1616860 (Refugee) - [2019] AATA 3417

1616860 (Refugee) [2019] AATA 3417 (4 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1616860
COUNTRY OF REFERENCE:                   India
MEMBER:Jason Pennell
DATE:4 March 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa
Statement made on 4 March 2018 at 1.42pm

CATCHWORDS

REFUGEE – protection visa – India – religion – Sikh – particular social group – mixed caste marriage – fear of physical assault – honour killing – state protection – delay in applying for protection – internal relocation – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Applicant A v MIEA (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379
DFE16 v MIBP [2017] FCCA 308
Kavan v MIMA [2000] FCA 370
MIAC v MZYYL [2012] FCAFC 147
MIAC v SZQRB [2013] FCAFC 33
MIBP v SZSCA (2014) 254 CLR 317
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Subramanium v MIMA (1998) VG310 of 1997
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
SZSRQ v MIBP [2014] FCCA 2205
Zhang v RRT & Anor [1997] FCA 423

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 September 2016 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).
2.The visa applicant applied for the visa on 29 July 2015. The delegate refused to grant the visa on the basis that she was not satisfied that the applicants were people to whom Australia has protection obligations as outlined in s. 36(a) or (aa) of the Migration Act 1958 (the Act).
3.The applicant appeared before the Tribunal on 18 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [name] (‘the applicant’s wife’). The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
4.The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
5.For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

RELEVANT LAW

The criteria for a protection visa are set out in s.36 of the Act…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] AATA 3417
Decision Date: 4 March 2019

CaseChat Overview and Summary

The applicant, an Indian national of the Sikh religion, sought review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The applicant claimed to fear persecution in India due to his religion and his marriage to a woman from a different caste, alleging a risk of honour killing. The Administrative Appeals Tribunal had affirmed the Minister's decision, and the applicant sought judicial review of that Tribunal decision.

The primary legal issues before the court were whether the Tribunal had erred in its assessment of the applicant's claims regarding his fear of persecution based on his religion and his membership in a particular social group, specifically his mixed-caste marriage. The court was required to consider whether the Tribunal had adequately assessed the availability and effectiveness of state protection in India and whether the Tribunal had properly considered the possibility of internal relocation as a protection mechanism. The court also had to determine if the Tribunal had given sufficient weight to the delay in the applicant's initial application for protection.

The court affirmed the Tribunal's decision, finding that the Tribunal had not erred in law. It was held that the Tribunal had properly considered the evidence regarding the applicant's religious beliefs and the potential risks associated with his mixed-caste marriage. The Tribunal's conclusion that the applicant would likely be able to access effective protection from the state authorities in India was also upheld. Furthermore, the Tribunal's assessment that internal relocation was a viable option for the applicant was found to be reasonable. The court agreed with the Tribunal's reasoning that the delay in the applicant's application did not invalidate his claims but was a factor to be considered in the overall assessment.

The application for judicial review was dismissed.

Orders