1616406 (Refugee)

1616406 (Refugee) [2019] AATA 6493 (23 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1616406
COUNTRY OF REFERENCE:                   India
MEMBER:Catherine Carney-Orsborn
DATE:23 October 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 23 October 2019 at 2:07pm
CATCHWORDS
REFUGEE – protection visa – India – political opinion – Congress Party – land mafia – fears harm for refusing to sell land to Bharatiya Janata Party allies – two applicants not in Australia – third applicant feared harm by father – family conflict – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 424A, 438, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33

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 9 September 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of India, first applied for a [temporary] visa offshore on 24 February 2012, which was refused on 29 February 2012. The applicants applied for [a second temporary] visa on 12 February 2015, which was granted on 19 February 2015. The applicants arrived in Australia [in] March 2015.
The applicants applied to the Department of Home Affairs (the Department) for the Protection visas on 19 March 2015. On 9 September 2016, the delegate refused to grant the visas on the basis that they were not satisfied that the first named applicant satisfied the criteria for the grant of a protection visa. On 5 October 2016, the applicants applied to the Tribunal for review of that decision.
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.
On 25 September 2019 the Tribunal sent a letter pursuant to s.424A stating that the Tribunal had information that the first and second named applicants had left Australia. The first named applicant had left [in] February 2018. The second named applicant left on [in] February 2019.
The letter set out that this is adverse as an applicant for a protection visa must be a non-citizen in Australia. This means that a protection visa can only be granted if the applicant is in Australia. The letter invited the applicants to respond or comment on the information by 9 October 2019. The letter was sent to the first named applicant’s email address which was the address provided to the Tribunal for all correspondence.
On 25 September 2019 the Tribunal sent an invitation to the email address provided by the applicants inviting the applicants to a hearing on the 15 October 2019.
There was no response to the s424A letter or the invitation to hearing.
On the 15 October 2019 the third named applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages.
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
The issue in this case is whether the applicants are owed protection. 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 applicants’ application for protection visas are on the Department file. The Department file also contains copies of the applicants’ passports, a written statement by the first named applicant setting out his claims for protection, and a copy of the delegate’s decision record.
The first named applicant claims he will be persecuted if he returns to India due to corruption and attempts to force him to sell his land.
The following information is provided by the applicants on their applications for protection and the statements the first named applicant provided.
The first named applicant was born [date] in [Gujarat], India. The first named applicant is a Gujarati Hindu who speaks, reads, and writes Gujarati and can read and write English. The first named applicant’s mother, father, and daughter live in India, and the first named applicant is in touch with them by phone. The first named applicant lived in one address in India from October 1984 until September 2009. The first named applicant lived at one address in [Country 1] from October 2009 until March 2015. Since coming to Australia, the first named applicant has lived in [Town 1].
The first named applicant completed secondary school at [School 1] in March [year]. The first named applicant worked as a [Occupation 1] with his parents in Gudarat from August 1987 until September 2009. The first named applicant then worked as a [Occupation 2] for [Employer 1] in [Country 1] from January 2012 until January 2013, and then from June 2014.
Prior to coming to Australia, the first named applicant visited [Country 2] from [September] 2006 until [later in] September 2006. The first named applicant then visited [Country 3] from [February] 2009 until [later in] February 2009. The first named applicant lived in [Country 1] from [October] 2009 until [March] 2015.
The second named applicant, the first named applicant’s wife, was born on [date] in Ahmedabad, Gujarat, India. The second named applicant is a Hindu of Gujarati ethnicity who speaks, reads, and writes Gujarati. The second named applicant’s mother, father, and daughter reside in India, and the second named applicant is in contact with them by phone.
The second named applicant completed a higher secondary school certificate at [School 2] in [Village 2] in May [year]. The second named applicant worked as a [Occupation 2] for [Employer 1] in [Country 1] from October 2014. The applicant lists no other work experience.
The first and second named applicants married [in] 1991 in [Village 3].
