1616441 (Refugee)

1616441 (Refugee) [2019] AATA 6584 (3 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1616441
COUNTRY OF REFERENCE:                   India
MEMBER:Brendan Darcy
DATE:3 September 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 03 September 2019 at 9:01am
CATCHWORDS
REFUGEE – protection visa – India – threats from lenders of business loan – opposition to ‘love marriage’ by parents – postponements of hearing on medical and mental health grounds – inadequate documentation to support further postponements – no appearance by applicants at hearing – credibility – vague and unsubstantiated written claims – member unable to test applicants’ claims and elicit further evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 426A
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Gui (1997) 191 CLR 559
Nagalingharn v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
SZBCS v MIMIA [2005] FCA 1457
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 on 4 October 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, applied for the visas on 27 October 2015. The delegate refused to grant the visas on the basis that it was reasonable for the applicants to relocate to another part of India where state protection was available to them.
In this decision, the first named applicant, [name deleted], is referred to as the first applicant or the applicant; and the second named applicant, [name deleted], is referred to as the second applicant or the applicant’s spouse; the third named applicant, [name deleted], as the third applicant or the applicants’ child.
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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The first applicant claimed to be born on [date] in the Indian state of Tamil Nadu; the second applicant claimed to be born on [date] in the Indian state of Tamil Nadu.
The third applicant claimed to be born on [date] in the same Indian state as the first and second applicants.
All the applicants claim to be citizens of the Republic of India. On the Departmental file ([file number]) are copies of the applicants’ Indian passports.[1]
[1] [File number] Folio 84-101.
The first applicant claimed to be the husband of the second applicant and that the third applicant is their biological child.
The first applicant first arrived in Australia as a holder of a [visitor] visa [in] February 2015. The visa had been granted to the applicants [in] November 2014 and was set to expire [in] December 2015.
The first applicant departed Australia [later in] February 2015. He then returned on the same valid visitor visa [in] April 2015 before departing Australia for a second time [in] June 2015.
The first applicant arrived in Australia a third time on the same valid visitor visa [in] July 2015. The second and third applicants arrived in Australia [in] September 2015 for the first time on their valid visitor visas.
All the applicants applied for a Class XA Subclass 866 protection visa on 27 October 2015 and were granted associated bridging visas. They have since remained in Australia as lawful non-citizens.
The first and second applicants signed a statement outlining their claims for protection when they submitted their application forms for a protection visa. Below is a summary of those claims:
·It is claimed the first applicant came to Australia from Tamil Nadu for two reasons.
·First, the first applicant ran [a] business until 2013 when it suffered losses and he was compelled to borrow [an amount] of Indian rupees to buy stock for his business. However the market demand dropped and the goods were damaged in storage.
·The first applicant claimed he owed a lot of money to the banks and private lenders who threatened the first applicant and his family if the money was not repaid.
·The applicants did not have the resources to repay the money and they feared being killed.
·Second, the first and second applicants claimed to belong to a love marriage which their respective parents opposed. The first applicant claimed he may be killed or handicapped on his return to India.
·The applicant’s claimed they tried to obtain assistance from friends and neighbours, but that they were afraid of his parents, as his parents have influential political contacts in India.
·The first applicant claimed that the police are “under the influence” and the applicant will not be protected by the authorities.
According to their 866 protection visa application forms, the first and second applicants were married on [date]; their ethnicity is Tamil; and their religion is Islam.
According the same forms, the first applicant had travelled to [Country 1], [Country 2], [Country 3] [Country 4], [Country 5], [Country 6], and [Country 7] in 2014 and to [Country 8], [Country 1] and [Country 9] in 2015 all for business purposes; while the second and third applicant had travelled internationally to [Country 3] in 2012 on two occasions for business and [Country 2] in 2014 for business.
The second applicant indicated in her 866 application form that she had specific claims of her own to submit.
[In] December 2015, the applicants were informed by the Department that their application for protection may be decided without requesting further information from them. They were provided with an opportunity to contact the Department within seven days to arrange an interview to discuss their claims. They applicants did not take this opportunity to have an interview. With no further statements submitted to the Department, a delegate on behalf of the Minister proceeded to refuse the applicants protection visas on 4 October 2016.
On 5 October 2016, the applicants applied to have the delegate’s refusal decision reviewed by the Tribunal. Attached to the valid review application was a copy of the delegate’s decision record.
