1619339 (Refugee)

[2017] AATA 1189

1619339 (Refugee) [2017] AATA 1189 (29 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1619339

COUNTRY OF REFERENCE:                  India

MEMBER:David Corrigan

DATE:29 June 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 29 June 2017 at 4:38pm

Catchwords
Refugee – Protection Visa – India – Refused recruitment by Muslim militants – Physical assault – Relocation reasonable – State Protection

Legislation
Migration Act 1958, ss 5(1), 36, 65, 91R, 91s
Migration Regulations 1994, Schedule 2

Cases
MIMA v Respondents S152/2003 (2004) 222 CLR 1
SZATV v MIAC (2007) 233 CLR 18
MIAC v MZYYL [2012] FCAFC 147
Randhawa v MILGEA (1994) 52 FCR 437
SZFDV v MIAC (2007) 233 CLR 51

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 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 [in] November 2014 and the delegate refused to grant the visa [in] October 2016.

3. The applicant appeared before the Tribunal on 9 May 2017 to give evidence and present arguments. 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. At the hearing, I gave the applicant and his agent the opportunity to make submissions and provide further evidence in support of his claims by 26 June 2017.  However, no further material or submissions have been provided and nor has a request for further time to do so been made and thus I have decided to proceeded to decision.

   RELEVANT LAW

6. 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, the applicant 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.

   Refugee criterion

7. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

8. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

9. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

10. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

11. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

12. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

13. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

14. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

15. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

16. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Relocation

17. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    State protection

18. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.

    Complementary protection criterion

19. 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 a protection 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 the applicant 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’).

20. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). 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.

21. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Relocation

22. Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    Protection from an authority

23. Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.

    Section 499 Ministerial Direction

24. 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 any country information assessment 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

25. The applicant claims to be an Indian national.  Based on the copies of his passport and ID card, I find that India is his country of nationality and also his receiving country

26. I accept that the applicant is a Sikh from [Jammu] and Kashmir State and that he has a father and a brother who are in the military and live in cantonments.  I accept that he was approached by Muslim militants to join them on several occasions and when he refused he was physically assaulted by them.  The applicant has been broadly consistent about these claims and there is independent evidence of a long running insurgency in this area.[1]  I accept that the applicant moved to Calcutta because of these events and then travelled to Australia.  I accept that after he came to Australia a classmate of his was detained by the authorities on suspicion of being linked to the militants.

    [1] Department of Foreign Affairs and Trade, DFAT Country Information Report India 15 July 2015.

27. The Australian Department of Foreign Affairs and Trade (DFAT) have stated:

    2.35 There has been a long-running insurgency against the Indian administration in Jammu and Kashmir, accompanied by frequent demonstrations which have often resulted in violence. As part of this campaign, clashes between militants and security forces have often occurred.[2]

    [2] Department of Foreign Affairs and Trade, DFAT Country Information Report India 15 July 2015.

28. The South Asia Terrorism Portal has reported that throughout 2016, Jammu and Kashmir accounted for 267 terrorism related fatalities as against 174 fatalities in 2015 and that fatalities were still occurring in 2017.[3] 

    [3] South Asia Terrorism Portal, Jammu and Kashmir Assessment – Year 2017,

29. Given this country information and the applicant’s past circumstances, I find that in Jammu and Kashmir, he faces a real chance of persecution at the hand of militants for reasons of his actual or imputed political opinion and his religion now and in the reasonably foreseeable future.  I further find that he faces a real risk of significant harm from militants in Jammu and Kashmir on this basis.  However, I consider this to be localised to his home area of Jammu and Kashmir state.  

30. The applicant stated at the hearing that he feared harm from the police from because of his refusal to join the militants.  However, I do not accept that he was or would be of any adverse interest to the police or the authorities for this or any reason.  I accept that a classmate of his was detained after he came to Australia, however the applicant did not indicate in his evidence that he was ever targeted by the police or that he had ever assisted the militants.  The applicant is a Sikh who has close family links in the army and the country information indicates that the militants and security forces are involved in a violent struggle against each and I find it implausible and highly remote that he would be viewed adversely by anybody associated with the state.  I find that he does not face a real chance of persecution, now or in the reasonably foreseeable future from the Indian authorities and state.  I further find that the risk of him being significantly harmed by the Indian authorities and state is remote.

31. DFAT have stated:

    5.5 According to a 2009 report by Human Rights Watch and other sources, the capacity of India’s police forces is limited by poor infrastructure, insufficient personnel, inadequate training, poor living conditions for low-ranking officers, insufficient remuneration and a lack of training and equipment to conduct their duties. India also has relatively few police officers per capita – 129 per 100,000 people, compared to a global average of 350.[4]

    [4] Department of Foreign Affairs and Trade, DFAT Country Information Report India 15 July 2015.

