1621650 (Refugee)
[2017] AATA 1608
•30 August 2017
1621650 (Refugee) [2017] AATA 1608 (30 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1621650
COUNTRY OF REFERENCE: India
MEMBER:Saxon Rice
DATE:30 August 2017
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 30 August 2017 at 9:11am
CATCHWORDS
Refugee – Protection visa – India – Particular social group – Arranged marriages – Threats of violence – Honour killing – Insufficient evidenceLEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 426A, 499
Migration Regulation 1994, Schedule 2CASES
BZADA v MIC and RRT [2013] FCA 1062
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155Any 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 [in] June 2016 and the delegate refused to grant the visa [in] November 2016. On 17 December 2016, the applicant applied to the Tribunal for a review of that decision.
The applicant was given an opportunity to appear before the Tribunal on 29 August 2017 to give evidence and present arguments however, he did not appear.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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 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).
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.
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.
CLAIMS AND EVIDENCE
The applicant’s claims in his application for protection filed [in] June 2016 are summarised as follows:
·The applicant's parents made an arrangement with another family when the applicant was aged about [age] (about 1996) that he would marry their daughter when they both came of age. The applicant fell in love with another girl who he wanted to marry but his parents got angry and refused to accept that marriage. The applicant's father and other family elders pressured the applicant to accept marriage to the girl to whom he had been promised and when he still refused they 'house-arrested' him. The applicant feared he would be forced to marry the girl against his wishes, so he played a trick on them and got them to agree to send him to Australia for studies, by promising that he would marry the girl they wanted him to marry when he completed his studies and returned from Australia. But after he came to Australia in 2009 he still refused to marry that he was promised to.
·The applicant returned to India in 2011 to see his girlfriend and try to convince his family to allow him to marry her. His family tried to forcibly marry him to the girl he was promised to but a friend helped him to escape to Delhi, where he stayed for about a week before returning to Australia.
·The applicant claims that since he has refused to marry the girl to whom he was promised her family is 'after' him. He claims they will 'finish' him because their family's honour and reputation has been tarnished and no one else has agreed to marry the girl since his refusal. The applicant claims that the girl's family will want to harm him if he ever returns to India and marries another girl and he fears they will kill him if he returns to India.
·When the applicant continued to refuse to marry the girl in 2011, her family sent men to ‘attack, thrash and manhandle him’. That is when he escaped to Delhi and spent a week in hiding. The applicant's own family tried again to 'house-arrest' him and forcibly marry him.
·The applicant approached the police to seek protection but the officer he spoke to just tried to convince him that his father and the elders of his family were right and he must honour the commitment they made to the other family. Other eminent persons in the locality also lectured him and told him to listen to his parents.
·The applicant was not able to relocate within India because he was dependent on his family for his daily needs, he was working in his father's shop, and he did not have any other independent source of income in order to support himself in India. He does not think relocation in India would be a good option as sooner or later he would be traced, and he does not want to live in hiding under a fear of being spotted one day.
The applicant has provided the Department a copy of his (expired) passport and Queensland Driver’s Licence.
The applicant attended an interview with the Department [in] November 2016. During that interview, he reiterated and expanded on his written claims including the following additional relevant evidence as set out in the delegate’s decision which the applicant provided to the Tribunal:
·The applicant’s home address in India is where his parents still live and it is a suburban address in the city of Ludhiana and not a village address.
·The applicant has monthly contact with his family members in India. The applicant's father paid for his student tuition fees in Australia. Initially his father also paid for his living expenses, but ceased providing him with financial assistance at the end of 2013. The applicant also worked casually in Australia collecting shopping trolleys, and then received assistance from friends after he lost his father's financial support. He cooked and cleaned for his friends and they paid him for his services.
·The applicant has not undertaken any study in Australia, as he could not afford the tuition fees himself for the course to which he wanted to switch. He came to Australia for study, but also because of family issues.
·The applicant applied for a [different] visa in 2011 after a friend advised him to withdraw his student visa application and helped him apply for the [other] visa. He knew that it would ultimately be refused.
·The applicant returned to India in late 2011 in order to have an [operation] in Ludhiana. He stayed with a friend in Delhi for about a week at the beginning of his trip to India, then with his parents in Ludhiana for the operation and his recovery, and then again in Delhi for about a week.
·The applicant returned to Australia from India in 2011 because of his family again trying to compel him to marry the daughter of his father's friend who lives in the village of [Town 1] approximately [number] minutes’ drive outside Ludhiana.
·The name of the girl to whom the applicant was promised is [Ms A].
·The applicant did not apply for protection visa earlier (particularly before he became unlawful) because he had wanted to try to convince his family to understand his feelings and allow him to do what he wanted. He cannot go back to India because no-one there can or will support him.
·The applicant said he could return to India provided his family was willing to accept him and his wishes. Members of [Ms A]’s family saw the applicant in Ludhiana in 2011, particularly her brother, and he wanted to bash him then, but there were only two of them whilst the applicant was with five of his own friends, so there was no physical fight between them, just insults. He believes [Ms A]’s brother, [Mr A], would kill him if he returns to India.