On 4 February 2019, the Tribunal emailed their authorised representative to invite the applicants to attend a scheduled hearing on 28 Mach 2019.[2] On 8 February 2018, a request for a postponement was forwarded to the Tribunal. Attached to the request was a medical certificate that had been dated 6 February 2019 and signed by a medical professional indicating the second applicant will require [surgery] in March or April 2019 and would require six to eight weeks of recovery time and that the first applicant required time to attend both work and running the household.[3]
[2] AAT folios 28-34.
[3] AAT folio 35.
On 12 February 2019, the postponement request was granted by the Tribunal.
On 25 February 2019, the Tribunal emailed their authorised representative to invite the applicants to attend a scheduled hearing on 31 May 2019.[4] On 27 May 2019, a request for a further postponement was forwarded to the Tribunal. Attached to the request was an unsigned and undated medical certificate indicating the second applicant was on Hospital [1]’s elective surgery wait list for [specialisation] surgery. There was no timeframe for the surgery in the letter and it did not indicate the second applicant was unfit to attend a scheduled hearing on 31 May 2019.
[4] AAT folios 40-45.
On 27 May 2019, the postponement request was granted by the Tribunal.
On 28 June 2019, the Tribunal emailed their authorised representative whether the applicant has had surgery so the Member can proceed to scheduling a hearing. On 2 July 2019, the applicants’ representative emailed the Tribunal stating that he had been advised by the applicant that the AAT will be informed about the surgery date when it is finalised. Attached was the same undated and unsigned medical certificate that had been submitted on 27 May 2019.[5]
[5] AAT folios 60-61.
On 9 August 2019, the Tribunal emailed their authorised representative to invite the applicants to attend a scheduled hearing on 30 August 2019 at its Melbourne facilities at 10.30am.[6]
[6] AAT folios 40-45.
On 26 August 2019, a request for a further postponement was forwarded to the Tribunal. Attached to the request was the same unsigned and undated medical certificate indicating the second applicant was on the Hospital [1]’s elective surgery wait list for [specialisation] surgery that had previously been submitted on two occasions as outlined above.
On 27 August 2019, the postponement request was refused. This was conveyed in a letter that was emailed to the applicant’s representative. The letter stated that the Tribunal was not satisfied the undated and unsigned medical document indicated the second applicant had a lack of fitness or capacity to provide evidence at a scheduled hearing. The Tribunal indicated that it remained open to the postponement request on receipt of more compelling information and that the first applicant is in a position to provide oral evidence to move forward this review application. There was no timeframe for the surgery in the letter and it did not indicate the second applicant was unfit to attend a scheduled hearing on 31 May 2019.
On 28 August 2019, the applicant’s representative emailed the Tribunal indicating the applicants had obtained a dated letter from the hospital’s [specialisation] department. The medical document is dated 22 August 2018 and was not signed. It stated the second applicant had been registered for surgery since October 2018 and that the second applicant had been assigned ‘category 3 – Non-urgent’ status. There is nothing in the letter to indicate the applicant was unfit to attend a scheduled hearing.
On 29 August 2019, the Tribunal forward a further letter to the applicants. The letter had been emailed to the applicants’ representative at 10.00am. The latest request for a postponed hearing had been refused as the most recent medical information did not demonstrate the first applicant was unfit to provide oral evidence.
At 1.41PM on the same day, the representative emailed the Tribunal. Attached were numerous medical documents from Hospital [1] and hospital [2] dating between [May] 2017 and [August] 2019. The representative also submitted a hearing response indicating that none of the applicant would attend the scheduled hearing although the applicants’ representative would attend. The email indicated the applicants are unable to attend the hearing due to the psychological state of mind the second applicant is in and due to the whole family being extremely sad and concentrating on the health of the second applicant. The email also indicated that the second applicant had not presented herself to his office on any occasion to prepare for any submission for the Tribunal to consider.[7]
[7] AAT Folio 89-102.
On the same afternoon, the Tribunal responded to the applicants’ intention not to attend the hearing. The Tribunal stated that there was no mental health evidence to adequately demonstrate the first and second applicants were unfit to attend a scheduled hearing, including no mental health information about the second applicant’s unfitness. The Tribunal went further to remind the applicants that the Tribunal may make a decision on the review without taking any further action to allow or enable the applicants to appear before it or may dismiss their application for review without any further consideration of the review application on the information before it. It further stated that a dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.