The third named applicant, the son of the first and second named applicants was born on [date] in Ahmedabad, Gujarat, India. The third named applicant is a Hindu of Gujarati ethnicity, who speaks, reads, and writes English and reads and writes Gujarati. The third named applicant has never been married or in a de facto relationship. The third named applicant lived in Ahmedabad, India from birth until August 2010. The third named applicant then lived in [Village 3], India from September 2010 until May 2014. The third named applicant lived in [Country 1] from [June] 2014 until [March] 2015.
The third named applicant completed a higher secondary school certificate at [School 3] in [Village 2] in September 2012.
The second and third named applicants do not set out any claims for protection of their own. The applicant provides a written statement setting out his claims for protection.
The first named applicant claims that his father was a [Occupation 1], who was a member of [a certain] committee and of the Congress Party. One of the local [Named] families sold land to the first named applicant’s father.
The first named applicant later became a member of the Congress Party. The [family] wanted the first named applicant to sell the land back to them, because the land’s value had skyrocketed. The first named applicant refused, and the family threatened to kill him. The [family] is affiliated with the BJP government. In July 2009, a local BJP leader called the first named applicant and asked him to give the land over to the previous owner. When the first named applicant refused, the family hired local thugs to kill the first named applicant. Multiple shots were fired on the first named applicant’s house at night.
There had been attacks on other poor [people who worked in Occupation 1] in the area, and their children were kidnapped when they refused to give their land to the [family] and their BJP allies. The first named applicant could not get any help from the police as they refused to take action against [Mr A] due to his BJP affiliation.
The first named applicant went to [Country 1] to escape. The first named applicant secretly returned to India to sell some of the land to finance his stay in [Country 1]. When he (presumably [Mr A]) found out about this, he ordered the first named applicant’s house to be set on fire, and the first named applicant’s son 9the third named applicant) to be kidnapped. The third named applicant escaped as he was staying with the first named applicant’s in-laws, and subsequently left India.
COUNTRY INFORMATION
A 2011 Q&A research report by the then Refugee Review Tribunal provides the following information on ‘land mafia’:[1]
Limited information was located on the mafia in Punjab generally. Nevertheless, some reports were located on the ‘land mafia’, who engage in land grabs and illegal sales of land, particularly targeting non-resident Indians. The South Asian Post reported in September 2010 that local Punjabi media had recently publicised “several cases of land grabs by gangsters and cops, who allegedly managed to sell the properties through forged documents and impersonation in the Doaba region”.[2]
Rapidly rising property prices in Punjab has encouraged non-resident Indians who have been living overseas for some years to return to India and reclaim their land, many putting up not-for-sale signs in order to deter land-mafia groups from illegally selling their properties. Non-resident Indians are easy targets for the so-called land-mafia, a group of real estate agents and hired thugs who closely monitor the unoccupied properties of Indians living abroad, and sell them using fraudulent documentation. Many land disputes have reportedly resulted in violence and killings.[3]
A December 2010 Indian Express article quotes former Director General of Police in Punjab, Chander Shekhar, who claims that there exists “a nexus of land mafia with some politicians, bureaucrats, police officers” involved in the sales of illegal properties.[4] A 2011 article in The Tribune also identifies the land mafia, who allegedly levelled forest land, uprooting trees and bushes, in order to convert it into farm land near Kandi. A former Honorary Wildlife Warden reported the incident, claiming that a “violation on such a large scale is impossible without the connivance of the forest officials”.[5]
Nevertheless, in 2011 it is reported that the Punjab government is implementing changes to ensure that sales of properties belonging to non-resident Indians are more transparent. It is proposed that sales of such properties will not occur without the owner’s direct involvement.[6]
[1] RRT, India – IND38270 – First Information Report – Land Mafia in Punjab – Akali Dal in Punjab – Sikhs, 21 February 2011, (accessed 24 September 2019).
[2] ‘Punjab’s land mafia thrives as property prices soar’ 2010, South Asian Post, 2 September – Accessed 18 February 2011 –
[3] ‘Punjab’s land mafia thrives as property prices soar’ 2010, South Asian Post, 2 September – Accessed 18 February 2011 – Saunders, L. C. 2008, ‘Property boom triggers land grabs’, Asian Pacific Post, 30 July – Accessed 18 February 2011
[4] ‘Ex-DGP alleges nexus between land mafia and politicians, cops, babus; seeks CBI probe’ 2010, Indian Express, 18 December – Accessed 18 February 2011 –
[5] Bhardwaj, B. 2011, ‘Forest land levelled in Kandi village’, The Tribune, 24 January – Accessed 18 February 2011 –
[6] Sharma, P. 2011, ‘Punjab govt changes rules for NRI property sale’, The Times of India, 20 January – Accessed 18 February 2011
The DFAT Country Information Report – India, 17 October 2018, provides the following information:
RECENT HISTORY
Contemporary India came into existence in August 1947. The majority of British India, consisting of areas governed directly by the United Kingdom and more than 500 princely states whose individual rulers owed allegiance to the British Crown, was partitioned into the independent countries of India and Pakistan. The princely states were given the option to accede to either India or Pakistan. The present constitution came into force on 26 January 1950. The country’s official name is the Republic of India.
The partition of India and Pakistan resulted in the displacement of an estimated 14 million people, according to the Office of the United Nations High Commissioner for Refugees (UNHCR). Millions of Muslims moved from India to the new state of Pakistan and millions of Hindus moved to India. Mass displacement also occurred on the north-eastern border as Hindus moved from East Pakistan (now Bangladesh) to India and Muslims went from India to East Pakistan. Violence associated with the partition led to civil unrest. The death toll from that unrest is unknown but is thought to be in the hundreds of thousands. Similar displacement occurred in 1971 when Bangladesh became independent from Pakistan.
Tension between India and Pakistan has continued since independence. The two countries have fought four wars (in 1947, 1965, 1971 and 1999), and there have been many skirmishes across the disputed border. Tensions in the region have increased since 2016 following an increase in attacks and civil unrest in the Indian state of Jammu and Kashmir.[7]
[7] DFAT, Country Information Report – India, 17 October 2018, p. 6, paras [2.1] – [2.3].
DEMOGRAPHY
India has conducted a comprehensive census every ten years since 1951. India’s population was approximately 1.21 billion with an average annual population growth rate of 1.64 per cent between 2001 and 2011. Population densities were highest along India’s south-eastern and south-western coastlines and the Indus-Gangetic plain south of the Himalayas.
India is a diverse, multi-ethnic and multi-lingual society with 22 languages recognised in the Constitution. States may also legislate their own official languages. According to the 2011 census, a total of 121 languages and 270 ‘mother tongues’ (an Indian specific term that can identify distinct dialects within language groups) were identified. According to the 2001census, a total of 122 languages and 234 ‘mother tongues’ with over 10,000 speakers were spoken in India. The most widely spoken languages are Hindi (41 per cent of the total population), Bengali (8.1 per cent), Telugu (7.2 per cent), Marathi (7 per cent), Tamil (5.9 per cent), Urdu (5 per cent), Gujarati (4.5 per cent), Kannada (3.7 per cent), Malayalam (3.2 per cent), Oriya (3.2 per cent), Punjabi (2.8 per cent), Assamese (1.3 per cent) and Maithili (1.2 per cent). Although only a relatively small number speak English as their first language, an estimated 125 million people speak English as either a first, second or third language.
The 2011 census stated that 79.8 per cent of the population identified as Hindu, 14.2 per cent Muslim, 2.3 per cent Christian, 1.7 per cent Sikh, and less than one per cent each identified as Buddhist, Jain or others. Although the population is majority Hindu, in some states the majority of the population identifies with a single religion other than Hinduism. Muslims are a majority in the union territory of Lakshadweep (a tiny island chain off the south-west coast of India) and the disputed far northern border state of Jammu and Kashmir (particularly in the Kashmir valley); Christians are a majority in the three north-east states of Nagaland, Mizoram and Meghalaya; and Sikhs are a majority in Punjab.
