months after the uncle had done so. Asked whether his father subsequently attempted to go to court to resolve the dispute, the applicant’s evidence seemed intentionally vague and evasive. He initially replied that people said it would be too much, things happen, and his father was soft hearted and did not want to as long as he was given some money for the house but the arguing continued. When the Tribunal sought to confirm that the applicant’s father did not take any legal action, the applicant responded that in the village, going to court can end in people’s lives being taken. The former response suggested that the applicant’s father did not pursue legal action because he was soft hearted while the latter response suggested it was because the uncle may kill the father. Asked why the applicant thought his uncle would kill his father, the applicant replied that his uncle drunk a lot and when he drank he got out of control. The Tribunal again sought to confirm that his father did not pursue legal action. The applicant indicated that was the case, adding that it was because he was scared and the uncle had warmed that he would do something, kill someone. Questioned about when the threat was made the applicant again seemed evasive and vague. Eventually he said the threat was made by phone in 2013 or 2014 but then that he could not recall and only became aware of the threat on his last visit to India. If on his last visit to India the applicant had become aware that his uncle had made a death threat and it was for that reason that his father did not pursue legal action over the house and land sold by the uncle then the Tribunal expects that the applicant could have provided that evidence in a far more direct and forthcoming manner. The Tribunal formed the impression that the applicant was inventing his evidence as he spoke and was attempting to avoid providing specific details.
Questioned at the hearing about what happened after the house and land were sold, the applicant did not mention the claim in his written statement, that the uncle and a relative came every week and started an argument about money and land. When this was put to the applicant at the hearing, he said he could not recall what he wrote. He thus offered no explanation for failing to mention this claim at the hearing. If such an event had occurred on a weekly basis the Tribunal expects that being asked what happened after the house and land was sold would have prompted the applicant to recall the claim and recount it at the hearing.
Asked about events which occurred when the applicant last returned to India and found out about the house and land dispute, the applicant stated that his parents told him not to return to the village or he would be killed and to return to Australia as soon as possible. The applicant said his friends also told him to stay away. He said it was not safe to stay with his parents so he only stayed with them for a maximum of 4 days and spent the rest of his stay in Ludhiana and Patiala. However, his protection visa application indicated that he went to the state capital and then Mumbai for safety. Asked to explain this at the hearing, he stated that he did go to Mumbai with a friend. If that was the case the Tribunal expects he would have specified that he had stayed in Mumbai for safety at the hearing as well.
The Tribunal questioned why the applicant believed his uncle would kill anyone when it seemed he had not killed anyone since 2013 or 2014 when the dispute emerged. The applicant replied that you never know a person’s mind. The Tribunal put to the applicant that did not seem to suggest that there was a real chance that the death threat would be carried out against the applicant in the reasonably foreseeable future. The applicant responded that his brother had told him that the uncle had made threats, his brother’s friend had said that the uncle was looking for his brother and inquired where his brother worked and slept. The applicant added that his uncle had also made those inquiries about him on his last visit and that his uncle was ‘tracking’ everyone. The applicant did not refer to the claim in his protection visa application that he feared being killed because it was thought that he had too much money in his account and property in his name in Australia. Asked about his failure to mention that claim, the applicant stated that was what his uncle, and the relatives who supported his uncle, thought. Asked why they would think that, the applicant replied they thought that he had money and property in Australia because he was abroad, his father was [an occupation], and the farming income. If the applicant genuinely feared being killed because his uncle and relatives thought that he had money and property in Australia then the Tribunal expects he would have mentioned that when asked why he was a refugee or owed complementary protection, or why he believed his uncle would kill him in the future.
The applicant applied for the protection visa a year after he returned from his visit to India in 2015. If on his last visit to India, the applicant found out about the house and land dispute, his uncle’s threat, felt unsafe to stay with his parents for more than 4 days and was advised to return to Australia the Tribunal expects that he would have applied for the protection visa sooner. Asked why he had not done so the applicant stated that he had wanted to return to India but his family kept telling him to stay here and that they would tell him when it was safe to return. That does not explain why he applied when he did. The Tribunal expects that if the applicant’s claims about the land dispute were true and he had felt unsafe in India he would have applied for the protection visa sooner.
