1615661 (Refugee)

[2020] AATA 5283

1615661 (Refugee) [2020] AATA 5283 (3 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1615661

COUNTRY OF REFERENCE:                   India

MEMBER:Mila Foster

DATE:3 December 2020

PLACE OF DECISION:  Sydney

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

Statement made on 3 December 2020 at 8:08am

CATCHWORDS
REFUGEE – protection visa – India – separation from wife – financial hardship – request for postponement declined – non-appearance before the Tribunal – paucity of the applicant’s claims – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5AAA, 36, 65, 426A, 441A
Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 9 September 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of India, applied for the visa on 14 June 2016. The delegate refused to grant the visa on the basis that he was neither a refugee nor owed complementary protection.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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).

   Mandatory considerations

8. 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 produced such a report in relation to India on 17 October 2018.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant presented his claims and evidence in his protection visa application and review application. His protection visa application consists of a partially completed protection visa application form. His review application includes a photocopy of the biodata pages of his Indian passport and a copy of the delegate’s decision record.

   Protection visa application

10. According to information provided in the protection visa application form the applicant is a [age] year old national of India. He provided the names and dates of birth of his parents, [and specified family members] in India. He said he was in contact with relatives outside Australia but did not provide details.

11. He said he married in Victoria and gave his wife’s name but did not respond to questions asking for his wife’s date or birth and contact details, when their relationship began, when they married, or why his wife was not being included in his application.  

12. The applicant responded to a number of questions with ‘TBC’. Questions such as when he arrived in Australia, when he departed and re-entered Australia, his travel to countries other than Australia, his previous addresses, his education, and his employment.

    Reasons for seeking protection

13. In relation to his reasons for seeking protection, the applicant indicated he was seeking protection so that he did not have to return to India. He did not respond to the question asking why he left India.

14. In responses to questions asking whether he had experienced harm in India, had sought help in India after the harm and had moved or tried to move to another part of India to seek safety, the applicant stated he would provide more information later.

15. In response to the questions asking what he thought would happen if he returned to India and whether he thought he would be harmed or mistreated if he returned to India, the applicant said his wife would feel alone and he would feel alone without his wife and there was nobody to look after his wife. He said he feared financial and other serious harm to his wife and himself. He said he wanted to live safely. He indicated he believed he would face financial and ‘sociological’ harm. In response to questions asking whether he thought the authorities in India can and will protect him if he returned, and whether he thought he could relocate within India, the applicant indicated that he did not think so and that he would provide more information later.

16. The question which asks applicants to list documents they had included in the application, will provide later and cannot provide was left blank by the applicant.

17. The applicant did not subsequently provide further information or documents to the Department in relation to his protection visa application.

    Delegate’s decision record

18. The delegate’s decision record included what was referred to as the applicant’s history/ migration history which indicates that:

    a.the applicant first arrived in Australia on a student visa [in] May 2009;

    b.the applicant applied for a temporary graduate visa [in] August 2011 which was refused, and the applicant unsuccessfully applied to the Migration Review Tribunal for review of the refusal and made two applications for judicial review;

    c.the applicant separated from his wife [in] August 2011;

    d.the applicant departed Australia on two occasions in 2015 and 2016 and last entered Australia [in] May 2016; and

    e.[in] May 2016, three days after the applicant last re-entered Australia, his second application for judicial review was determined.

    Acknowledgement of review application

19. The Tribunal wrote to the applicant on 27 September 2016 acknowledging receipt of his review application.

20. The letter stated that if the applicant wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible.

21. Attached to the letter was information for refugee review applicants. The information states that if an applicant has any material which they believe supports their application, they should send it to the Tribunal as soon as possible.

    Tribunal’s hearing availability letter

22. On 8 October 2018 the Tribunal wrote to the applicant to inform him that his file was being prepared for allocation to a tribunal member which may result in a hearing being scheduled.

23. The applicant was thus asked to send any additional evidence relevant to his application as soon as possible.

24. The letter also noted that once a hearing date was set, the date would only be changed if the Tribunal was satisfied that there was a very good reason to do so.

    Invitation to hearing

25. On 27 October 2020 the Tribunal wrote to the review applicant advising that it had considered all the material it had about his application but could not make a favourable decision on that information alone.

26. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 2 December 2020 at 11.30am (QLD time).[1] Due to the COVID-19 pandemic and having regard to the nature of the matter, the Tribunal had exercised its discretion to conduct the hearing by telephone.  

    [1] The applicant was residing in Queensland.

27. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on his case without further notice.

28. The hearing invitation referred to and contained a hyperlink to the Migration and Refugee Division’s COVID-19 Special Measure Practice Direction (the Practice Direction) and included the Tribunal’s fact sheet about hearings (Hearings Fact Sheet). The invitation, the Practice Direction and the Hearings Fact Sheet state that an applicant should inform the Tribunal as soon as possible if they are not able to participate in the hearing, the Presiding Member will consider any request for a postponement, and if the Tribunal does not advise that a postponement has been granted then the applicant must assume that the hearing will go ahead.

29. The Tribunal sent the applicant two SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

    Request for postponement

30. On 30 November 2020 the applicant requested that the hearing be postponed for four weeks because he had requested documents from the Department under the FOI Act and a few documents from his home country. He stated that due to the pandemic, things were delayed due to lockdown restrictions and he had not yet received the documents from the Department or his home country.

31. It had been more than four years since the applicant applied for the protection visa and stated that he would provide further information and more than four years since he had lodged his review application and was first informed by the Tribunal that he should provide any supporting evidence as soon as possible. Further, it had been more than two years ago since he was informed in the hearing availability letter that he should provide any additional evidence as soon as possible. The Tribunal thus considered that the applicant had had ample time to make his FOI request to the Department and obtain further evidence from his home country. Consequently, the Tribunal decided to refuse the applicant’s request for a postponement.

32. On 1 December 2020 the Tribunal informed the applicant that his request for a postponement had been refused and thus that his hearing would proceed as scheduled.

    Information about the applicant’s wife

33. In preparation for the hearing the Tribunal had accessed Department records which seemed to indicate that the applicant was married to an Indian national who was currently in Australia.

    Failure to appear at the hearing

34. The Hearing Fact Sheet states that if the hearing is by telephone the applicant will be contacted by a hearing attendant or Member on the number the applicant had provided. A hearing attendant called the applicant’s telephone number six times between 11.20am and 12pm[2] on the scheduled day of the hearing but was unable to reach the applicant. Five of those calls went unanswered. One of the calls, the third call, was answered however the person who answered did not speak or respond when the hearing officer asked for the applicant and then the person hung up. The applicant thus did not attend the hearing at the scheduled date and time.

    [2] QLD time and 12.20pm and 1pm NSW time.

35. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing via email in accordance with s.441A(5). The Tribunal sent the applicant two SMS reminders about the hearing and he requested a postponement of the hearing two days before the scheduled hearing which indicates he was aware of the scheduled date and time of the hearing. The applicant was informed the day before the scheduled date of the hearing that his request for a postponement had been refused and that the hearing would proceed at the scheduled date and time. The applicant has not contacted the Tribunal to explain his non-attendance. 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.

    Paucity of the applicant’s claims

36. The mere fact that a person claims fear of persecution 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 claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

37. The applicant’s claims are extremely vague and lacking in detail. He claims his wife will feel alone and he will feel alone without her if he returned to India but does not provide details about that claim. He claims there would be nobody to look after his wife but does not detail how or why his wife needs to be looked after. He claims to fear financial harm but does not detail the nature of the harm he and his wife would face or why they would face financial harm. He claims they would face other serious harm but does not detail the nature of that harm, how or why that harm would occur. He says he wants to live safely but does not detail why he would not be able to live safely if he returned to India. He claims he would face sociological harm if he returned to India but does not specify the nature of that harm, why it would occur or how.

    Protection visa criteria findings

38. Given the lack of detail in the applicant’s claims the Tribunal is not satisfied on the evidence before it that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion In India. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.

39. The Tribunal is thus not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or 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

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

    Mila Foster
    Member