On the day of the scheduled hearing, the applicants’ representative appeared before the Tribunal while none of the applicants arrived. The Tribunal extended the hearing for an approximate half hour to provide for any late appearances or submissions. During the hearing, the applicants’ representative reiterated a lack of cooperation from the applicants and that he had been instructed by the applicants to inform the Tribunal that the second applicant was bed ridden and mentally unwell.
The Tribunal informed the representative that as the applicants had not appeared and they have not provided adequate evidence to explain their non-appearance, the Tribunal will consider whether to affirm or dismiss the review application from 12.00 noon on 2 September 2016 onwards, subject to any submissions. As the applicants did not appear, the hearing was closed at 10.29 PM.
At close of business on 2 September 2019 – that is more than three calendar days to gain a medical certificate from a suitable medical or mental health professional, neither the applicants nor anyone on their behalves provided any submission, including a medical certificate, about their non-attendances. While the Tribunal acknowledges that there are some serious health challenges facing the second applicant and that there is a degree of stress attending such hearings, the first and second applicants have failed to demonstrate any medical challenges were so severe that either of them were unfit to attend a scheduling. At the time of making this decision, the Tribunal has not received any submissions to explain the applicants’ non-attendances.
Although the applicants engaged a registered migration agent or lawyer, at no stage did the applicants provide any adequate reasons or convincing arguments for their non-appearance. Neither did they provide further documents or legal submissions as to the reasons Australia owes them its protection obligations between the time this review application had been lodged and making this decision.
As explained to the applicants’ representative, the Tribunal cannot postpone its decision‑making responsibilities indefinitely. The Tribunal has taken reasonable steps to provide them with a fair hearing by providing several earlier postponements. The Tribunal was entitled to seek more detailed health reasons for their claims for another postponement and their non-appearance on 30 August 2019. The Tribunal is satisfied the second applicant has not demonstrated an adequate level of unfitness whereby she was not able to attend a Tribunal hearing. As a [specialisation] patient whose surgery has been assigned as non-urgent by a medical professional, there was no indication in the submitted material that the second applicant was unfit to attend such a hearing. No medical certificate pertaining to the first applicant’s non-appearance had been submitted at all. Neither of them provided any mental health information at all. (Of course, the third applicant’s non-appearance has not been germane to this finding as he is a dependent minor of a young age.)
The Tribunal is satisfied it has carefully considered the reasons given by the applicants for their non-appearance in the context of the available information and their history of the applicant’s participation in the review. The Tribunal has also had regard to the relevant case law in making its decision not to proceed without rescheduling a hearing.[8]
[8] SZBCS v MIMIA [2005] FCA 1457 (Bennett J, 18 October 2005) at [29]-[32]. In SZLBE v MIAC [2008] FMCA 524 (Cameron FM, 28 April 2008), the applicant wrote to the Tribunal after the hearing stating that she had been unable to attend due to illness. The Tribunal considered the letter, was unconvinced, did not reschedule the hearing and proceeded to make a decision. The Court found that the Tribunal correctly exercised its discretion under s.426A at [31]. In SZLJK v MIAC [2008] FMCA 694 (Nicholls FM, 16 May 2008), the Court found the Tribunal was entitled to proceed to make a decision without a hearing in circumstances where the applicant had not informed the Tribunal that he misunderstood whether he was supposed to attend a hearing in Griffith or Sydney. See also SZKAI v MIAC [2008] FMCA 1049 (Barnes FM, 23 July 2008) where the Court upheld the Tribunal’s decision to decline to schedule a further hearing. The applicant explained to the Tribunal that she had received the hearing invitation letter late. The Tribunal considered but did not accept this explanation, noting that the invitation had been sent to three addresses provided by her. In SZNTW v MIAC [2009] FMCA 1240 (Nicholls FM, 16 December 2009) at [112], it was found open to the Tribunal to exercise its discretion in s.426A to not reschedule a further hearing for the applicant’s wife in circumstances where she did not attend the scheduled one because she elected to attend work and no medical certificate was provided to explain her absence. See also SZORQ v MIAC [2011] FMCA 138 (Smith FM, 28 February 2011) where the Court found no error in the Tribunal proceeding to make a decision without a hearing in circumstances where the applicant did not provide a medical certificate or written submission within the timeframe set by the Tribunal following his non-appearance.

In these circumstances, and pursuant to section 426A of the Act, the Tribunal has decided to make its decision on this review application without taking any further action to enable the applicant to appear before it.