32. The US State Department have stated that Investigations and prosecutions of individual cases took place, but lax enforcement, a shortage of trained police officers, and an overburdened and under resourced court system contributed to infrequent convictions.[5]

    [5] US Department of State, County Reports on Human Rights Practices – India 2016.

33. Considering the country information, I find that the applicant would not be able to access a level of state protection in Jammu and Kashmir in accordance with the principles of MIMA v Respondents S152/2003.

    Considering the country information, I find that the applicants could not obtain protection from the authorities in Jammu and Kashmir such that there would not be a real risk that he will suffer significant harm: MIAC v MZYYL [2012] FCAFC 147.

    Relocation

34. India has a massive population of 1.2 billion[6] and there is no evidence before the Tribunal that militants from Jammu and Kashmir are operating in and targeting individuals in the applicant’s position outside this state.  It is also now over three years since the applicant departed India.  Considering all this, I find that the chance that he will be seriously or significantly harmed by militants outside this state is remote. 

    [6] Department of Foreign Affairs and Trade, DFAT Country Information Report India 15 July 2015.

35. At the hearing, the applicant claimed that when he went to Calcutta, local Muslims attacked him and beat and bashed him.  However, he made no mention of this in his protection visa application despite its obvious and critical significance to his case.  The applicant said he was not well-educated; however I do not consider this to be a satisfactory explanation for this omission and I do not accept that he was attacked by local Muslims in Calcutta or is of any adverse interest to them there as he claimed.  The Tribunal has no evidence before it that outside his home state Muslims are targeting persons in the applicant’s situation.  I find that the chance or risk that he will be seriously harmed or significantly harmed by Muslims outside his home state is remote.

36. At the hearing the applicant said he was not well-educated and had had [medical condition] and could not do hard work and would not be able to find a job.  However, he has not submitted any evidence of his inability to work and I am not satisfied that he cannot undertake work as he has claimed.  I have taken into account in his favour that he does not have family outside Jammu and Kashmir and his limited education and lack of previous employment; however in considering whether it reasonable for him to relocate I have find this is very much outweighed by the following factors that strongly indicate it would be reasonable for him to do so:

    ·DFAT have stated that there is a very high rate of internal mobility within India and that millions of Indians successfully relocate within India temporarily or permanently each year.  They state that in general there are a range of viable internal relocation options for individuals seeking protection from discrimination or violence.[7]

    ·The applicant is a Sikh and country information indicates that they are all over India, have access to employment and are able to practise their religion.[8]  DFAT assess that Sikhs in contemporary India have no heightened risk of official or societal discrimination beyond that experienced by the broader community.[9]

    ·The applicant told the Tribunal that he speaks Hindi which is an official language of India and spoken by 40% of the population.[10]

    ·India has a low unemployment rate of 3.4%.[11]

    ·The applicant has no family of his own to support.

    [7] Department of Foreign Affairs and Trade, DFAT Country Information Report India 15 July 2015.

    [8] Office of the Registrar General & Census 2001, Population by Religious Communities, Census India website < Singh Bajwa, S 2006, ‘Colossal Disparity in Population: Part I’, Sikh Review, January < Accessed 15 August 2012; UK Home Office 2012, Operational Guidance Note – India, June, p. 9 < Department of Foreign Affairs and Trade, DFAT Country Information Report India 15 July 2015.

    [10] Online Computer Library Center (n.d.), Languages of India < Department of Foreign Affairs and Trade, DFAT Country Information Report India 15 July 2015.

    [11] Times of India, Unemployment in India to increase marginally in 2017-2018: UN Report, 13 January 2017,

1. Considering all of the individual circumstances, and the country information on a cumulative basis, I find that it would be reasonable for the applicant to relocate to another state in India to avoid the real chance of serious harm he faces in his home state of Jammu and Kashmir.  Accordingly, I find that he does not have a well-founded fear of persecution in India and he is not a refugee.

2. Considering the independent country information and the applicant’ s individual circumstances on a cumulative basis, I find that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that he will suffer significant harm and that 36(2B)(a) applies his case.  Accordingly, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India that there is a real risk that he will suffer significant harm.

   Section 438 information

3. At the hearing, I informed the applicant that there was a s.438 certificate on the Department’s file that referred to records of an identity investigation and that the Department had stated that disclosure of this information would be contrary to the public interest because the release of this information relating to these records could jeopardise investigations and sources of information and should not be released.  I stated that I considered this certificate to be valid but that I considered the information to be neutral as it related to him coming to Australia on another person’s passport and that I had no concerns as to his real identity and name as evidenced by his passport and that this was not an issue in his case.  The applicant and his agent did not comment on my observations except to say that they had put in a FOI request.  As stated at the hearing, I consider the certificate to be valid but that the material it covers is neutral (neither adverse or positive) to his claims.

   Conclusions

4. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

5. 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).

6. 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

7. The Tribunal affirms the decision not to grant the applicant a Protection visa.

   David Corrigan
   Member