·The applicant said he cannot relocate within India because [Mr A] and his family have political links, and are already angry towards him. The applicant indicated that these political connections included the [relative] of the girl was at one time an elder of the village panchayat of [Town 1], although he is no longer in that position. Nevertheless, because they run a business in [Town 1] [Ms A’s] family is quite involved and influential with the village panchayat, and, by extension, some influence with the police.
·The applicant agreed that he could stay in Dehli, but not forever. Once [Mr A] and his family know that he has returned to India they would try to locate him and kill him. They would know that the applicant was in India or in Delhi, because he would get in touch with his [sibling] or other members of his family, and after six months or a year he would tell his family where he was and they would continue to convince him to marry. [Ms A]’s family has relatives all over India and some of those relatives went to his [sibling]'s wedding, have met him, and would therefore be able to identify him in the street, including if they saw him in Delhi and then [Mr A] would be able to come to Delhi himself and find the applicant and kill him.
·[Ms A] is still unmarried, as other prospective husbands have since refused her as well. The applicant agreed that it is normal for people in India to get married during their early 20s and he hoped that she would marry someone else which would release him from that responsibility.
·The girlfriend the applicant had in 2009 to 2011 is named [Ms B]; she is no longer his girlfriend as she is married, as of 2014, and has a baby. He has not had any other relationships since his relationship with [Ms B].
·The applicant agreed that if he did not tell anyone where he was living he would be able to live in safety. But there was still the chance that if something were to happen, such as being recognised in the street by a relative of [Mr A], then he would not be safe, because then he could be assassinated.
[In] November 2016, the delegate made a decision that the applicant is not a person in respect of whom Australia has protection obligations and refused his application for a Protection Visa.
The applicant has provided to the Tribunal a copy of the Department’s Decision Record dated [in] November 2016.
As noted above, the applicant lodged his review application with the Tribunal on 17 December 2016. The applicant did not provide any additional evidence in support of his claims for protection.
On 7 August 2017, 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 him to give oral evidence and present arguments at a hearing to be held on 29 August 2017. The letter advised that if he did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice or taking further action to enable him to appear before the Tribunal. The letter was sent to him, by email, at the address provided in his application for review. The Tribunal also sent SMS reminder messages to the applicant about the hearing, on 22 and 28 August 2017, to the telephone number provided in his application.
The applicant did not appear before the Tribunal on the day and at the time and place he was scheduled to appear. The applicant failed to contact the Tribunal to seek a postponement of the hearing, or to provide any reason why he could not attend at the scheduled time. In these circumstances, and pursuant to s426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.
Accordingly, this matter has been determined on the evidence available to the Tribunal.
Country of reference
The applicant claims and the Tribunal is satisfied on the basis of the personal details provided, that he is an Indian national. India is therefore the receiving country for the purpose of assessing the applicant’s claim for protection.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of India, there is a real risk he will suffer significant harm.
The Tribunal also notes that the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:
As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.
The applicant’s written claims were very general and relate to a fear that he will be harmed or killed if he returns to India by the family of a woman he was arranged to marry since 1996. The applicant claims that while his own family had tried to force him to marry the woman he was arranged to marry, he could return to India provided his family was willing to accept him and his wishes. However, the applicant is also concerned that if he relocated to another city in India, he might be found or identified by members of the woman’s family that he fears.
As the applicant did not avail himself of the opportunity to attend the hearing to provide further information, and in the circumstances set out above at [18], the Tribunal has decided the review on the information before it. Had the applicant attended the hearing, it would have asked him further detail about his claims and it would have been an opportunity for the applicant to address the various gaps in his claims and provide further information and details.
Among the claims on which the Tribunal has insufficient evidence before it are the following:
·Details regarding the marriage arrangement that occurred some twenty years ago, including how the families attempted to follow through with the arrangement in the years prior to the applicant’s travel to Australia and since.
·Why the applicant continues to fear the family of [Ms A] and whether the situation has changed in relation to [Ms A] and her family, or in relation to his own family.
·Why the applicant did not apply for a protection visa until almost seven years after he first arrived in Australia, and more than five and a half years after he last visited India.
The Tribunal has had regard to Department of Foreign Affairs and Trade (DFAT) and other country information for India to the extent that it is relevant to this review. However, on the limited available material, the Tribunal is not satisfied that the applicant has been involved in an arranged marriage in India that he has not fulfilled and has resulted in him being the target of harm by a woman’s family; that he has experienced any harm amounting to serious or significant harm; or that he continues to fear the harm claimed.
In sum, the Tribunal is unable to be satisfied that the applicant has ever been targeted by [Ms A], her family or his own family or would be targeted in the reasonably foreseeable future for failure to commit to an arranged marriage or for any other reason. The applicant has not claimed to fear harm from any other source, and no other claims are apparent on the information before the Tribunal.
CONCLUSIONS
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).
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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Saxon Rice
MemberATTACHMENT - 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.
…
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Immigration
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Administrative Law
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Statutory Interpretation
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Natural Justice
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