ASSESSMENT OF CLAIMS AND FINDINGS
Country of Reference
The applicants claim to be citizens of India and there are copies of their passports to the Department’s and the Tribunal’s files. The Tribunal finds that the applicants are citizens of the Republic of India, that India is the applicants’ country of nationality for the purposes of s.36(2)(a), and that India is their receiving country for the purposes of the Act’s complementary protection provisions.
Third country protection
Under ss.36 (3), (4), (5) and (5A) of the Act, the Tribunal can consider that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently, a country apart from Australia, including countries of which the non-citizen is not a citizen.
However, in this decision, the Tribunal’s assessment of the applicants’ claims and its findings have not been decided against these provisions and have been restricted to ss.36(2)(a) and (36(2)(aa).
Membership of the Same Family Unit
Noting the applicants were granted visitor visas by the Australian authorities in the past as a family unit and with no evidence to the contrary, the Tribunal accepts that the first named applicant married the second applicant in 2011 and finds that they remain married to each other.
Based on the available information, the Tribunal accepts the first applicant is in a genuine spousal relationship with the second applicant and that for the purposes of this review application the first applicant is a member of the same family unit as the second applicant in accordance with r.1.12(4)(a) of the Regulations.
With no evidence to the contrary, the Tribunal accepts the first applicant and the second applicant are the biological parents of the third applicant who is a dependent minor. For the purposes of this review application the first applicant is a member of the same family unit as the second applicant in accordance with r.1.21(4)(b) of the Regulations.
There is no claim and no suggestion based on the information before the Tribunal that he applicants have other biological children between them or that have any dependents currently residing in Australia.
Findings
Neither of the applicants appeared before the Tribunal to elaborate upon the written claims advanced by the first applicant at the time of their protection visas were lodged.
The second applicant claimed in her application for protection that she had her own specific claims; however, the applicants did not respond to the invitation to arrange an interview with the Department to support those claims outlined in their protection visa applications or provide any additional statements or documentary evidence. Furthermore, neither the applicants nor their authorised representative provided any submission to provide evidence and to present arguments to support the applicants’ critical claims to protection.
The applicant’s representative had been professionally conscientious in contacting the Tribunal with postponement requests on a regular basis and by appearing on behalf of the applicants on the date and at the time of the scheduled hearing to seek a postponement or an adjournment. However, the applicants did not attend and they have not provided adequate reasons for their non-attendance at the scheduled hearing.
The first and second applicants have presented very limited as well as unsubstantiated claims to fearing their return to India. This includes vague references to a fear of harm towards the first applicant arising from outstanding debts to banks and other lenders as a Chennai-based businessperson and fears about breaching a marital taboo by the first and second applicants entering into a marriage that was not arranged. It also vaguely mentioned and that the first applicant’s politically connected parents will him and the second applicant. Furthermore, the second applicant has made no attempt to elaborate claims that specifically pertain to her, despite having been granted ample opportunity to do so by both the Department and the Tribunal.
The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that his for the reasons 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 amounts to ‘significant harm’. It remains for that the applicant or the applicants to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicants themselves.
The decision maker is not required to make the applicants’ case for them. Nor is Tribunal required to accept uncritically any and all the allegations made by an applicant.[9] Had the applicants attended a hearing, the Tribunal would have explored their relevant claims with them and sought further information from them on a range of details relevant to their stated claims.
[9] MIEA v Gui (1997) 191 CLR 559 at 596; Nagalingharn v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70; Randhawa v MIEA (1994) 52 FCR 437 at 451.
The Tribunal has a number of issues upon which it requires a good deal more detailed evidence, such as how the first applicant was threatened or harmed in the past by those demanding outstanding debts and why the first applicant was fearful, before it could be satisfied that the applicants are in genuine fear of persecution.
For instance, the Tribunal would have asked the first applicant as the reasons he and the second applicant feared the banks collecting their debts under India’s lawful debt recovery arrangements, the size of the loan or loans and the rate of repayments, as well as whether he had any documentary evidence for the debt recovery. It would have asked about how repaying such lawful debts amount to a well-founded fear of persecution for a nexus reason outlined in s.5J91)(a) or a real chance of significant harm if the applicants were to return to India. The Tribunal would have sought more detail about the stock for which the loan or loans was used and how it came to be damaged as claimed. It would have enquired whether the loans from other sources were illicitly or lawfully arranged and what specific harm did the first applicant fear. The Tribunal would have also enquired into the amount of outstanding debt to be repaid, given it was claimed the outstanding amount was [amount] of Indian rupees which is about the equivalent of [amount] Australian dollars and given the applicant appeared to have work rights on his associated visa. It would have also enquired into how many threats had been conveyed to the first applicant, what was threatened and how they were conveyed and whether any of the applicants had been harmed in the past. However, although the first applicant was not unfit to attend the scheduled hearing and the second applicant had not adequately demonstrated a reason for her non-appearance, they did not attend to respond to such reasonable enquiries.
