1619620 (Refugee) - [2018] AATA 4850

1619620 (Refugee) [2018] AATA 4850 (10 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1619620
COUNTRY OF REFERENCE:                  India
MEMBER:Nicola Findson
DATE:10 October 2018
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 October 2018 at 10:58am
CATCHWORDS
REFUGEE – protection visa – India – religion – Christian convert – assisted Muslim family – communal violence – physical assault – threats of violence – fear of killing – internal relocation – delay in applying for protection – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2

CASES
Andaraj Subramaniam v MIMA [1998] FCA 305
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of India, applied for the visa on 15 October 2015, and the delegate refused to grant the visa on 4 November 2016.
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 themself 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…

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.

Continue reading 1619620 (Refugee)

Details

AGLC: 1619620 (Refugee) [2018] AATA 4850
Case: [2018] AATA 4850
Decision Date: 10 October 2018

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse a protection visa. The applicant, an Indian national who claimed to have converted from Hinduism to Christianity, alleged he faced persecution in his home province of Tamil Nadu due to his religious conversion and his family's assistance to a Muslim family. He contended that Hindu fundamentalists, with strong political connections, targeted his family, leading to threats, physical assault, and his father's forced relocation. The applicant claimed he had not returned to India since 2008 due to ongoing family stress and threats.

The primary legal issue before the Tribunal was whether Australia owed protection obligations to the applicant under the Migration Act 1958 (Cth). This required determining if the applicant met the criteria for a protection visa, specifically whether he had a well-founded fear of persecution for a Convention reason or if Australia had complementary protection obligations due to a real risk of significant harm upon removal. The Tribunal was required to assess the applicant's credibility and the veracity of his claims in light of available country information and departmental guidelines.

The Tribunal considered the applicant's claims, including his alleged conversion to Christianity, his family's actions in sheltering a Muslim family, and the subsequent threats and violence he claimed his family faced from Hindu fundamentalists. It also took into account the applicant's delay in applying for a protection visa after arriving in Australia and his previous periods of residence in other countries. The Tribunal applied principles regarding the onus of proof in protection visa applications, noting that while applicants are generally given the benefit of the doubt if credible, their claims must be substantiated and not inconsistent with independent country information. The Tribunal found that the applicant had not satisfied the onus of proof to establish a well-founded fear of persecution or a real risk of significant harm.

The Tribunal affirmed the delegate's decision to refuse the protection visa. The applicant's claims were not accepted as credible, particularly in light of the delay in lodging his application and evidence suggesting he had returned to India after the alleged initial threats. The Tribunal concluded that Australia did not have protection obligations towards the applicant.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.Background and protection claims The Tribunal has before it the Department’s file [and] the Tribunal’s file relating to the applicants’ protection visa application. The Tribunal also has had regard to the material referred to in the delegate’s decision (a copy of which the applicant provided to the Tribunal), as well as other material available to it from a range of sources. In his visa application, the applicant states he was born on [date], in [Tiruchirappalli], India. He states he attended school in Tamil Nadu between [specified years], and lived in Mumbai between 2004 and 2008. He states he is of the Christian religion and is fluent in Tamil, English and Hindi. [In] December 2013, the applicant arrived in Australia as the holder of a subclass 400 Temporary Work (Short Stay) visa, which was valid until [March] 2014. [In] February 2014, a nomination for a business sponsorship was lodged and the applicant lodged an associated application for a Class UC subclass 457 Temporary Work (Skilled) visa. Although the business sponsorship was approved [in] May 2014, the applicant’s subclass 457 application was withdrawn [in] July 2015. The applicant became an unlawful non-citizen when his bridging visa subsequently ceased [in] August 2015. He lodged his protection visa application on 15 October 2015. The following is a summary of the claims and information provided by the applicant in his protection visa application:·He is Hindu by birth but converted to Christianity. ·In his home province of Tamil Nadu around 90% of the population are Hindu.·His area was affected by political strife during election time when strictly religious Hindus wanted to kill the Muslim and Christian communities residing there.·His father allowed a Muslim family, who he was friends with, to hide in their house – for three days - until they were able to seek aid from the government and arrange to settle in another State.·The police are not trustworthy because most officers are Hindu.·His family, as Christians, believe in visiting the church on a daily basis, if possible. ·He claims his family was targeted by local politicians who thought they were trying to convert others to Christianity. He claims his father considered relocating to another state because he was threatened every now and then by these politicians.·His father used his contacts to arrange for him to work in the [specified] industry in [Country 1] in 2008.·Although he stayed in [Country 1] for a few years, since there is no way to permanently stay in [Country 1] he decided to move to another country to settle.·He has not returned to India since 2008 because his family is still under stress and his father has advised him not to return there.·After he left India, his father was threatened as to his whereabouts. He claims that his father was forced to relocate to another state to save other members of his family.·The fundamentalist Hindus discovered his father had helped a Muslim family and tried to kill him in a way that looked like an accident.·The Hindu fundamentalists are preventing his family getting basic facilities.·He is unable to obtain state protection because the Hindu fundamentalists have strong political contacts.The Delegate’s Decision

Evidence

Evidence Before The Court

The applicant also provided the Tribunal with an undated letter purporting to be from [a reverend] which states that the applicant attended his church in Tamil Nadu and was baptised [in] June 1995. A photograph of the applicant alongside a Catholic Bishop who the applicant indicates is from the [named church] was also provided to the Tribunal.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether Australia has protection obligations in respect of the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. The applicant travelled to Australia on a valid Indian passport, a copy of which is contained on the Departmental file. The Tribunal accepts that he is an Indian national and has assessed his claims against that country. Before finalising this decision record, the Tribunal listened to the audio recording of the applicant’s hearing and based its decision on the consideration of that recording. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is “well-founded”, or that it is for the reason claimed. 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 in administrative enquiries and decision-making, the relevant facts of an individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not 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). In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims. The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at paragraph 196 197 and 203 204 recognises the particular problems of proof faced by an applicant for refugee status and states that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt. Given the particular problems of proof faced by applicants a liberal attitude on the part of the decision maker is called for in assessing refugee status. On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547). On the other hand, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true (See MIMA v Rajalingam (1999) 93 FCR 220).

