1619830 (Refugee)

[2019] AATA 3774

1619830 (Refugee) [2019] AATA 3774 (26 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1619830

COUNTRY OF REFERENCE:                  India

MEMBER:Paul Windsor

DATE:26 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 26 February 2019 at 11:13am

CATCHWORDS

REFUGEE – protection visa – India – religion – Sikh – fears religious riots – no response to tribunal communications – non-attendance at hearing – credibility issues – applicant resides in Sikh dominant Punjab – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5AAA, 5J(1), 5K-LA 36, 65, 441A(5), 426A, 499
Migration Regulations 1994, Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
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 on 9 November 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 17 November 2015.  He claimed to fear life threatening religious riots targeting the Sikh community.  The delegate refused to grant the visa on the basis that the applicant resides in Phagwara, Punjab, where Sikhism is the dominant religion.  The delegate noted that the applicant’s claims are extremely vague, lack detail and are completely unsubstantiated.  The delegate also cited country information from the Department of Foreign Affairs and Trade (DFAT) which commented that DFAT assesses that Sikhs in contemporary India have no heightened risk of official or societal discrimination beyond that experienced by the broader community.

3. The applicant sought review of that decision on 24 November 2016.  The applicant provided the Tribunal with a copy of the delegate’s decision record.[1]

   [1] See folios 1-7 of the Tribunal file.

4. On 4 February 2019 the Tribunal wrote to the applicant advising that the Tribunal had considered all the material before it relating to his application but was unable to make a favourable decision on that information alone.  The applicant was invited to appear before the Tribunal to give evidence and present arguments at a hearing at 9:00 am on 26 February 2019.  The letter advised the applicant that if he was not able to attend the hearing he should advise the Tribunal as soon as possible and to note that the Tribunal will only change the date if satisfied he has a very good reason for being granted an adjournment.  He was advised that if the Tribunal did not advise him an adjournment had been granted, he must assume that the hearing will go ahead. 

5. The applicant was also advised that if he did not attend the scheduled hearing the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal. 

6. The applicant was sent SMS reminder messages regarding the hearing on 19 and 25 February 2019 to the mobile phone number he provided in his review application.  He had not advised the Tribunal of any change to his contact details.  Delivery failed messages were returned in relation to both of these SMS messages.

7. No response to the hearing invitation letter was received from the review applicant and the applicant did not attend the hearing scheduled for 9:00 am on 26 February 2019.  Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.441A(5), the invitation has not been returned to sender, and that SMS reminders about the hearing were sent to the mobile phone number provided by the applicant on two separate occasions.  The applicant did not respond to the invitation to attend the hearing and has not contacted the Tribunal to explain his non-attendance or sought to engage further in the review process, including through the provision of further submissions since he lodged the review application on 24 November 2016 or since the invitation to attend a hearing was sent to the applicant on 4 February 2019.  In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   CRITERIA FOR A PROTECTION VISA

8. 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.

9. 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.

10. 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 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).

11. 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.  

12. 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

13. 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 and Border Protection (now the Department of Home Affairs) (the Department)  – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. In his Protection visa application the applicant stated he was born in Phagwara in Punjab state India on 5 April 1990.  The stated he is a Sikh who follows the Sikh religion and speaks, reads and writes English, Hindi and Punjabi.  He indicated he had never married or been in a de facto relationship.  He stated he most recently departed India legally [in] July 2014 and arrived in Australia [in] July 2014.[2]  He first arrived in Australia [in] November 2008, entering on a [temporary] visa.[3]

    [2] See folios 13-37 of the Departmental file.

    [3] See folio 62 and 65 of the Departmental file.

    Claims from the Protection visa application

15. The applicant’s claims from his Protection visa application are summarised as follows:[4]

    ·He left India for [good] work opportunities and a bright future.

    ·Everything was normal when he left India.  Since then circumstances have changed.  Some religious riots are happening which are life threatening.  When it happened last time was in 1984.  There was no safe state for the Sikh community.

    ·He fears people from another religion or community could kill, burn or beat him.  Mistreating will be there in everyday life.

    ·The government supports the majority of any community and his community is in the minority.

    ·He can’t relocate as mistreatment and harm could happen in every state as there are Hindus in every part of the country.

    [4] See folios 16-18 of the Departmental file.

    Findings and reasons

16. The issue in this review is whether the applicant faces a real chance of suffering persecution involving serious harm from the Hindu or other non-Sikh religious communities should he return to India because he is a member of the Sikh faith; and if not, whether there are 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 will suffer significant harm.

17. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Identity

18. On the basis of the copy of the applicant’s Indian passport provided to the Department,[5] the Tribunal accepts that the applicant is a citizen of India and that his identity is as he claims it to be.  The Tribunal accepts that India is the applicant’s ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.

    Assessment of claims

    [5] See folios 49-67 of the Departmental file.

19. The applicant claims that since he left India circumstances have changed and there are religious riots which are life threatening.  He states there is no safe place for Sikhs in India as Hindus are in every part of the country.

20. The applicant’s claims are vague, lack detail and he has provided no supporting information in relation to his claims. 