The Tribunal notes the applicants have made a claim about their fears of being harmed by the first applicant’s parents due to being in a love marriage without parental approval. It would have asked how their relationship developed prior to their marriage and the reasons the first applicant had not married earlier than 2011 given his parents had been adamant about arranged marriages and had been “always particular about Religion and beliefs”.
The Tribunal would have enquired into the first applicant’s residential history. In this regard, it noted the first applicant claimed in his Form 80 application to have resided between 1987 and 2015 in the same residence in [Name] Street, [Suburb] in Chennai. The same address is one the back page of both the first and second applicants’ passports.[10] These pieces of evidence strongly indicate that the applicants resided in the same residence as his parents after his marriage in 2011. Had the applicants attended the hearing, the Tribunal would have asked if the claimed residences fundamentally undermined the applicants’ claims regarding honour killing and related injuries if they returned to Chennai. Furthermore it would have asked how threats against him had been conveyed by his parents and to elaborate on any caste or religious element to these claimed threats. The Tribunal would have also enquired how the applicant was able to safely remain in Chennai married to his wife in 2011 and start a family in 2013 but they had not apply for a protection visa until 2015 in Australia or the reasons.
[10] [File number] Folios 94 and 98.
The Tribunal would have also raised country information about honour killings in India, including from the most recent DFAT report on India from October 2018 stating that according to local sources, violence associated with inter-religious or inter-caste marriage is more prevalent in Haryana, Uttar Pradesh and Rajasthan, especially if a Muslim man is involved or the man is from a lower caste than the woman. That said, sources observed that acceptance of marriages outside of castes or religion, or even of marriage partners not chosen by the family, depended heavily on individual family beliefs. Some families, particularly in urban areas, are more accepting, whereas others are extremely conservative and do not allow their children to choose spouses. DFAT furthers assesses that treatment of people in inter-religious or inter-caste marriages varies according to the families involved. In some cases the families of intending marriage partners may perpetrate violence against them. The Tribunal acknowledges that they have provided some limited country information about honour killings in Tamil Nadu and throughout India. However the overall information indicates that given the applicants are from southern and not northern India, the substantial amount of time spent in Tamil Nadu as a married couple and his claimed residential history, that the Tribunal would require more convincing evidence, oral or otherwise, to be satisfied that the first applicant belonged to such a family where marriages are not arranged by parents. However they did not attend a scheduled hearing or provide any supporting or corroborative documents to support these claims they have a real chance of serious harm or a real risk of significant harm arising from these claims and their personal circumstances.
It is further noted the applicants claim the first applicant’s parents are so influential that they can prevent the protection of the authorities to the applicants. The applicants’ written claims do not nominate any political or even religious figures or parties or movements yet they have had substantial opportunity to do so. Had they attended the scheduled hearing, it would have asked the first applicant to elaborate on his family’s political connections and how they would have prevented him or others in obtaining protection from the authorities. The Tribunal would have also enquired into whether there was sufficient state protection for the applicants based on this claim that the first applicant breached a marital or religious taboo by entering into a ‘love marriage’ and whether it was reasonable, in the sense of being practicable, to relocate to another part of India considering it is a vast and populated nation. However, the applicants did not attend.
The Tribunal accepts the second applicant has a health condition requiring [specialisation] surgery. The Tribunal would have likewise enquired whether there were any physical or mental health reasons the applicants would like not to advance as the reasons the applicants were not able to return to India. However, the information provided to date is very limited and in the case of mental health difficulties, unsubstantiated. Similarly, it would have enquired into their economic circumstances and whether this was relevant in not being able to return to India without having a real chance of being seriously harmed or a real risk of being significantly harmed or whether it was relevant when considering relocation would be reasonable when considering the circumstances cumulatively.
The Tribunal would have also enquired the reasons the first applicant returned to India on two occasions since he first arrived and the reasons his family did not depart earlier given they were granted visitor visas in late 2019. It would have further enquired into the extensive international travel undertaken by the applicants for business purposes indicating they were in a financial position to repay their claimed debts. As the travel and visa histories of the applicants indicated the applicants did not have a deep or urgent or even genuine personally held fear of persecution, either when they arrived or at the time of application, the Tribunal would have sought comment about these matters and whether they undermined any specific or their overall claims for protection. However they did not appear before the scheduled hearing.