Hindu tradition divided society into hereditary groups associated with occupation, commonly called ‘castes’. The caste system had four principal groups: Brahmin priests and teachers, Kshatriya warriors and rulers, Vaishya farmers, traders and merchants and Shudra labourers. Each group encompassed thousands of sub-groups within a hierarchy. While Hindu in origin, castes have become a cultural phenomenon that also exists within other religions and across India’s many social, linguistic and religious communities. A group known as ‘Dalits’ or ‘untouchables’, due to their historical association with undesirable work such as cleaning or waste disposal, fell outside the four castes. In recognition of traditional discrimination against those outside the principal castes, the Constitution includes special provisions for ‘Scheduled Castes’ (mostly Dalits), ‘Scheduled Tribes’ (tribal and indigenous groups), and ‘Other Backward Classes’ (see Caste System). [8]
[8] DFAT, Country Information Report – India, 17 October 2018, pp. 6 – 7, paras [2.4] – [2.7].
ECONOMIC OVERVIEW
India’s economy is of global importance. It is one of the world’s fastest-growing large economies, with an annual GDP growth rate of 6.7 per cent in 2017. India’s GDP was USD 2,611 billion in 2017. India’s aspirational, consumer class has expanded in recent decades.
Growth prospects are underpinned by the government's economic reform agenda aimed at creating jobs and improving the business environment, including at the state level. In recent years, a greater recognition of the urgency for reforms to lift productivity has led to important policy achievements, including implementation of a national GST in 2017. The government has launched a series of highly visible campaigns against corruption, including a decision to withdraw high-value banknotes from circulation (‘demonetization’).
India ranked 130 out of 189 in the United Nations Human Development Index 2018 statistical update. An estimated 22 per cent of the population lived below the national poverty line in 2011, according to the World Bank. That rate fell from over 43 per cent less than 20 years earlier. The World Bank classifies India as a lower middle income country.[9]
[9]DFAT, Country Information Report – India, 17 October 2018, p. 8, paras [2.13] – [2.15].
STATE PROTECTION
Under the Constitution, the states and union territories have primary responsibility for maintaining law and order. The Constitution also empowers the central government to intervene in some situations and perform some functions in police matters. The Ministry of Home Affairs is responsible for the internal security of the country as a whole. It oversees the recruitment and management of the national Indian Police Service and Central Police Organisations, coordinates the activities of various state police organisations, and provides financial assistance to state police forces.[10]
INTERNAL RELOCATION
Sections 19(1)(d) and (e) of the Constitution guarantee citizens the right to move freely throughout the territory of India and the right to reside and settle in any part of the territory of India, subject to reasonable restrictions in the interests of the sovereignty and integrity of India and the security of the state. The interpretation of ‘reasonable restrictions’ is left to the government and courts. It enables laws and regulations that can restrict movement (for example, where there is unrest or in some border areas) and residence (non-residents cannot buy land in Jammu and Kashmir or in Uttarakhand).
India’s internal migration flows are substantial. Migration data from the 2011 census has been collected, but not yet released. The 2001 census recorded an estimated 307 million internal migrants in India, defining as a migrant anyone who lived in a place different to their place of birth or place of last residence. This figure represents approximately 30 per cent of India’s total population. The numbers may include people who had moved over very short distances within the same district, and may have missed a significant number of seasonal migrants, many of whom work in the informal sector without papers.[11]
Limits to internal relocation
Several factors may limit options for internal relocation. These include language barriers, a lack of documentation, lack of familial or community networks, lack of financial resources and employment opportunities, and discrimination based on ethnicity, religion, caste or gender.
India is a multi-lingual and multi-ethnic nation. Language barriers prevent internal migrants from obtaining access to health or educational opportunities. Bilingual or multilingual internal migrants have better opportunities for internal relocation.
A lack of identity documents and proof of local residence can restrict internal migrants’ access to public services and social security programs or even banking facilities. As a result, they often face barriers in obtaining subsidised food, housing and banking services until they can establish identity and local residence. Ethnic, religious or caste identity may lead to anti-migrant sentiment and limit options for internal relocation. Requirements to provide details of a husband’s or father’s name can exclude single women, women with children and domestic violence survivors from government services and accommodation.