21. 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.  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 feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.  A decision-maker is not required to make the applicant's case for him or her.  It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.  The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA.  Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.  (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

22. In considering this matter the Tribunal had regard to the following information drawn from DFAT’s current Country Information Report on India:[6]

    ·India has conducted a comprehensive census every ten years since 1951. The 2011 census stated India’s population was approximately 1.21 billion with an average annual population growth rate of 1.64 per cent between 2001 and 2011.  79.8 per cent of the population identified as Hindu, 14.2 per cent Muslim, 2.3 per cent Christian, 1.7 per cent Sikh, and less than one per cent each identified as Buddhist, Jain or others.

    ·Sikhism is a monotheistic religion founded in the Punjab region (now part of both India and Pakistan) in the 15th century. Sikhs consider themselves disciples of the Ten Gurus, beginning with Guru Nanak (1469-1539) and ending with Gobind Singh (1666-1708).

    ·According to the 2011 census, the Sikh population of India was approximately 19 million, 1.7 per cent of the total population at that time. Most Sikhs (75 per cent) live in Punjab, where they comprise around 55 per cent of the population. Sikhs are a majority in Punjab.

    ·Section 15 of the Constitution prohibits discrimination against any citizen on the grounds of religion. Section 25 guarantees the right to freely profess, practise and propagate religion, and section 26 guarantees every religious denomination or any sect the freedom to manage its own religious affairs. Federal law provides minority community status to six religious groups: Muslims, Sikhs, Christians, Parsis, Jains and Buddhists. State governments can grant minority status to religious groups that are minorities in a particular region.

    ·One of the points of difference between Sikh groups is the extent to which they support the creation of an independent Sikh state known as ‘Khalistan’. The 1966 creation of the Punjabi-speaking Sikh majority state of Punjab went some way to addressing these demands. During an internal struggle within the Sikh community in 1982, separatist leader Jarnail Singh Bhindranwale and his followers moved into the Golden Temple complex in Amritsar. In June 1984. The Indian government ordered the army to eject Bhindranwale and his followers from the complex in an offensive known as ‘Operation Blue Star’. The army bombarded the Golden Temple complex, inflicting serious damage. Bhindranwale and many of his supporters were killed during the operation.

    ·In retaliation for Operation Blue Star, two of then-Prime Minister Indira Gandhi’s Sikh bodyguards assassinated her at her home in New Delhi in October 1984. In the days that followed, mobs seeking revenge for the assassination attacked Sikh homes and businesses, including in New Delhi. Approximately 3,000 people, mostly Sikhs, were killed in the violence. Security forces carried out further operations to suppress Sikh separatism during the late 1980s, during which allegations emerged of torture, extrajudicial killings and deaths in custody carried out by security forces.

    ·Sources agree that, since the late 1980s and early 1990s, Sikhs have lived peacefully in India and the majority of Sikhs do not experience societal discrimination or violence. Sikhs who advocate for an independent ‘Khalistan’ may be subject to attention by authorities.

    ·DFAT assesses that Sikhs in India generally face a low level of official and societal violence and discrimination.

    [6] DFAT Country Information Report, India, 17 October 2018, sections 2.4-2.6, 3.4-3.6 and 3.16-3.19.

23. The Tribunal finds that the relevant country information does not support the applicant’s claims that things have changed for the Sikh community since he left India and that there is a risk that he would be harmed or killed in anti-Sikh riots.  While the country information indicates that there were anti-Sikh riots in 1984 following the killing of former Prime Minister Indira Gandhi by her Sikh bodyguards, it indicates that since the late 1980s and early 1990s Sikhs have lived peacefully in India and the majority of Sikhs do not experience societal discrimination or violence.  There are Constitutional provisions that prohibit discrimination against any citizen on the grounds of religion and guarantee the right to freely profess, practise and propagate religion, and the freedom for religions and sects to manage their own religious affairs.  The applicant is from Punjab state and the country information indicates that most Sikhs (75 per cent) live in Punjab, where they comprise around 55 per cent of the population and hence are in the majority.

24. Noting DFAT’s assessment that Sikhs in India generally face a low level of official and societal violence and discrimination and that the applicant’s claims do not include anything to indicate or suggest that his circumstances are such that this assessment would not apply to him, the Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution involving serious harm for reasons of his religion or due to his race, nationality, membership of a particular social group, or political opinion.

25. As the Tribunal does not accept that the applicant faces a real chance of persecution involving serious harm the Tribunal finds that the applicant does not require the protection of the Indian authorities.

26. In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of his being removed from Australia to India, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[7]

    [7] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].

27. The applicant has not advanced any claims indicating that he considers he would face a real risk of significant harm if returned to India other than for the reasons discussed above relating to his claims under the refugee criterion.  Given the Tribunal does not accept that the applicant faces a real chance of suffering persecution involving serious harm if he returns to India, the Tribunal, having regard to the findings of fact set out above, also finds that there are not 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 would suffer significant harm in the form of being arbitrarily deprived of his life; having the death penalty carried out on him; being subjected to torture; being subjected to cruel and inhuman treatment and punishment; and/or being subjected to degrading treatment or punishment by the Hindu community, other non-Sikh religious communities or anyone else, should he be returned to India. 

28. 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 s.36(2)(a).

29. 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).

30. 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

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

    Paul Windsor
    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.

    …