As indicated above when asked why he believed he was a refugee or owed complementary protection the applicant made no mention of the proposed farming reforms, Khalistan, his religion or (actual or imputed) political opinion. If the applicant genuinely feared he would be persecuted for those reasons the Tribunal expects he would have mentioned those matters when asked why he thought he was a refugee or owed complementary protection. Further, it took some questioning to elicit from the applicant exactly why he believed he would be harmed due to the proposed farming reforms. Ultimately, he claimed that he would participate in protests against the proposed farming reforms and, because he is a Sikh, Hindus would view that as him asking for his rights and calling for a Khalistan state. Hindus would thus take the opportunity to kill him during such a protest. When the Tribunal sought to confirm that he would participate in such protests, the applicant replied that he would and added that his father had done so. Asked whether he could point to any of his own conduct which would indicate that he would engage in such protests if he returned to India, the applicant gave a brief description of the proposed reforms, and alluded to evidence he had given early in the hearing that his brother and sister derived a small income from farming. The Tribunal noted that he had not pointed to any specific conduct he had engaged in that would indicate he would protest about the proposed farming reforms such as posting about it on social media or attending a protest in Australia. The Tribunal noted that it had information that such a protest had been held recently in Martin Place in Sydney.[6] The applicant responded the Martin Place protest was peaceful and he had attended it. Asked why then he had not mentioned it when asked about relevant activity he had engaged in, the applicant replied that he had not heard properly. It did not appear to the Tribunal that he had not heard properly. If he had recently attended a protest about the reforms then the Tribunal expects he would have mentioned it before the Tribunal expressly drew his attention to the protest.
[6] ABC News, ‘Why Indian farmers are protesting against Prime Minister Narendra Modi’s farming reforms’, 13 December 2020,
Considered collectively, the above matters lead the Tribunal to find that the applicant is not credible. The Tribunal has considered the DFAT Report and the articles accompanying the pre-hearing submission, but they do not overcome the issues with the applicant’s own evidence and his delay in seeking protection.
Findings on material questions of fact
The applicant’s lack of credibility, the particular issues with his evidence about the house and land dispute and his delay in seeking protection, lead the Tribunal to reject the claims relating to the house and land dispute and his uncle. Specifically, that means that the Tribunal does not accept that applicant’s uncle sold his father’s portion of the house and land in [Village 1], or that the uncle or any other relative or person threatened or tracked the applicant, his father, brother or other member of the applicant’s family. The Tribunal thus finds that there is not a real chance that the applicant will be killed or subjected to any serious harm or significant harm if he returns to India by his uncle or any other person in connection with a house and land dispute and because he is perceived as having money and property in Australia.
In light of the applicant’s lack of credibility and issues with his evidence about the farmers’ protests, the Tribunal does not accept that his brother and sister rely on income from farming, that his father participated in the protests in India, that he participated in the Martin Place protests, or that he would participate in protests about the farm reforms if he returned to India. The Tribunal does not accept on the evidence before it that the applicant has or would be viewed as holding a political opinion in support of the creation of a Khalistan state. The Tribunal thus finds that there is not a real chance that the applicant would be viewed by Hindus as a supporter of the creation of a Khalistan state, killed or subjected to any serious harm or significant harm in protests about the farm reforms if he returns to India.
Protection visa criteria findings
The Tribunal has found that there is not a real chance that the applicant will be killed or subjected to any serious harm if he returns to India by his uncle or any other person in connection with a house and land dispute and because he is perceived as having money and property in Australia. The Tribunal has also found there is not a real chance that the applicant will be viewed by Hindus as a supporter of the creation of a Khalistan state, killed or subjected to any other serious harm in protests about farm reforms if he returns to India. The applicant has not claimed to fear serious harm for reasons of religion or political opinion on any other basis. Having regard to these findings, individually cumulatively, and on the evidence before it the Tribunal finds that there is not a real chance that the applicant will be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion if he returns to India. The applicant thus does not have a well-founded fear of persecution within the meaning of s.5J and hence is not a refugee as defined in s.5H. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Given the Tribunal has concluded that the applicant does not meet the refugee criterion in s.36(2)(a), it has considered the alternative criterion in s.36(2)(aa). The Tribunal has found that there is not a real chance that the applicant will be killed or subjected to any significant harm in India by his uncle or any other person in connection with a house and land dispute and because he is perceived as having money and property in Australia. The Tribunal has found there is not a real chance that the applicant will be viewed by Hindus as a supporter of the creation of a Khalistan state, killed or subjected to other significant harm in protests about farm reforms if he returns to India. On the basis of those findings, individually and cumulatively, and on the evidence before it the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country (India), there is a real risk that he will suffer significant harm. The Tribunal is thus 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.
Mila Foster
MemberATTACHMENT - 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.
…
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Jurisdiction
-
Natural Justice
-
Standing
0
2
0