1618656 (Refugee)

[2019] AATA 6581

1618656 (Refugee) [2019] AATA 6581 (5 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1618656

COUNTRY OF REFERENCE:                   India

MEMBER:Denise Connolly

DATE:5 December 2019

PLACE OF DECISION:  Sydney

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

Statement made on 05 December 2019 at 9:54am

CATCHWORDS
REFUGEE – protection visa – India – religion – imputed political opinion – membership and activity in Muslim community organisation – attacks and threats to applicant and family by members of Hindu religious/political party – no response to Tribunal’s communication – no appearance at hearing – credibility – unreliable evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth)

CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155


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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 28 October 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of India, applied for the visa on 7 January 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.

3. There is a s.438 certificate on the Department’s file purportedly certifying that folio 61 should not be disclosed because it would be contrary to the public interest as the folio contains “information relating to an internal working document and business affairs”. Folio 61 is the Onshore Protection 866 Processing Checklist.  The Tribunal does not accept it would be contrary to the public interest to disclose this information. Having considered the certificate and the reasons given for why disclosure would be contrary to the public interest, the Tribunal is not satisfied the reasons given properly identify a basis for non-disclosure. Accordingly the Tribunal finds the certificate is not valid.

4. On 7 November 2019, the Tribunal wrote to the applicant advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to appear before it on 4 December 2019 at 12:30PM to give evidence and present arguments relating to the issues arising in his case. The letter informed the applicant that if he did not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable him to appear before it.  The invitation was sent to the applicant using the email address provided in connection with the review. The Tribunal also sent two SMS hearing reminders to the applicant on 27 November 2019 and 3 December 2019 using the last mobile number provided to the Tribunal by the applicant.

5. The applicant did not attend the hearing at the scheduled date and time. Having reviewed the material before it, the Tribunal is satisfied that the applicant was properly invited to a hearing and the invitation was sent by email using the correct email address provided by the applicant. There is no evidence to suggest that the email transmission was unsuccessful. The Tribunal is also satisfied the applicant was reminded by two SMS messages about the hearing.  No postponement of hearing has been sought. No satisfactory reason for the non-appearance has been given. Accordingly the Tribunal has decided to proceed to make its decision on the evidence before it.

   CLAIMS AND EVIDENCE

6. When making the visa application the applicant provided the following information. He was born on [date] in Chennai, Tamil Nadu, India. He is a citizen of India. He provided a copy of his Indian passport issued on [in] 2015 obtained through normal procedures. He does not have the right to reside in any other country. He speaks, reads and writes in Tamil and speaks in Hindi. His religion is Muslim. He married [in] November 2007 and has two children, sons born [date 1] and [date 2].  His parents, wife and children reside in [Suburb], India. Prior to travelling to Australia he was employed as [a job position] in [job area] with [Company]. He applied for a [temporary] visa on 7 September 2015 which was granted on 23 September 2015. He arrived in Australia as the holder of a [temporary] visa on 20 October 2015.

7. In a written statement the applicant claims he was very interested in doing public service so he joined the [Religious Community Organisation] and participated in services such as garbage cleaning, helping elders, conducting blood donations and helping poor children with their education. He had a good name, irrespective of religion. However some people in council from BJP[1] warned him to stop his community services. Despite their threats, he continued his service.  [In] August 2015 a leader was speaking about a petition to the government regarding road and water problems in the area. A person named ‘[Mr A]’ who was listening to the speech suddenly hit the leader with a slipper. The applicant became angry and fought with [Mr A] who then threatened the applicant.  He thought of complaining to the police, but did not because [Mr A] was from the RSS group, the ruling party in council.

   [1] Bharatiya Janata Party, one of the major political parties in India.

8. The applicant claims the next day, on his way to work, while waiting at the bus stop, [Mr A] and his friends attacked him with sticks and abused him. He walked away but they attacked him, tearing his shirt. [Mr A] attacked him with a billhook. He tried to push [Mr A] away and ran to the nearest police station. The police did not take the complaint, instead told him that they are the ruling party people and the police are helpless. They told the applicant he better leave the city for a while until the problem resolved.

9. The applicant claims he did not go home until 11 PM when he got a phone call from his family to come home immediately. He returned and his belongings had been broken. His family were crying. His wife told him [Mr A] visited the house and assaulted her and threatened to kill the applicant.  The applicant relocated for a few days to a hotel in Chennai. His wife called daily and said people were roaming near their house, searching for the applicant. She told him to stay away so he stayed in the hotel.  [Later in] August 2015 his wife called to inform him that [Mr A] knew of his whereabouts. [Mr A] had visited the family home and tortured the applicant’s father. His wife had no other option but to tell [Mr A] where the applicant was staying. The applicant vacated the hotel and a person near the hotel approached him, having overheard his phone conversation, and asked the applicant if he required any help. After explaining his situation, the person said he would help the applicant out. He told the applicant it would be better to travel to Australia as a refugee because Australia can save him.  As soon as he got his visa, he settled his family at a friend’s house and came to Australia.

10. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant was interviewed by the delegate on 27 October 2016. The Tribunal has listened to the recording of the interview. Some of his oral evidence is recorded in the decision record. The delegate was not satisfied the applicant is a credible witness. She found his oral evidence at the interview to be vague and lacking in detail.  She found his description of the attack in August 2015 to be illogical and farfetched. She found his inability to provide details regarding [Mr A] to cast doubt over the reliability of his claims. She did not accept the applicant’s claims about the incident leading to the applicant being of adverse interest. She did not accept he was stalked and attacked or that he is at risk of harm in India. She found he is not a person in respect of whom Australia has protection obligations.

    CRITERIA FOR A PROTECTION VISA

11. 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.

12. 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.

13. 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).

14. 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.

15. 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

16. 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

    Nationality

17. The applicant claims to be a citizen of India and has provided to the Department a copy of his Indian passport. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of India. It finds India is his receiving country for the purpose of assessing his claims. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any other country for the purposes of the Act.

    Does the applicant have a well-founded fear of persecution?

18. The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is well founded. It remains for the applicant to satisfy the Tribunal that all of 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 applicant himself in as much detail as is necessary to enable the Tribunal to establish the relevant facts. The Tribunal is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)

19. In this case the applicant has made several claims in his written and oral evidence. He attended the interview with the delegate, as recorded in the delegate’s decision record, provided to the Tribunal by the applicant.  However the delegate recorded a number of concerns about his evidence. The Tribunal has considered his written and oral evidence and also has concerns about the reliability of his evidence. As he did not attend the hearing the Tribunal was unable to obtain further information about his claims, or to test their veracity. The Tribunal wished to discuss with the applicant why he was of adverse interest to [Mr A] or anyone else. His evidence indicates he ‘fought’ with [Mr A] who had thrown a slipper at a speaker. Apart from his community work, it does not indicate that he was politically active in India or that he had a profile such that he would attract the ongoing attention and death threats from any opposition.  Also the Tribunal has not seen evidence to indicate that the RSS (Rashtriya Swayamsevak Sangh )[2] is particularly powerful in Tamil Nadu to the extent that they had influence over the police. It is not clear to the Tribunal why [Mr A], from the RSS group, was so motivated to pursue the applicant, threatening to kill him. Nor is it clear to the Tribunal why his involvement in the [Religious Community Organisation] would draw the adverse attention of BJP members as he claims. On the evidence before it the Tribunal is not satisfied the applicant’s claims are true.

    [2] Rashtriya Swayamsevak Sangh, a secretive, paramilitary Hindu communal group

20. Accordingly the Tribunal is not satisfied the applicant participated in services provided by the [Religious Community Organisation] or that he was warned by BJP members to stop his community services. It is not satisfied he was involved in an incident with [Mr A] in August 2015 or that he was threatened by [Mr A].  It does not accept that while waiting at the bus stop, [Mr A] and his friends attacked him with sticks and a billhook and abused him. Nor does it accept the police would not take his complaint, because ‘they’ were ruling party people, rendering the police helpless. Nor does it accept the police told the applicant to leave the city until the problem resolved.

21. As the Tribunal has not accepted these claims it also does not accept the applicant’s claims that he went into hiding and [Mr A] visited his house, assaulted his wife and damaged his property. It does not accept the applicant relocated because of fear. It does not accept that his father was tortured or that his wife told [Mr A] where the applicant was staying.  It finds his claim that a person near the hotel approached him, having overheard his phone conversation, and asked the applicant if he required any help, to be unpersuasive. It does not accept that this encounter led to the applicant’s decision to travel to Australia and apply for protection. The Tribunal is not satisfied the applicant travelled to Australia because he fears harm in India. It is not satisfied anyone has threatened to harm the applicant if he returns to India. It is not satisfied the applicant fears harm in India for any reason. It has formed the view that applicant has manufactured all of his claims.  

22. On the evidence before it, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in India for reason of his religion or political opinion or imputed political opinion, or for any other reason set out in the Act, or that there is a real chance that he would be persecuted for one or more of those reasons.  Therefore, he does not meet the definition of refugee. Accordingly, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

    Does the applicant meet the complementary protection criteria?

23. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, it has considered whether he may meet the criterion for the grant of a protection visa under the complementary protection criterion.

24. As indicated above, the applicant has failed to provide persuasive evidence regarding his claims. There are serious concerns about the reliability of his evidence and the Tribunal has not accepted any of his claims.  As the applicant did not attend his hearing, the Tribunal has been unable to obtain further information about his claims, or to test their veracity. In view of the above findings and on the evidence before it, the Tribunal is not satisfied that the applicant suffered harm in India or that there is a real risk that he will suffer significant harm if he returns to India.

25. On the evidence before it, the Tribunal is not satisfied that 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 that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act. 

26. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    Denise Connolly
    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.

    …