DFAT assesses that individuals seeking protection from discrimination or violence have a wide range of viable internal relocation options, although these may be more limited for some individuals depending on their personal circumstances.[12]
[10] DFAT, Country Information Report – India, 17 October 2018, p. 25, para [5.1].
[11] DFAT, Country Information Report – India, 17 October 2018, p. 27, paras [5.14] – [5.15].
[12] DFAT, Country Information Report – India, 17 October 2018, p. 27, paras [5.16] – [5.19].
First and Second named applicants

Under s.65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.
So far as is relevant to this matter, s.36(2) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a protection visa may only be granted if the applicant is in Australia.
The Department of Immigration’s movement records indicate that the first and second named applicants are not in Australia. It appears that they left Australia [in] February 2018 and [February] 2019 respectively. The Tribunal wrote to the applicants on the 25 September 2019 advising that its records showed that they are not in Australia and therefore could not be granted a protection visa and inviting the applicants to comment on the information.
No response was received.
The Tribunal is satisfied from the circumstances set out above that the first and second named applicants are not in Australia. Therefore, the first and second named applicants do not satisfy the requirements of s.36(2) and cannot be granted protection visas.
Having reached this conclusion, it is not necessary to consider the first and second named applicants’ substantive case for the grant of the visa.
The third named applicant who is the adult son of the first and second named applicants did not respond to the s424A letter or the invitation to attend a hearing however he did attend at the hearing on the date of the hearing.
The Third named applicant.
On the 15 October the Third named applicant (the applicant) appeared before the Tribunal to give evidence and present arguments. A summary of his evidence is as follows.
The Tribunal explained the process and went through the introductions. The Tribunal outlined the purpose of the hearing and the requirements of the law and regulations in relation to a protection visa.
The Tribunal asked the applicant if he had understood what the Tribunal had told him through the interpreter. He responded he did. The Tribunal said it appeared he was responding before the interpreting was finished and he understood English. The Tribunal asked if he required complete interpretation or assistance at times. The Tribunal explained that it was entirely up to him to decide. He responded that he understood 95% but would like complete interpretation.
The Tribunal explained that there was a non-disclosure certificate on the Department file. The Tribunal explained that the information contained related to the applicant’s parents. The Tribunal explained that it was about their previous applications for [temporary] visa’s to [Country 1] and Australia. The Tribunal explained that the information was known to the applicants and was set out in summary in the Department decision.
The applicant responded that he was [a certain age] when his parents arranged the visas and he knows nothing about them. The applicant stated that he knows nothing about the claims made by his father. He stated at hearing words to the effect that he attended an interview with the Department however his father told him what to say and to just go along with them.
The applicant confirmed his date of birth and place of birth. He provided to the Tribunal a copy of his passport. It is the same as held on the Department file. He stated that he lost his passport. He has applied for a new passport.
He confirmed that his family including all his extended family are back in India. He stated that they all are living in the home village.
The Tribunal asked why he could not return to India. He responded that his parents bought him to [Country 1] when he was [a certain age]. He said he came on a [temporary] visa and he went to a college to study [Subject 1].
The Tribunal asked what his parents’ occupation was, he responded with words to the effect that they made and sold [a certain product]. When they went to [Country 1] they had [Occupation 1] jobs.
He claims that he just stayed at home and was not working. He said they spent a short time in [Country 1] about 8 months and then his visa to Australia was approved. He claims he told his father he wanted to return to India but his father would not listen to him.
He said he is currently working in a [named location] in [Town 1]. He says he has been doing that work for over four years.
The Tribunal asked why his parents returned to India. He said words to the effect that he told them he wanted to return to India and they never listened to him. He had a fight with his parents and they returned.
The Tribunal asked the applicant to expand on what the fight was about. He said he wanted to study but they did not listen to him. He said one day his father punched him. He claims that he punched his father back and one month later they left Australia and did not tell him.
The Tribunal asked if his parents were also working at [Town 1]. He responded that they were. He said he lived with his friends in [Town 1].
The Tribunal again asked why he cannot return to India. He responded with words to the effect that if he goes back his parents are religious people and they will not accept him and he may be tortured. He said that no-one will talk to him, just two of his friends.
The Tribunal asked him to clarify that this was all because of a fight he had with his parents.
He responded “yes’. He stated that they told him not to come back just to do something else. The Tribunal asked for further details on his fear. He responded that every day they were torturing him. The Tribunal asked for details of that torture. He responded with words to the effect that he was already depressed and they made it worse. He wanted to make his own future but they just wanted to make money. He said after their arguments they suddenly punched each other and his parents are upset and they returned to India.
He said he has no contact with them anymore. The Tribunal asked for more detail on why he cannot return to India. He responded that they are strict Hindus and his father will tell everyone not to talk to his son. The Tribunal again pressed for more information. He responded with words to the effect that they “may hurt him or something.”
The Tribunal clarified that he appeared to be saying that because he was disrespectful to his parents he cannot return to India. He responded with words to the effect that his parents told him not to come back. The Tribunal asked for more details on his fear. He responded that he was scared because his father may hurt him. The Tribunal asked how he would hurt him. He responded with words to the effect that he is wondering what his father will do.
The applicant stated that he has two friends who he works with and he would like the Tribunal to speak to them.
The Tribunal rang the number provided for a [certain person]. He confirmed he worked with the applicant in [Town 1]. He stated that the applicant fought with his father. He said words to the effect “that this is all I know”. He stated that the applicant’s parents did not agree with him and they are not on good terms and if he returns they will fight with him. He stated that they treated him badly in Australia.
The applicant requested that the Tribunal ring his other friend and colleague after 4pm.
The Tribunal asked the applicant to read the definition of refugee which was in front of him. The Tribunal asked what category he felt he came under in the convention, race, religion, nationality, membership of a particular social group or political opinion.
He responded that he did not know which one is related to his case.
The Tribunal then discussed the criteria in complementary protection, which was set out in front of the applicant, with the applicant. The Tribunal pointed out that it would be considering whether there is a real risk that he will suffer significant harm.
The Tribunal again asked how he felt he would be harmed. He responded that he did not know anything they can do.
The Tribunal then discussed re-location. The Tribunal asked the applicant if he could re-locate to another part of India such as New Delhi or Calcutta. The Tribunal noted that he was young and appeared to be in good health and many young people move to large cities.
He responded that he has no relatives with him and no house. He claims his father took money and everything from him.
The Tribunal asked why he and his family moved to [Town 1]. He responded with words to the effect that a friend of his father’s found them work in [Town 1]. The Tribunal asked if they were paid proper rates or he felt exploited. He responded with words to the effect that some employers were good and some were not good.
The Tribunal asked why he could not return to India to study as he had stated that was what he wanted to do. He responded that it was too late. He said he was now [older]. The Tribunal pointed out that many students study as mature age students. He agreed but said he cannot do that.
As requested by the applicant the Tribunal took evidence from a second witness after 4pm on 15 October 2019.
[Another person] confirmed that he was a friend and colleague of the applicant. He said that the applicant lives with him. He confirmed that the applicant’s mother and father have returned to India. He stated that the applicant had problems with his parents. He said that this was all he knew. The Tribunal asked why the applicant could not return to India. He responded that he cannot go back due to problems with his parents. He said food and living expense would be a problem. He said that he needs to stay in Australia so he can work and earn and go forward with his life.
Non-disclosure certificate
As discussed with the applicant at hearing there is an s.438 certificate on the Department’s file certifying that folios 107 and 108 should not be disclosed because they related to the internal deliberations of the Department. They are in relation to the first and second name applicants’ application for a [temporary] visa which was refused in 2012. The other document relates to the approval of the [temporary] visa in February 2015. The Tribunal discussed the content of the documents at hearing. The Tribunal pointed out that this information was set out in summary in the Department’s decision. The Tribunal is not satisfied that the disclosure of this information would be contrary to the nation or public interest. The Tribunal is of the view that if there are any concerns regarding the disclosure of the identity of the government officer whom provided the information, those details can be redacted.
The Tribunal does not consider that the certificate is a valid certificate or is relevant to the issues the Tribunal is considering.
Does the applicant have a well-founded fear of persecution?
The Tribunal must consider whether the applicant has a well-founded fear of persecution in India for one or more of the reason set out in s.5J(1)(a). The applicant claims that he cannot return to India as he has had a fight with his father. He claims that when his father was in Australia they had arguments and this resulted in them exchanging punches.
He claims that because his family are strict Hindus and he has disrespected his father they will not have anything to do with him. He claims that his father has told him not to come back and that his father will not talk to him. The applicant provided two witnesses who both stated that he had had a fight with his father and they had family problems.
When pressed by the Tribunal on what was the harm he would suffer he made vague references to being tortured. When asked to expand he stated that he was already depressed and his father did not let him study and wanted him to work and was only interested in money.
The Tribunal accepts that he may have had a disagreement with his father. The Tribunal accepts that his father may have wanted him to work and earn money. The Tribunal is further satisfied that although unfortunate it is not unheard of that adult children can have disagreements with their parents.
The Tribunal is not satisfied that the rift between the applicant and his father is such that he would be in danger of serious or significant harm from his father. At the hearing he stated that his family were Hindu. He did not expand on this or explain how this impacted on him returning to India. When the Tribunal put to him that what he is saying was accepted by many religions that he must respect his parents he agreed. He did not provide any further evidence or argument on how that would be extrapolated to a claim to fear due to the religion of his parents.
The applicant used the email address supplied by his father to the Tribunal when his father (the first named applicant) lodged the application for review on 5 October 2016. His father left Australia [in] February 2018 however the applicant has since that time used the father’s email address for correspondence throughout all his dealings with the Tribunal. He confirmed to the Tribunal that this was the email address. This is an indication that there is some communication between the applicant and his father and that the relationship may not be as strained as the applicant claims.
When pressed by the Tribunal to expand and provide more details he could only give vague responses that he did not know what his father would do, at one stage he said he would be tortured but he could not expand on that except to say that he was depressed and his father did not allow him to study or return to India. No evidence was provided in relation to any medical issues. The Tribunal put to the applicant that he was a young adult male who appeared to be healthy. He agreed this was the case.
The Tribunal asked the applicant to comment on what category his fight with his father came under in the refugee convention he stated he did not know. He could not provide any further convincing or persuasive argument or evidence that he would suffer significant harm. Although he claims the fight happened in Australia there was no police report or medical report provided. The Tribunal considers that the applicant speaks English and if he or his father had suffered serious harm they would have been able to contact the police or any medical service he or his father may have required.
The Tribunal considers that the applicant could relocate to a major city such as New Delhi. In response he stated that he has no family there and no money. The applicant is currently living without his family in Australia. He works and has formed friendships. He is a young, resilient man who has English skills and appears to be in good health and wants to stay in Australia without his family. The Tribunal is satisfied that he has exaggerated any disagreement he has had with his father. He is having some communication with his father as he uses his father’s email address however If his unfortunate family argument could not be resolved he could re-locate to another part of India if he chose to.
The Tribunal on the evidence and information provided does not accept that the applicant will be deprived of his basic human rights for any of the reasons claimed if he returns to India. The Tribunal is not satisfied that he is at risk of serious harm or significant harm for any of the reasons claimed if he goes to India now or in the reasonably foreseeable future.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal finds that there is no real chance that he will suffer serious harm for reason of his membership of a particular social group, religion or any other grounds under the Refugees Convention if he goes to India now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution and is not a refugee as defined. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a).
Does the applicant meet the complementary protection criteria?
The Tribunal must also consider whether the applicant meets the criteria for complementary protection.
A person meets the complementary protection criteria if 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 he or she will suffer significant harm.
‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
For reasons given above in relation to ‘real chance’, the Tribunal is not satisfied there is a real risk of any of the kinds of significant harm set out in s.5(1). The Tribunal is not satisfied 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. He therefore does not satisfy s.36(2)(aa).
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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).
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
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.
…

[2019] AATA 6493

23 October 2019

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Immigration

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