Decision

Reasons for decision

The following is a summary of the claims and information provided by the applicant in his protection visa application:·He is Hindu by birth but converted to Christianity. ·In his home province of Tamil Nadu around 90% of the population are Hindu.·His area was affected by political strife during election time when strictly religious Hindus wanted to kill the Muslim and Christian communities residing there.·His father allowed a Muslim family, who he was friends with, to hide in their house – for three days - until they were able to seek aid from the government and arrange to settle in another State.·The police are not trustworthy because most officers are Hindu.·His family, as Christians, believe in visiting the church on a daily basis, if possible. ·He claims his family was targeted by local politicians who thought they were trying to convert others to Christianity. He claims his father considered relocating to another state because he was threatened every now and then by these politicians.·His father used his contacts to arrange for him to work in the [specified] industry in [Country 1] in 2008.·Although he stayed in [Country 1] for a few years, since there is no way to permanently stay in [Country 1] he decided to move to another country to settle.·He has not returned to India since 2008 because his family is still under stress and his father has advised him not to return there.·After he left India, his father was threatened as to his whereabouts. He claims that his father was forced to relocate to another state to save other members of his family.·The fundamentalist Hindus discovered his father had helped a Muslim family and tried to kill him in a way that looked like an accident.·The Hindu fundamentalists are preventing his family getting basic facilities.·He is unable to obtain state protection because the Hindu fundamentalists have strong political contacts.The Delegate’s Decision The delegate’s decision record sets out his findings and reasons for refusing to grant the applicant a protection visa. The decision record indicates that given the applicant’s vague claims and lack of supporting evidence, the delegate did not accept the applicant is a practising Christian. The decision record also sets out that although country information does indicate that Hindu nationalist groups were active in Tamil Nadu, the applicant’s home area, around the time of the May 2014 elections that put the Bharatiya Janata Party in power, the applicant arrived in Australia in 2013 and has not returned to India since then. The delegate noted that the applicant became a temporary resident of [Country 1] in 2008 and was in [Country 2] for two months prior to coming to Australia. The delegate noted that the applicant returned to India in 2010, which indicated that at that time he did not hold a fear of harm. The delegate noted that the applicant arrived in Australia in December 2013, but did not seek protection until October 2015, when he had become an unlawful non-citizen and had few other visa options open to him, and that this undermined the credibility of his claims. The delegate also considered that in Tamil Nadu, in particular the cosmopolitan city of Chennai, state protection is available and durable.Application for review

Ratio Decidendi

Legal Principle Established

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.Background and protection claims The Tribunal has before it the Department’s file [and] the Tribunal’s file relating to the applicants’ protection visa application. The Tribunal also has had regard to the material referred to in the delegate’s decision (a copy of which the applicant provided to the Tribunal), as well as other material available to it from a range of sources. In his visa application, the applicant states he was born on [date], in [Tiruchirappalli], India. He states he attended school in Tamil Nadu between [specified years], and lived in Mumbai between 2004 and 2008. He states he is of the Christian religion and is fluent in Tamil, English and Hindi. [In] December 2013, the applicant arrived in Australia as the holder of a subclass 400 Temporary Work (Short Stay) visa, which was valid until [March] 2014. [In] February 2014, a nomination for a business sponsorship was lodged and the applicant lodged an associated application for a Class UC subclass 457 Temporary Work (Skilled) visa. Although the business sponsorship was approved [in] May 2014, the applicant’s subclass 457 application was withdrawn [in] July 2015. The applicant became an unlawful non-citizen when his bridging visa subsequently ceased [in] August 2015. He lodged his protection visa application on 15 October 2015. The following is a summary of the claims and information provided by the applicant in his protection visa application:·He is Hindu by birth but converted to Christianity. ·In his home province of Tamil Nadu around 90% of the population are Hindu.·His area was affected by political strife during election time when strictly religious Hindus wanted to kill the Muslim and Christian communities residing there.·His father allowed a Muslim family, who he was friends with, to hide in their house – for three days - until they were able to seek aid from the government and arrange to settle in another State.·The police are not trustworthy because most officers are Hindu.·His family, as Christians, believe in visiting the church on a daily basis, if possible. ·He claims his family was targeted by local politicians who thought they were trying to convert others to Christianity. He claims his father considered relocating to another state because he was threatened every now and then by these politicians.·His father used his contacts to arrange for him to work in the [specified] industry in [Country 1] in 2008.·Although he stayed in [Country 1] for a few years, since there is no way to permanently stay in [Country 1] he decided to move to another country to settle.·He has not returned to India since 2008 because his family is still under stress and his father has advised him not to return there.·After he left India, his father was threatened as to his whereabouts. He claims that his father was forced to relocate to another state to save other members of his family.·The fundamentalist Hindus discovered his father had helped a Muslim family and tried to kill him in a way that looked like an accident.·The Hindu fundamentalists are preventing his family getting basic facilities.·He is unable to obtain state protection because the Hindu fundamentalists have strong political contacts.The Delegate’s Decision