Had the applicants attended the scheduled hearing, it would have enquired into the reasons they have not provided any documentary evidence or third party statements to support their parents given the substantial passage of time since their application for protection was lodged in 2015 and whether they would be able to provide such documents.
The Tribunal accepts the third applicant is a dependent minor if he were to return to India. The Tribunal notes that the applicants’ statement has not advanced any suggestion that their biological child will be seriously or significantly harmed for any specific reason. It would be reasonably assumed that there would be a negative impact arising on the third applicant arising from claims as presented to the Department. Had the first and second applicant attended the hearing, the Tribunal would have enquired into the impact of the first applicant’s debts on the third applicant and the impact of any honour killing or related injuries on him. However, even though the applicants were in a position to present arguments on behalf of the third applicant who is a vulnerable minor, they did not.
Based on the vague and unsubstantiated written claims about outstanding debts and the applicants’ non-attendance at the scheduled hearing, the Tribunal does not find this set of claims to be credible. While the claims in this regard are plausible, the applicants have not taken any opportunity provided by the Department or the Tribunal to substantiate them or provide any oral evidence. The claims are also undermined by the applicants’ extensive international travel indicating a capacity to repay a relatively small loan, as claimed in the written statement at the time of application. The Tribunal does not accept the applicants have a well-founded fear of persecution for a nexus reason outlined in s.5J(1)(a) arising these claims about banks, debt collectors or other money lenders, illicit or otherwise seeking to recover such debts from the applicants. Based on the same reasons, there are no substantial grounds for the Tribunal to believe the applicants, as a necessary and foreseeable consequence of being removed from Australia to anywhere in India, will face a real risk of significant harm.
Based on the very ill-defined and limited evidence before it and the available information that undermines their claims about breaching a marital or a religious taboo, the Tribunal finds the applicants lived in the same house as his parents whom he claims to fear right up to the time of his departure for Australia, including for the first four years of his marriage which he claims. The claims are further undermined by the applicant’s lack of urgency in departing India. There is no basis to this claim and the Tribunal does not accept that any of the applicants face any family hostility or enmity due the first and second applicants’ ‘love marriage’ without parental approval since their marriage in 2011. It does not accept any of the applicants have ever been or will be subjected to threatened honour killings or related injuries either before their departure or if they were return to their home state of Tamil Nadu in the foreseeable future. Indeed the Tribunal’s credibility concerns are so great, it does not accept the first and second applicants entered into a marriage without parental approval and finds this specific set of claims about a marital taboo being breached had been advanced only to remain in Australia on a lawful basis and not because the applicants have any genuine or deep or urgent fears of persecution. The Tribunal does not accept there is a real chance of serious harm for any reason mentioned in s.5J(1)(a) or a real risk of significant harm that would satisfy s.36(2)(a) or (aa) arising from this set of contrived claims.
Given the paucity of written, documentary and oral evidence and in the context of the Tribunal’s other adverse credibility findings, the Tribunal finds there is no real chance of serious harm or a real risk of significant harm arising from any personal, health or economic circumstances of the applicants, if they were to return to their home area of India or anywhere else.
Considering the applicants’ circumstances based on the overall available evidence, the Tribunal finds that they do not face a real chance of serious harm, either anywhere within their home area of Tamil Nadu or India more generally, now and into the reasonably foreseeable future, for any reason. The applicants’ fears of persecution are not well-founded for any reason mentioned in s.5J(1)(a) – the applicants’ nationality, ethnicity/race, their religion, their political opinion, imputed or otherwise, or their membership to any particular social group, or for any other reasons arising from their personal circumstances, if they return to their home area of Punjab or India more generally.
The applicants accordingly do not satisfy the criterion in s.36(2)(a).
Based on the available information and evidence, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to anywhere in India, there is a real risk of significant harm, including the applicants will suffer harm by way of being arbitrarily deprived of their lives; the death penalty will be carried out on them; they will be subjected to torture; they will be subjected to cruel or inhuman treatment or punish; or they will be subjected to degrading treatment or punishment.
The applicants accordingly do not satisfy the Act’s complementary protection provisions as required by s.36(2)(aa).
Conclusion
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.
Brendan Darcy
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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

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[2019] AATA 6584

3 September 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction